
    Mark McGraw v. Charles H. Schwab and others.
    
      Certiorari raises only questions of law. Upon certiorari from the circuit court to a justice of the peace under the statute of this state {Comp. Z., §§ 3868 to 888k) only questions of law so far as relates to the action itself, can be tried, another remedy by appeal, having been provided in the same chapter (Comp. Z., §§ 3885 to 3867) for trying the general merits of the cánse upon the weight of evidence.
    
      Affidavit and return must show that question of law was raised on trial: Evidence not to he weighed. Where neither the affidavit upon which such writ of certiorari issues, nor the return of the justice of the peace, which purports to give all the evidence in the case, shows that any objection was taken to any of the evidence introduced on the trial, or to any process, pleading, or proceeding before the justice, or that any question of law was raised on the trial, and the only error complained of in the affidavit is that the testimony given on the trial demanded a different verdict from the one rendered, the trial having been by jury, and the testimony being such as to warrant the jury in finding the verdict which was found, no question of law is presented by the proceedings for the circuit court to pass upon.
    
      Defective affidavit. Snch affidavit, though sufficient for a general appeal, furnishes no proper basis for the writ of certioraH.
    
    
      Jurisdiction of circuit court on certiwari to justice of the peace. — Such proceedings gave the circuit court no jurisdiction to review the cause, either upon the facts or the law, and therefore no authority to alter the judgment of the justice* Such judgment should have been affirmed or the proceedings dismissed with costs.
    
      Heard April 21.
    
    
      Decided April 25.
    
    Error to Wayne Circuit.
    The proceedings, except the form of the affidavit for writ of certiorari, and of the return of the justice of the peace to such writ, are sufficiently stated in the opinion.
    
      The affidavit, after stating the manner of commencing the action, the appearance of the defendant, the pleadings, and the proceedings for summoning the jury, and that the jury were duly sworn (upon which no question was raised), and that the parties proceeded with the trial, continues as follows, viz.:
    “That upon the trial the following evidence was given, to wit: The plaintiffs offered in evidence the duplicate ‘proof of demand,’ with proof of the service thereof on said defendant, and annexed to the summons by which said suit was commenced, and then rested.
    “That the defendant, on his own behalf, testified as follows : That in November, 1869, one Cook, representing himself as an agent of the plaintiffs, called on the defendant at his place of business in Detroit, and solicited an order on the plaintiffs for such goods as are described in the plaintiffs’ bill of particulars; that after some hesitation he, the defendant, gave the order verbally, the goods to be shipped by the plaintiffs from their place of business in Chicago, Illinois, to him, the defendant, in Detroit, and at his expense; that the goods were duly shipped and consigned to the defendant according to said order, over the Michigan Central railroad; that about one month after the giving of said order, Mr. McQuaid, one of the plaintiffs, met the defendant in Detroit, and asked him whether the goods had arrived, and defendant having answered that he had received no notice of their arrival, Mr. McQuaid told defendant that the goods had been in the depot of the Michigan Central railroad, at Detroit, for three weeks, awaiting defendant’s orders; that he, defendant, at first did not wish to take the goods, as he was soon going out of the liquor business, but nevertheless said he would do so, and thereupon went to the depot, paid the freight, took away the goods, and kept them until he sold them; that the goods were worth eighty-five cents per gallon in the Detroit market when received, as defendant was told by others, and that they have steadily declined in price ever since; that when the order for the goods was given to Cook, the price was not mentioned; that about May 1, A. D. 1870, he, defendant, sold the goods in question in Detroit, and obtained at the rate of $1.15 per gallon for one barrel, and at the rate of $1.05 per gallon for the other four barrels; that the number of gallons sold was about 204; that the liquor was not measured by the defendant until sold; that the shrinkage of a barrel of liquor during a period of three or four months is from one to four gallons; that the identical goods mentioned in the bill of particulars of the plaintiffs were not ordered, but it was the defendant’s intention (so understood by Cook) to order goods answering to their description, to be selected from a large stock of similar goods in the plaintiffs’ store in Chicago; that the plaintiffs, when the order was given, were liquor-dealers, in Chicago.
    “ And this deponent further saith, that the preceding is a substantial statement of the testimony and proceedings before said justice and jury; that after said testimony was given, the cause was submitted to said jury, who, after due deliberation, rendered a verdict against said plaintiffs, of no cause of action; and that thereupon said justice rendered judgment of no cause of action against said plaintiffs, together with the costs of said suit, found by said justice to be the sum of six dollars.
    “And this deponent further saith, that said judgment is erroneous, for the reason that the testimony given on the trial of said cause demanded that a verdict and judgment for damages should have been given in favor of said plaintiffs, and against said defendant.”
    The return of the justice as to the proceedings on trial, was substantially a copy of the affidavit, and. contained a certificate that it stated all the testimony given on the trial.
    The circuit court reversed the judgment of the justice, and rendered judgment for the plaintiffs below, defendants in error.
    
