Altman v. Johnson
Circuit Court of the 39th Circuit of Michigan
Judgment upon report of referee in favor of the defendant for costs, removed to the Supreme Court by the plaintiff upon writ of error and judgment below affirmed. Defendants filed certified copy of the order of the Supreme Court affirming the judgment below, and took an execution from this Court to satisfy the judgment obtained therein.
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Judgment upon report of referee in favor of the defendant for costs, removed to the Supreme Court by the plaintiff upon writ of error and judgment below affirmed. Defendants filed certified copy of the order of the Supreme Court affirming the judgment below, and took an execution from this Court to satisfy the judgment obtained therein. Plaintiff moves to set aside the execution because, as he claims, 1. The execution should have isssued from the Supreme Court. 2. The record has not been returned from the Supreme Court. No remittitur filed in Circuit Court.
1Opinion of the Court
By the Court,
Pratt, J.
Supreme Court Rule 49, provides that final process shall be issued upon a judgment or decree of that Court. It cannot issue upon a judgment or decree of a Circuit Court. Unless the judgment below was specially included in the judgment of the Supreme Court, execution could not issue for the recovery of the same from the latter Court. The case of Lester vs. Sutton, 7 Mich., 329, which 'was a ease of reversal, decides that judgment “ for costs to be taxed,” included only the costs of the Supreme Court. It is true the case is not exactly parallel, but in any case I think…
2Cases cited1 opinion
- Lester v. SuttonMichigan Supreme Court · 1859