American Boat Co. v. St. Clair Circuit Judge ( 1916 )

Ostrander, J.

(after stating the facts). 1. Mam damus is the proper remedy, because it is really the only adequate remedy. Appellant desires to retry the issue determined in justice’s court. If the order denying the right is reviewed by writ of error, and reversed, the cause must then be remanded for trial, with the right to review the final judgment by writ of error. By analogy, the case is most like one in which a delayed appeal is claimed, and is refused by the circuit court. In both cases the circuit court declines to take jurisdiction. In neither case does the order of the circuit court end the matter, because the judgment stands as the judgment of the justice’s court, to be enforced by its process. The case is manifestly unlike some of those cited and relied upon in the brief for respondent, in which the action of the circuit court sought to be reviewed is based upon something occurring in that court, as where an appeal is dismissed for want of prosecution. Fowler v. Pixley, 25 Mich. 513, Willis v. Gimbert, 27 Mich. 91, and Detroit, etc., R. Co. v. Eaton Circuit Judge, 128 Mich. 495 (87 N. W. 641), are such cases. And, unlike Stall v. Diamond, 37 Mich. 429, affidavits are required here to show that error was committed, if there was error. The return of the justice does not contain all of the facts relied upon.

2. The provision of the charter above referred to is interpreted as applying to all cases, whether tried by the justice or by a jury.

3. The meaning of the proviso limiting appeals is not, perhaps, entirely plain. The justices have jurisdiction, in assumpsit, to render judgment for any amount not exceeding $500. If a judgment for $50, or more, is rendered, either party, feeling aggrieved, may appeal. But the existence of judgment, for one party or the other, for $50 or more, does not, in all cases, determine the right to appeal. If so much of the claim of either is disallowed, the aggrieved party may appeal. It is clear that a judgment for $50 might be rendered in a case in which the plaintiff, asserting a claim for $10, is met by a counterclaim for $60. Suppose a plaintiff asserts a claim for $40, and is met by a counterclaim of $30, and a general verdict for defendant of $10 is returned, and a judgment for that sum entered for defendant. In such a case there is neither a judgment for $50, nor has the claim of either party been disallowed to the amount of $50, nor can it be ascertained how much of either original demand is allowed. It may be that all of plaintiff’s demand and all of the counterclaim, excepting $10, were disallowed. It may be that all of the counterclaim and $20 of plaintiff’s claim were allowed. In either event, the plaintiff is apparently unfavorably affected to the amount of $60 by the judgment. The uncertainty concerning how much of each of counterclaims has been allowed, when it exists, furnishes support for the argument that the appellate court, in determining whether an appeal has been properly taken, must in all cases consult and be bound by the record. The jurisdiction' of the circuit court to determine the appeal depends upon whether the record discloses either a judgment for $50 or the allowance or disallowance of a claim, asserted by either party, to the amount of $50; the aggrieved party, in the second case, having alone the right to appeal. This is what the statute says, and, in my opinion, this must be the meaning given to it. In-determining whether a claim of either party has been disallowed, the asserted claim of each must be contrasted with the judgment which was entered, unless it appears that for some reason (and usually it would be because of some ruling of the justice) the claim, or counterclaim, as the case may be, or some of it, was ordered withdrawn and excluded from consideration by the court or jury.

Aside from the particular language employed in the statute, this conclusion is sustained by the consideration that if the amount in controversy, or the amount involved, or. the respective claims of the parties, was the intended test, appropriate language to that effect would have been employed, although, where statutes have been so framed, differences of opinion exist concerning the right to consider, in determining the right to appeal, opposing claims of the parties. See the text and notes, 2 Cyc. p. 566 et seq.

I conclude that the court rightly dismissed the appeal, and that the writ should be denied, with costs.

Stone, C. J., and Kuhn, Bird, Moore, Steere, and Brooke, JJ., concurred. Person, J., did not sit.