
    Joseph A. Tower v. The Detroit and Milwaukee Railroad. Company.
    A question as to whether a principle heretofore decided by the court is, or is not, applicable to errors assigned in a case now brought here by writ of error, is one to be discussed on the hearing, and not on motion to docket and dismiss.
    The question whether the plaintiff in error appeared and argued the cause in the court below, or consented to the judgment there entered, is one which cannot be raised on affidavit, on motion to dismiss the writ of error.
    
      Heard and decided July 12th.
    
    Error to Shiawassee Circuit.
    The action was originally brought by Tower in Justice’s court, where he recovered judgment, which was removed to the circuit court by certiorari, and there reversed. The allegations of error in the affidavit for certiorari were, first, that the service of the summons on the Railroad Company, in the court below, was irregular and void; second, that the judgment was against the evidence. The entry of judgment in the circuit court recites, in substance, that the cause having been brought on for argument, and ■ due deliberation being had, it is ordered, &c., that the judgment below be reversed.
    
      A. Gould, for defendant in error, now moves to docket and dismiss the case, because, first, plaintiff in error did not argue the case in the circuit court, but consented to the reversal of the judgment of the justice; second, 
      this court will not review questions of fact passed upon by tbe circuit court in such a case. On tbe second point, he claimed that error, both in fact and law, being assigned 'on. the certiorari, this court can not'presume that the reversal was upon the error of law, instead of the error of fact.
    
      B. McCurdy, contra.
    
   The Chiee Justice:

We have repeatedly decided that we will not reverse the judgment of the circuit court, oñ a question of fact in :such a case; but ivhether that principle is applicable to this case, should be discussed at the hearing, and not on such a ■motion.

Mr. Gould also offered affidavits, to prove the fact upon 'which his first position was based.

'Ohristiancy, J.:

Have you any authorities that hold you may show such a fact by affidavit, where the record does not dis‘close it ?

'Gould:

The affidavits are offered in aid of the record, which does not show that there was an argument.

The Chiee Justice:

We can not consider.a question of this nature on affi’davits. The motion must be denied.  