Kirker v. Larson, Motion No. 452.

• Citation: 236 N.W. 896,254 Mich. 648
• Decision Date: 01 June 1931
• Docket Number: Motion No. 452.
• Parties: KIRKER et al. v. LARSON.
• Court: Supreme Court of Michigan

254 Mich. 648

236 N.W. 896

KIRKER et al.

v.LARSON.

Motion No. 452.

Supreme Court of Michigan.

June 1, 1931.

Appeal from Circuit Court, Wayne County; Lester S. Moll, Judge.

Action by John G. Kirker and others against Clarence E. Larson. From an order denying a motion to recall a body execution, defendant appeals.

Affirmed.

Argued before the Entire Bench.Monaghan, Crowley, Reilley & Kellogg, of Detroit (Stanley E. Beattie, of Detroit, of counsel), for appellant.

Lynch & Hinks, of Detroit, for appellees.

BUTZEL, C. J.

A judgment in tort in favor of plaintiffs Kirker against defendant Larson was affirmed by this court on condition that the amount thereof be reduced by the filing of proper remittitur. See Kirker v. Larson, 252 Mich. 136, 233 N. W. 177. The declaration filed in the lower court contained two counts in fraud and one in assumpsit, all relating to the same transaction. The assumpsit count was based upon an implied promise to repay the damages caused by the fraud; it ended with the common counts. The case was tried without a jury, and the trial court specificaly found defendant liable for fraud. The court said: ‘It is as much a legal fraud for one to make statements of which he has no knowledge or in reckless disregard of the truth as to make statements knowing them to be false.’

There not having been any election or waiver of counts by plaintiffs, nor any general verdict by a jury, but a finding by the trial judge that defendant was guilty of fraud, it removed all uncertainty on what counts the judgment was based. It was on the fraud counts, and not on the common counts, of the declaration. On defendant's motion, the trial judge amended his findings by stating that defendant did not make any representations with specific and willful intent to defraud. The judgment, however, remained one in tort.

Plaintiffs sued out a capias ad satisfaciendum or body execution. Defendant appeals from the order denying a motion to recall this body execution. He claims that by combining the counts in tort with the one in assumpsit plaintiffs waived the right to the issuance of a body execution; that on account of the court's amended findings the defendant was not guilty of specific and willful intent to defraud; that the prohibition of the Constitution of the state of Michigan against imprisonment for debt protects defendant from being taken on a body execution.

Under section 14007, Comp. Laws 1929, plaintiffs might have brought an action on the case for fraud or one in assumpsit arising out of an implied promise of repayment on account of the fraud. In either case, upon a proper declaration and affidavit being filed, a capias ad respondendum could have been issued. Section 14074, Comp. Laws 1929; Mintz v. Jacob, 163 Mich. 280, 128 N. W. 211. It was not improper to add the common counts to the special count in assumpsit arising out of implied promises of repayment on account of fraud. First National Bank v. Steel, 136 Mich. 588, 99 N. W. 786;Hogle v. Meyering, 161 Mich. 472, 126 N. W. 1063. It would not have been proper to sue on the common counts without a special count. Burchy v. Carpenter, 181 Mich. 78, 147 N. W. 612. In the present case, as defendant was specifically found guilty of fraud, the common counts neither added to nor subtracted from the other claims set forth in the declaration and had the same effect as if they were surplusage.

Section 14075, Comp. Laws 1929, in providing when a case may be started by a writ of capias ad respondendum on tort claims, states: ‘Personal actions may be commenced by capias ad respondendum in cases of claims...