O'Brien v. Tallman
| Decision Date | 23 January 1877 |
| Parties | Patrick O'Brien v. Aaron Tallman |
| Court | Michigan Supreme Court |
Heard January 17, 1877
Error to Kalamazoo Circuit.
Judgment affirmed, with costs.
Robert F. Hill, for plaintiff in error.
Balch & Howard, for defendant in error.
The action in this case was commenced in justice's court upon a replevin bond. Judgment was rendered in favor of the plaintiff and the cause was then appealed to the circuit court, where a trial was had upon the merits, and judgment rendered for the defendant. The case comes here on writ of error to the circuit court. A number of questions were raised and discussed, but on account of an inherent defect in the plaintiff's case, it will be unnecessary to consider them, the plaintiff not being injured by the rulings, if erroneous, as under the facts offered and introduced in evidence, plaintiff was not entitled to recover in this action.
Plaintiff in his declaration alleges, after setting forth the proceedings in the replevin suit, that a judgment was recovered in said cause before the justice against the plaintiff therein and in favor of the defendant for ninety dollars damages and costs of suit, taxed at six dollars, upon which judgment and execution was issued and returned unsatisfied. This action is brought to recover the amount of that judgment. It appears in this case that the writ of replevin was issued upon the 18th day of February, 1873 returnable on the 28th; that upon that day the parties appeared, when a motion was made on behalf of the defendant that the suit be dismissed, upon the ground that the affidavit was insufficient, which motion prevailed; when the defendant waived a return of the property, evidence was given as to its value, and defendant moved that judgment should be rendered in his favor for the value as testified to, which the justice refused, but did render judgment for a return of the property, with costs against the plaintiff.
It also appears that a peremptory writ of mandamus was issued out of and under the seal of the circuit court for the county of Van Buren, on the 9th day of September, 1873 directed to the justice by whom said judgment was rendered, commanding him immediately upon receipt of said writ "to render and enter a judgment in his docket in due form in favor of the defendant John E. Showerman and against the plaintiff Rhoda Ann Williams, for the value of said property replevied, as proved, and costs of suit, and that all judgment and entry in said cause inconsistent therewith be vacated, abandoned, and held for naught." In obedience to this writ, the justice made an entry...
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