      B. T. Prentis and G. I. Walker, for plaintiff in error.
    The circuit court erred in rendering judgment in favor of plaintiffs. This was an exercise of power not granted the circuit court by the statute. The judgment of the justice was for the defendant, and the power of the circuit court over this judgment, by virtue of a writ of certiorari, is entirely statutory. There are just three things they may do: 1. Affirm the judgment below. 2. Reverse it in whole. 3. Reverse it in part. And this is all. — 2 OompL., § 3881.
    
    Under the territorial laws the decisions of a justice court could not be reviewed by certiorari. — Laws of 1838, p. 202, § 19. So except in a few cases under the revised statutes of 1838. — Rev. Statutes 1888, pp. 493, 899. So under revision of 1846. Under the.county and court act of 1849, the circuit court was clothed with the power of examining the decisions of the county court on certiorari, 'and could — 1. Affirm the judgment below. 2. Reverse it in whole. 3. Reverse it in part. 4. Give such other judgment as justice should require. 5. Remand the cause for a new trial. — Laws of 1849, p. 290, § 76.
    
    In the justices’ act of 1855, the language of this very section was copied verbatim so far as relates to the first three provisions, but the others were omitted. — Berry v. Lowe, 10 Mich., 9.
    
    The court also erred in reversing the judgment of the justice. No question of law was passed upon by the justice court; therefore, to authorize the circuit court to reverse the judgment of the justice there must have been — 1. Evidence to authorize and require a judgment for plaintiffs; and, 2. A total want of evidence authorizing a judgment for defendant. The court will not in these cases weigh the testimony. —Berry v. Lowe, 10 Mich., 9; Hyde v. Nelson, 11 Mich., 357. These cases are decided in accordance with an almost uninterrupted current of decisions. — Noyes v. Hewitt, 18 Wend., 145; Bort v. Smith, 5 Barb., 285; Jackson v. Timmerman, 12 Wend., 800. Nor will the court reverse the finding of a jury when a question compounded of law and fact has been properly submitted to them. — Foot v. Wiswall, lit Johns., 307; Hyde v. Stone, 9 Cowen, 230. The record shows no such state of facts as would authorize a reversal of judgment.
    
      O. J. O’Flynn, for defendants in error.
   Christianot, J.

Defendants in error brought a suit in a justice’s court against the plaintiff in error for certain liquors alleged to have been bargained and sold to plaintiff' in error at Chicago.

The defendant below (plaintiff in error) pleaded the general issue, and gave notice, in substance, that he would prove that the liquors were sold and delivered in the state of Michigan, and that such sale was void under the statute (known as the “liquor law”).

The case was tried before a jury, who found a verdict for the defendant (below) upon which the justice rendered judgment of no cause of action. The cause was removed to the circuit court for Wayne county, by a writ of certiorari.

From the affidavit upon which the writ was issued and the return of the justice, no objection appears to have been taken to any of the evidence introduced on the trial, all of which purports to be given in this return; nor was any objection made to any process, pleading or proceeding before the justice; nor does it appear that any question of law was raised on the trial, though we may infer from the nature of the evidence, and especially from the arguments before us, that the main question probably discussed on the trial was, whether the sale was made within or without the state; and that there was also some question as to the value of the liquors, — the testimony being such as to warrant the jury in the finding of the verdict which was found in the case, whether they might have found the other way or not, according to the weight or credibility of the testimony.

The only error complained of in the affidavit is “that the judgment is erroneous, for the reason that the testimony given on the trial demanded that a verdict for damages should have been given in favor of the plaintiffs and against the defendant.”

From this statement of the case, it is evident, 1st. That no question of law was presented to the circuit court, either by the affidavit for the writ or the return of the justice.

2d. That questions of fact only were presented upon the weight of the evidence, or the general merits of the case upon the whole evidence, which had already been determined by the jury; and,

3d. From the nature of the proceeding, by certiorari, as provided by the statute (Comp. L., §§ 8868 to 888Jj), it is equally evident that questions of law only (so far as relates to the action itself) can be tried in this proceeding; the same chapter (Comp. L., §§ 8885 to 8867) having provided another remedy — a re-trial upon appeal — for trying the general merits of the cause upon the weight of evidence;. and that the affidavit on which the certiorari issued, though sufficient for a general appeal, furnished no proper basis for the writ of certiorari.

It is, therefore, quite manifest that, under the affidavit and the return, the circuit court had no jurisdiction to review the cause, either upon the facts or the law, and therefore no power to alter the judgment of the justice; and that he should either have affirmed the judgment or dismissed the proceeding with costs.

But, inadvertently, as we must suppose, he not only proceeded to reverse the judgment of the justice, but to render a judgment for the plaintiffs for the amount which, in his opinion, they ought, upon the evidence, to have recovered; and this in direct opposition to the verdict given by the jury upon tbe evidence, to which no objection had been taken, and of which they were the exclusive judges.

This was clearly erroneous, and the defendant below having removed tbe cause to this court by writ of error, the judgment of the circuit court must be reversed and that of the justice affirmed; and the plaintiff in error must recover his costs in this and the circuit court.

The other Justices concurred.  