Thomas E. Lynch Co. v. Wayne Circuit Judge ( 1901 )

Moore, J.

The relator has filed this petition, stating, in substance, that it was sued in justice’s court by C. D. Widman & Co.; that in that case the plaintiff appeared personally and by Wade Millis, an attorney at law in the employ of Graves & Hatch, who conducted all the proceedings in justice’s court; that judgment was rendered against relator March 16, 1901; that on the 26th of March, 1901, Mr. Graves made an affidavit before Mr. Millis as the basis of a transcript from the judgment, and a transcript was issued to the circuit court. An execution was issued. It was returned nulla bona, and afterwards a judgment creditor’s bill was filed. It also appears that in the course of the proceedings in that case, on May 27, 1901, the joint affidavit of Mr. Graves and Mr. Millis was filed, in which they state “they have had charge of the above-entitled cause from the time the bill of complaint was filed until the date hereof.” In the chancery cause the only solicitors of record are Graves & Hatch, and their names alone appear on the docket in the justice’s court case, as appears by the transcript of the justice. It is the claim of Graves & Hatch that they were the attorneys employed by C. H. Widman & Co., and that Mr. Millis was not employed by that corporation, and had no interest in the result of that suit; that he was simply acting as their agent in what he did in the justice’s court, and, when judgment was rendered in justice’s court, his connection with the case ended, and he had no professional connection with the case at the timé the affidavit for transcript was made. October 21, 1901, the relator applied to the circuit judge for an order striking the transcript from the files. The judge refused to grant the order. This is an application for a writ of mandamus to compel him to do so, for the reason that Mr. Millis was disqualified when the affidavit was sworn to before him, by reason of the provisions of section 2640, 1 Comp. Laws, which reads:

“It shall not be lawful for notaries public who are attorneys and counselors at law or solicitors in chancery to administer oaths in causes in which they may be professionally engaged.”

This motion is technical in its character, and should not prevail in this stage of the proceedings, unless relator has brought the case within the provisions of the law. It does not follow that, because an attorney has been employed in justice’s court, he continues to be the attorney for the party for whom he appeared after the judgment is rendered. In Clark v. McGregor, 55 Mich. 412 (21 N. W. 866), it was said, “ Nobody is standing attorney for a party toa judgment in justice’s court.” In Berkery v. Wayne Circuit Judge, 82 Mich. 160 (46 N. W. 436), it was said:

“ Parties may appear in justices’ courts and prosecute or’ defend either in person or by attorney. Such courts being of special and limited jurisdiction, the authority of the attorney extends no further than the proceedings before the justice.”

We think the relator has failed to show such a relation between Mr. Millis and the plaintiff in the case before the justice at the time the affidavit for a transcript was made as entitles the relator to the writ of mandamus.

The application is denied.

Montgomery, C. J., Long and Grant, JJ., concurred with Moore, J. Hooker, J., concurred in the result.