Brown v. Kelley

• Decision Date: 10 January 1870
• Court: Michigan Supreme Court
• Parties: Jacob L. Brown v. Lawrence Kelley

20 Mich. 27

Jacob L. Brown v. Lawrence Kelley

Supreme Court of Michigan

January 10, 1870

Heard January 6, 1870 [Syllabus Material]

Error to Kalamazoo Circuit.

The was an action of trespass on the case commenced by a warrant issued by a Justice of the Peace, upon an affidavit of which the following is a copy:

"State of Michigan, Kalamazoo County, ss. Lawrence Kelley of said county, being duly sworn, deposes and says, that he has a just cause of action and a demand not exceeding three hundred dollars, arising out of a contract against Jacob L. Brown, of the township of Kalamazoo, in said county, against whom he applies for process by warrant for a breach of trust in converting and disposing of the money of this deponent to the amount of two hundred dollars; and this deponent further says, that heretofore, to wit, on the 17th day of September A. D. 1866, he placed in the hands of Jacob L. Brown, the sum of three hundred dollars for safe keeping, to be kept by the said Jacob L. Brown until such time as this deponent should call for it; that the said Brown instead of returning to this deponent the said sum of money so entrusted to him, converted two hundred dollars of the same to his own use and now wholly refuses to return the same to this deponent.

The defendant was arrested and brought before the Justice, and upon giving bail was released from custody, and the cause was adjourned until the 10th day of September, A. D. 1867, at 10 o'clock, A. M., at which time the pleadings were to be put in. The proceedings on the adjourned day are stated in the affidavit for appeal thus: "On the 10th day of December, A. D. 1867, at the time aforesaid, said cause was called on for trial, and the parties appeared, whereupon this deponent moved to dismiss said cause on the ground of the insufficiency of the affidavit on which said capias ad respondendum was issued, that said motion to dismiss said cause was overruled, whereupon the plaintiff, said Lawrence Kelley, declared in an action of trespass on the case upon all the common counts in assumpsit, to his damage, two hundred dollars, to which this deponent pleaded the general issue and gave notice, &c. The cause was tried before the Justice without a jury, and he rendered final judgment on an issue of fact joined between the parties to said cause, in favor of the plaintiff, for $ 188.55, damages and costs of suit taxed at $ 5.00.

The affidavit for appeal further alleged "that the said judgment is erroneous for the following cause, to wit: That said Justice erred in holding and deciding on said motion to dismiss said cause, that the affidavit on which said capias ad respondendum was founded and issued, set forth a sufficient breach of trust to authorize and warrant the issuing of said capias ad respondendum although no demand of or call for the money therein and hereinbefore set forth was set forth in, or expressed in said affidavit."

The return of the Justice of the special matter alleged in the affidavit states: "And as to the matter stated and set forth in the affidavit to appeal said cause hereto annexed, I do further return that defendant moved to dismiss said cause on the ground of the insufficiency of the affidavit on which the warrant was issued, and that said motion was overruled."

The Circuit Court affirmed the judgment of the Justice, and the cause now comes into this Court by writ of error.

Judgment reversed with costs.

William Fletcher, for plaintiff in error.

I. The affidavit on which the warrant is founded states a conclusion of law. It does not set forth the facts and circumstances within the knowledge of the person making such affidavit constituting the grounds of the application, so as to authorize and warrant the issuing of said warrant. It simply states that plaintiff in error converted the money to his own use. It does not state that any demand was made of him for the money. Com. L. § 3671, (clause 3) § 3673; Decker v. Bryant, 7 Barb. 182; Caldwell v. Colegate, 7 Barb. 253; Wood v. Melius, 8 Allen 434; Chandler v. Nash, 5 Mich. 409; Wilson v. Arnold et al., 5 Mich. 98; Miles v. Coffinet, 16 Mich. 472; Proctor v. Prout, 17 Mich. 473.

II. The Justice who issued the warrant had no jurisdiction, inasmuch as the affidavit on which the warrant was founded, does not set forth a breach of trust, it simply alleging a conversion of, without stating that a demand was made for the money.

Severens & Burrows, for defendant in error.

The first four assignments of error are founded on the supposed insufficiency of the affidavit for the warrant. The case was instituted under § 3671 of Comp. Laws, authorizing proceedings by warrant in case of breach of trust. The affidavit states that the plaintiff deposited with defendant, a certain sum of money to be returned when called for, and that the defendant has converted part of the same to his own use, and now refuses to return the same to the plaintiff.

Alleging that a bailee has converted to his own use property placed in his hands merely for safe keeping, manifestly discloses a case of breach of trust.

Although we claim that this affidavit is ample to disclose a breach of trust, yet it would be a sufficient answer to the objection to say that it contains evidence to invoke the consideration of the justice, and he having held it sufficient, the court would not weigh the evidence to determine its adequacy. Rosenfield v. Howard, 15 Barb. 546. To the same effect are--Jackson v. People, 9 Mich. 111 and 3 Mich. 612; 8 Mich. 424; 10 Mich. 9; 11 Mich. 353.

But it is submitted that no question of the kind attempted to be raised by the special appeal, was available to the plaintiff in error in the court below. He appeared before the Justice applied for and obtained an adjournment, and on the adjourned day moved to dismiss on the ground of an alleged insufficiency in the affidavit. This being a case where by statute the Justice had jurisdiction of the subject matter, and the defendant having submitted his person to the jurisdiction of the Justice, he was too late with his motion to dismiss. Stewart v. Hill, 1 Mich. 265; ...