Chase v. Circuit Judge ( 1892 )

To set asid© judgment on transcript from a justice of tbe peace.

Denied May 4, 1892, witb costs.

Relator insisted, that the affidavit, being made by an agent, was not made by one of the persons authorized by statute to make the same; that it did not state that “an execution may by law be issued upon” the same, nor that the judgment was “for $20 or over, exclusive of costs,” and did not set forth that the defendant “being the person against whom the execution may issue” did not have sufficient goods, etc.” Citing Act No. 173, Laws 1885.

Respondent insisted, that the terms “agent” and “attorney” are used interchangably; that an attorney is defined “as one who acts for another by virtue of an appointment by the latter;” that the statute does not require the affidavit filed with the justice to specify the amount due; that whether an execution might be issued appeared from the docket of the Justice, and that the language of the affidavit that ■“there is not sufficient goods,” etc., “belonging to any person or persons against whom such execution may issue” was sufficient, and further, that the transcript was filed September 10, 1890; that certain real estate had been levied upon and sold, and the time for redemption had expired; that relator was guilty of laches; Fowler vs. Circuit Judge, 31 M., 72 (943); that the petition does not set forth that relator has no other remedy; that relator has other remedies, Vrooman vs. Thompson, 51 M., 452; Wedel vs. Green, 70 M., 642; and that a motion is not the proper mode of reviewing the question,