People ex rel. Hensler v. Circuit Judge for County of Wayne
| Decision Date | 26 April 1865 |
| Citation | 13 Mich. 206 |
| Court | Michigan Supreme Court |
| Parties | The People, on the relation of Augustus W. Hensler, v. The Circuit Judge for the County of Wayne |
Heard April 26, 1865
Motion for mandamus to the circuit judge for the county of Wayne.
Judgment was rendered against the relator, as defendant, before a justice of the peace, in an action of trover. The plea was the general issue. The relator appealed to the circuit court, and at the next following term, on motion of the plaintiff, and due notice to defendant (who did not appear, however), an order was granted by the court, allowing the plaintiff to file an amended declaration in assumpsit. To the amended declaration the relator did not plead.
Two terms of court subsequently elapsed, at both of which the case was noticed for trial. At the third term, the defendant moved to have said amended declaration stricken from the files, which was denied, and afterwards, during the same term, his default, for want of plea to said declaration, was entered and made absolute; but before judgment, he procured an order of the court staying further proceedings.
The relator made application for mandamus, to compel the circuit judge to strike from the files and records of said cause said amended declaration.
Mandamus granted.
H. M. Cheever, for the relator, argued that the court had no power to allow the filing of the amended declaration.
Ward & Palmer, for respondent, contra.
The Court held that the circuit judge had no power to allow an amendment of the declaration, so as to change the form of action from trover to assumpsit, and that the relator was entitled to a writ of mandamus to compel the circuit judge to strike the amended declaration in the cause from the files.
The case of The People v. The Judge of the Circuit Court for the County of Washtenaw, 1 Doug. 434, approved.
Mandamus granted.
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