City of Eaton Rapids v. Houpt

• Decision Date: 28 October 1886
• Citation: 29 N.W. 860,63 Mich. 371
• Court: Michigan Supreme Court
• Parties: CITY OF EATON RAPIDS v. HOUPT.

29 N.W. 860

63 Mich. 371

CITY OF EATON RAPIDS v. HOUPT.

Supreme Court of Michigan

October 28, 1886

Error to Eaton.

H.S. Maynard, for plaintiff.

John M. Corbin, for defendant and appellant.

CHAMPLIN, J.

In the year 1883 defendant was pound-master in the city of Eaton Rapids, and, as such, received certain fees which he did not pay over to the city treasurer. An ordinance, the validity of which is not questioned, in force at the time, reads as follows:

"Sec 5. The pound-master shall, so often as he may be required by the common council, and at least once in six months render a true statement of all fees and moneys received by him by virtue of his office to the common council, and promptly pay to the city treasurer all fees and moneys due to the city, with an account of the names of the persons paying the same. The moneys reported so to have been paid to the treasurer shall be charged by the recorder to the general fund, and the moneys so paid to the treasurer shall be credited by him to the general fund."

This action was brought to recover the amount of these fees from the defendant. The defendant pleaded the general issue, and gave notice of set-off, and also of the following special defense: "That some time in the month of November A.D.1883, he made a report to the common council of the city of Eaton Rapids that he had received the sum of seven dollars pound fees, which he then owed the city; that such report was accepted, but whether any memorandum of such report was made on the recorder's minutes defendant is unable to state; that on the thirteenth day of November, A.D.1883, the said common council allowed a claim against the city in favor of the defendant for the sum of $8.10; that on the twenty-first day of November, A.D.1883, this defendant made an arrangement with the recorder of the city that he was to draw an order of $1.10 of said claim, and allow the seven dollars to remain in the city treasurer's hands to balance the said seven dollars pound fees; that this defendant has never drawn said seven dollars, nor any portion thereof, and that the common council of said city, and the recorder of the city, and city attorney, were notified of defendant's claim of payment before the commencement of this suit."

Upon the trial it was a disputed fact whether the defendant had left in the city treasury the amount of seven dollars which he directed the recorder to credit to the general fund to liquidate his liability for fees, or whether he had authorized it to be drawn and appropriated to the payment of a debt he owed to the recorder.

At the conclusion of the testimony the counsel for plaintiff moved to strike out the evidence introduced by the defense tending to establish a set-off, for the reason, if true, under the law and admitted facts of the case, it would not be a defense to the action. The court took this view, and directed a verdict for the plaintiff of seven dollars. The plaintiff's counsel contends that the action of the court was proper, for two reasons: (1) The suit was commenced before a justice of the peace, and a justice has no jurisdiction of actions brought against a municipal corporation; that a set-off is, in effect, a cross-action and therefore the justice had no jurisdiction to...