Lindow v. Mudge, 29.

• Citation: 266 Mich. 11,253 N.W. 196
• Decision Date: 06 March 1934
• Docket Number: No. 29.,29.
• Parties: LINDOW et ux. v. MUDGE et al.
• Court: Supreme Court of Michigan

266 Mich. 11

253 N.W. 196

LINDOW et ux.

v.MUDGE et al.

No. 29.

Supreme Court of Michigan.

March 6, 1934.

Appeal from Circuit Court, Wayne County; George W. Sample, Judge.

Suit by Herman Lindow and wife against Harry E. Mudge and others. A judgment was rendered for plaintiff, and later defendant was arrested under a writ of capias ad satisfaciendum. Defendant was later released on furnishing a jail limits bond, and subsequently moved that the capias be satisfied, and that the service be quashed, and, from an order dismissing the writ and discharging the sureties on the jail limits bond, plaintiffs appeal.

Reversed.

Argued before the Entire Bench.

Leroy W. Belanger and Frank P. Darin, both of Detroit, for appellants.

Arthur R. Kosel, of Detroit, for appellee Harry E. Mudge.

BUTZEL, Justice.

Herman Lindow and wife, plaintiffs, claiming that they had been induced to exchange their property for a farm through the fraud and misrepresentations of Harry E. Mudge and Christine D. Mudge, his wife, defendants, brought suit on the equity side of the court. The trial court ordered a transfer to the law side, and the case was tried before a jury, upon the theory of fraud, without any new pleadings being filed. The judge charged the jury that the only fraud claimed consisted of Mudge's misrepresentation that he would furnish $2,000 with which to enable plaintiffs to operate the farm. Plaintiffs claimed that, as a result of such misrepresentation, they had suffered a large loss, and the jury rendered a judgment for $9,000. Defendants then appealed to the Supreme Court, contending for the first time that the representations, if made, were only promissory in character, and did not constitute fraud. The case was affirmed in Lindow v. Mudge, 247 Mich. 624, 226 N. W. 656, wherein it was held that, in an action for fraud in the exchange of property, where no objection was made in the trial court to the admission of testimony of the misrepresentations relied upon, and no error was assigned on that account, and where there was no request for instructions that misrepresentations, only promissory in character, do not constitute fraud, judgment for plaintiffs would not be reversed on that ground. In the opinion written by Mr. Justice Fellows, it was stated that, upon the theory adopted by both parties in the court below as to what constitutes fraud, the verdict was neither excessive nor against the overwhelming weight of the evidence. The opinion leaves absolutely no doubt that the judgment was one in fraud.

After serveral writs of fieri facias were returned unsatisfied, a writ of capias ad satisfaciendum was issued on the 21st day of April, 1931, and defendant Harry E. Mudge was arrested thereunder. On the 29th day of April, 1931, Mudge was unsuccessful in an attempt to secure a mandamus requiring the sheriff of Wayne county to accept a bond that had been tendered. However, later on the same day, he was released from custody upon furnishing a jail limits bond to the sheriff. On April 18, 1932, after almost an entire year had elapsed, Mudge filed a motion in the instant case asking that the capias be set aside and the service quashed. He claimed, first, that the statutes authorizing the issuance of such a writ had not been complied with, and, second, that the service of the capias, and his arrest thereunder, were invalid on the ground that he was privileged from arrest at the time, as an attorney returning from the trial of a cause. The motion was granted on the first ground, and an order entered dismissing the writ and discharging the sureties on the jail limits bond. Plaintiffs thereupon took this appeal.

Defendant claims that the judgment was one founded upon contract, and that, therefore, under section 15378, C. L. 1929, he was immune from arrest, as no affidavit was filed showing proper grounds for arrest, as required in sections 15380 and 15381, C. L. 1929. The judgment was one in fraud, not in assumpsit. When the case was transferred to the law side of the court, it became an action on the case for fraud, and a capias ad...