August v. Collins

• Decision Date: 03 October 1932
• Docket Number: No. 7.,7.
• Citation: 244 N.W. 458,260 Mich. 232
• Parties: AUGUST et ux. v. COLLINS et al.
• Court: Michigan Supreme Court

260 Mich. 232

244 N.W. 458

AUGUST et ux.

v.COLLINS et al.

No. 7.

Supreme Court of Michigan.

Oct. 3, 1932.

Appeal from Circuit Court, Wayne County; De Witt H. Merriam, Judge.

Action by Isaac August and wife against James J. Collins and others. From an order of dismissal, plaintiffs appeal.

Reversed and remanded, with directions.

Argued before the Full Bench.

Samuel Shimans, of Detroit, for appellants.

McLeod, Fixel, Abbott & Fixel and Arthur J. Abbott, all of Detroit, for appellee Cohane.

Charles F. Meyler, of Detroit, for appellee Harold Smilay.

SHARPE, J.

Plaintiffs took proceedings under section 14975, et seq., Comp. Laws 1929, before a circuit court commissioner to recover possession of certain real estate in the city of Detroit, which they had contracted to sell to the defendant Collins, for his failure to make the payments provided for therein, and obtained a judgment of restitution on August 2, 1923. The Barnard Toy Company, to which Collins had assigned his contract, was made a party thereto. An appeal therefrom was taken by the defendants therein to the circuit court, where a judgment of restitution was entered on April 22, 1924, and a finding made that there was due plaintiffs the sum of $8,655 and that they were entitled to recover $56.65, costs of suit. On appeal to this court, submitted on June 23, 1927, and decided on July 29th of the same year, this judgment was affirmed. August v. Collins, 240 Mich. 23, 214 N. W. 951.

On taking the appeal to the circuit court, the defendants, pursuant to section 14987, executed a bond, with themselves as principals and the defendants Smilansky and Cohane as sureties, in the sum of $20,000, conditioned that the principals therein ‘shall prosecute said appeal with all due diligence to a decision in said Circuit Court, and if a judgment shall be rendered against him in said court, shall pay the amount of said judgment, including the costs of said appeal, and in case the said appeal shall be dismissed, if the said Barnard Toy Co., a Michigan corporation, and J. J. Collins shall pay the costs of said appeal, then this obligation to be void, otherwise to remain in full force and virtue.’

It also contained the following: ‘The further condition of this obligation is such, that in case the said Isaac August shall obtain restitution of the premises described in this complaint in this suit, if the said Barnard Toy Co., a Michigan corporation, and J. J. Collins shall forthwith pay all the rent due or to become due this complainant for the premises above described up to the time said complainant shall obtain restitution thereof, then this obligation to be void, otherwise to remain in full force and virtue.’

Isaac August alone was named as the obligee therein. It does not appear that any bond was filed on appeal to this court.

On September 20, 1924, plaintiffs brought this action to recover upon the appeal bond. In their declaration first filed, on November 11, 1924, they alleged the execution of the contract, attaching a copy thereto, its assignment to the Barnard Toy Company; the default in making payment thereunder; its forfeiture; the proceedings before the circuit court commissioner and the recovery of judgment of restitution; the appeal of the defendants to the circuit court and the filing of the bond sued upon numbered 24,934); the trial in the circuit court on April 22, 1924, wherein plaintiffs recovered; that a writ of restitution was duly issued ‘on or about the 20th day of May, 1924’; that the defendants were in possession to the exclusion of plaintiffs until the 1st day of August, 1924, a period of fourteen months; that plaintiffs have sustained damages for the loss of fourteen months' rent at $1,000 per month; mortgage tax paid, $405, and costs $56.65.

In proceedings thereafter had, in which the default of some of the defendants was set aside, the plaintiffs were, by order of the court, permitted to file an amended declaration. They did so on January 11, 1928. A copy of the bond was annexed thereto, and claim made that under it the plaintiffs were entitled to the rental value of the premises during the time the defendants unlawfully retained possession thereof.

The case came on for hearing before the court without a jury on April 29, 1931, and, on plaintiffs' motion, the claim for rent was changed to expire on July 1, 1924, instead of October 1, 1924, as stated in the amended declaration. After much argument and colloquy of counsel as to the sufficiency of the declaration, the matter was taken under advisement by the court.

On May 18, 1931, the defendants filed a motion to dismiss, for the reason that the declaration first filed did not state a cause of action, and that, as amended, it states a new and separate cause of action and, as such, is barred by the statute of limitations. Other questions were raised which will be hereafter referred to. This motion was granted and the cause dismissed, from which the plaintiffs have taken this appeal.

Although stated somewhat imperfectly, we think the original declaration stated a cause of action. The form of the bond on such an appeal is prescribed by the statute. Section 14987. Under the circuit court rule then in force (No. 21, § 6), it was not...