THE SINGER MANUFACTURING CO. v. ARMSTRONG. The Singer Manufacturing Company v. Underwood Evidence: Armstrong. Value of services. In an action for the value of services for labor performed upon a certain article, after the plaintiff had proved the services and their value. the defendant proposed to show what the article was worth when new and also what plaintiff had charged to furnish an article very similar to the one so repaired. Held, That the questions were irrelevant and incompetent. Heard January 8th. Decided January 11th. Error to Wayne Circuit. This was an action of assumpsit, brought to recover the value of services, and materials furnished, in repairing a counter in defendant's store. On the trial, the plaintiff was sworn, and testified that he was a carpenter, and repaired a counter for H. R. Joslin, agent of defendant below; that he sent two men at said Joslin's request, to do the repairs; that they worked twentytwo and one-half days upon the job; that he charged $3 per day for the same, and that the materials furnished by plaintiff amounted to $7.95. On cross-examination said plaintiff testified that he built the cashier's desk for defendant below about the same time the repairs were done on the counter, but could not say how many days it took to do it; that the desk was modeled after the counter, and was made like it; that it had glass on the top; that he told Joslin he would charge $125 for the desk if he would give him the front work; that the cashier's desk was fifteen or sixteen feet long. That he charged $10 per foot, and furnished everything. The counter repaired was from eighteen to twenty feet long on top. The counsel for said plaintiff, further to maintain the issue on his part, called Alfred Reeves and George Creasy, who gave evidence, tending to prove the time spent by them in and about said repairs to said counter, amounting in all WIXOM ET AL. v. STEPHENS ET AL. to twenty-two and a half days, as testified to by said Armstrong. After the introduction of further testimony, said plaintiff rested his case. And thereupon the counsel for said defendants called H. R. Joslin as a witness, who, after testifying that he was agent of defendants, that the counter, on which repairs were done, came from Chicago, and was from twenty to twentysix feet long, was asked by defendants' counsel, "What was this counter worth when new? What did plaintiff charge to build the cashier's desk new, and furnish everything? To each of which questions the said plaintiff objected. The court sustained the objections and excluded the evidence. To which ruling of the court the defendants, by their counsel, did then and there except. Judgment was rendered for plaintiff below. A writ of error was sued out, and the above rulings of the court assigned as errors. H. M. & W. E. Cheever, for plaintiff in error. Robinson & Brooks, for defendant in error. COOLEY CH. J. The questions put to the witness Joslin in this case, and which were overruled, were clearly irrelevant and incompetent, and the Circuit Judge was right in overruling them. The other Justices concurred. Isaac Wixom et al. v. John Stephens et al. Judgment: Merger of demand. A judgment which is ineffectual, by reason of amistake in the name of one of the plaintiffs, will not preclude them from bring ing a new suit to recover upon the original demand. A debt is not merged in a judgment until a valid judgment has been obtained upon it. WIXOM ET AL. v. STEPHENS ET AL. Adjournment of examination to another town: Depositions: Practice. The practice of adjourning the examination of witnesses, by the commissioner, to another town from that designated for the purpose, without the consent of parties, is of questionable propriety, and not to be encouraged. Where, however, a party did not attend at the time and place designated by his adversary for the taking of testimony, and the commissioner, owing to the absence of one of the witnesses, adjourned the examination to another day and another place, within the county, and, on such adjourned day, proceeded to take the testimony, it was held that, if the party had in any way been injured by the adjournment, his remedy was to apply to the court, on proper showing, to suppress the depositions; and an objection made at the trial to their being read, was properly overruled. Heard January 6th. Decided January 11th. Error to Genessee Circuit. This was an action of assumpsit upon a promissory note. The pleadings and the facts of the case are stated in the opinion. Judgment was rendered for plaintiff below. J. L. Topping, for plaintiffs in error. 1. The Justice, F. LaRue, before whom the suit was originally commenced, had jurisdiction of the case, and the plaintiffs appeared by their attorneys. The note having been given in the firm name of Stephens & Beatty, there was nothing in the process or pleadings in the case to notify the defendant, Isaac Wixom, Jr. or his attorney, that the suit was not commenced in the true name of the plaintiffs. The plaintiffs are estopped from setting up or proving the mistake. The note was merged in the judgment as to Isaac Wixom, Jr.-2 C. L. $3782; 4 Mich. 316; 4 Comst. 62. The note being merged as to Isaac Wixom, Jr., no action could be maintained against him severally, except on the judgment, and no action can be maintained against him and Isaac Wixom, on the note, except by the same parties who recovered the first judgment. If the note is not merged as to all the parties by the judgment in Justice Court the negotiability of the note is destroyed thereby. WIXOM ET AL. . STEPHENS ET AL. The judgment became a judgment of the Circuit Court of Ingham County, after filing transcript and docketing of the same.-2 C. L. $3788. When a court has jurisdiction its proceedings can not be impeached collaterally; nor when of record can there be any proof in opposition to the record.-1 Doug. Mich. 390; 1 Greenlf. Ev. § 19. A can not maintain a suit in his own name on a judgment in favor of B, even though it be averred and proved that the judgment was rendered in A's favor by the name of B by mistake.. 13 Mich. 40. 2. The taking of evidence by deposition is, in contravention of the common law, and the statute must be strictly complied with. If an adjournment of the time of taking a deposition is made by the person authorized to take the same, reasonable notice thereof must be given to the parties by him in case the parties do not appear.-31 Vt. 529. It is irregular in taking depositions to adjourn from the place where the adverse party has been served with notice to attend, to another place in the absence of such party. 20 N. H. 379. Objections may be made at the trial to depositions when notice of filing of the same with the clerk has not been given by the party taking the same.4 Mich. 554. The depositions being irregular there is no evidence to support the judgment. T. G. Smith, for defendants in error. 1. The judgment recovered before F. LaRue, Esq. if void as to the defendants in error, by reason of the misnomer in Stephen's name, could not be relied on as a bar to an action on the note. 13 Mich. 40, 43. Either the judgment is good, in which case it is a good ground for recovery, or it is void, in which event it leaves WIXOM ET AL. v. STEPHENS ET AL. the right to recover on the note complete. The two counts of the declaration, that on the judgment and on the note, being distinct and independent, setting up the judgment can not affect the right to recover on the note. 2. Isaac Wixom not having been personally served with the summons in the Ingham county suit, and not having appeared therein, that judgment, even though valid, does not merge the note; but the right to recover on the original cause of action in such cases is well settled.-4 Comst. 514; 9 Mich. 371–379. 3. The objection to receiving the depositions of Longyear and Carpenter in evidence, is purely formal and technical. No objection is made to the bona fides of its execution. Plaintiffs in error do not claim to have been misled or injured by want of notice of the adjournment. The commissioner remained at the place appointed two hours after the time first fixed, where it was their duty to appear, if they desired to attend the examination. But their failure to then appear shows they did not desire to attend.-9 Shepley, 357. The statute neither forbids an adjournment nor requires notice to be given of it, nor is such the practice in proceedings of this nature, nor in any other proceedings, when notice has been first duly given of a hearing. If the commissioner could not make this adjournment, he could not have adjourned the examination over night, after he had commenced, in order to complete it, without new notice. The attorney for plaintiffs in error had verbal notice of * the filing of such depositions, more than three months before the trial. COOLEY CH. J. Stephens and Beatty brought suit in the court below against the Wixoms, upon a promissory note made by them 17 MICH. 12. |