Clark v. Gage

• Decision Date: 05 January 1870
• Court: Michigan Supreme Court
• Parties: Joseph D. Clark v. Richard Gage

19 Mich. 507

Joseph D. Clark v. Richard Gage

Supreme Court of Michigan

January 5, 1870

Heard October 28, 1870 [Syllabus Material] [Syllabus Material]

Error to Branch Circuit.

This case was brought into the Circuit Court for the County of Branch, by appeal fro the judgment of the Circuit Court Commissioner of that County, rendered in a proceeding to recover possession of lands, instituted under the provisions of chapter 150 of the Compiled Laws. The complaint was in the words following:

"State of Michigan--Branch County, ss. Richard Gage being duly sworn, makes complaint, and on his oath says that Joseph D Clark is now in the possession of the following described lands and premises, to-wit: A farm in the town of Quincy, in said County, lately occupied by complainant, being the same farm mentioned in the writing executed between the said Clark and complainant, and dated November 24, 1866, by which complainant let the said farm to the said Clark. That the complainant let said farm to the said Clark for one year, and although that period has now elapsed, yet the said Clark is now holding over said premises after the time for which they were let to him as aforesaid. That he holds the said lands and premises unlawfully, and against the rights of this complainant, and that this complainant is now entitled to the possession of the same."

A summons was issued on the complaint, to which the defendant appeared, and moved that the writ be quashed, and the proceedings in the cause dismissed, upon the following grounds: 1. That said complaint did not sufficiently describe the premises of which possession is sought to be obtained. 2. That the said writ was not made returnable within or at the time provided by law. 3. That the writ is too general--that it is to answer to chapter 150 of the Compiled Laws and acts amendatory thereto, without specifying as to which particular causes of action contained in said act or acts said defendant was to answer. The objections were overruled, and the ruling excepted to by the attorney for defendant. The defendant pleaded not guilty to said complaint, and upon the trial a judgment was rendered against the defendant; from which he appealed to the Circuit Court.

The same objections to the complaint were specially raised in the Circuit Court, and being there overruled, the parties proceeded to trial, which resulted in a judgment for the complainant; and the case now comes before this Court by writ of error.

Judgment reversed with costs.

M. S. Bowen and A. Russell, for plaintiff in error.

I. It is contended by plaintiff in error that the complaint is defective in not sufficiently describing the premises. What is necessary to be set forth in a complaint? Comp. Laws, § 4, 986; Laws 1858, p. 10, § 18; Laws 1861, p. 465, § 13; Royce v. Bradburn, 2 Doug. 377; Caswell v. Ward, 2 Doug. 374; Davis v. Ingersoll, 2 Doug. 372; Bush v. Dunham, 4 Mich. 339; Bryan v. Smith, 10 Mich. 229.

II. Reference to another paper does not aid a complaint, unless it or a copy thereof is attached thereto and made a part thereof.

The description should be such an one as is known to the law--that is, it should state on what lot or lots, section or sections, or part thereof, it is situated, and the town, range, etc., and as particularly as in an action of ejectment; or at least, such a description should be given of the premises, in the complaint as would enable the officer whose duty it might be to restore the possession of the premises to the complainant, to find the same without extrinsic aid.

Shipman and Loveridge, for defendant in error.

The defendant below brings error to the Circuit, selecting and assigning as error only the rulings upon the motion to quash.

I. Section 4,998 does not contemplate or include the appeal mentioned in Sec. 3,836 of the Justice's act. It is taken from the statutes of 1846, p. 545, Sec. 25, and means just the same and no more now, than when it was enacted into a law. At that time appeals from Justices, after a plea and trial upon the merits (as in this case), meant only a new trial in the Appellate Court upon the merits. The ruling upon "any objection to the process, pleading, or other proceedings" of the Court below could not then be reviewed on appeal, but only by certiorari. Wood v. Randall, 5 Hill 267; Malone v. Clark, 2 Hill 657; Agreda v. Faulberg, 3 E. D. Smith, 178; Shaw v. Moser, 3 Mich. 71. We do not understand Sallee v. Ireland, 9 Mich. 154, as affecting this point.

II. The assignment of error in the Circuit upon the rulings of the Commissioner was not sufficiently specific. Appeals under Sec. 3,836 are so much like certiorari proceedings that they must be governed by the same rules. Where any assignment of error is required this one would not have been sufficient. See Fowler v. D. & M. R. Co. 7 Mich. 79; Altman v. Wheeler, 18 Mich. 240; Deuchars v. Wheaton, 16 How. Pr. 471. And the Court below was bound to disregard it and affirm the rulings of the Commissioner. Derby v. Hannin, 5 Abbt's Pr. 150; Bush v. Dennison, 14 How. Pr. 307. At all events, this general objection taken to the Commissioner's rulings was not available unless each and all of the rulings were wrong. Van Kirk v. Wilds. 11 Barb. 520; Carland v. Day, 4 E. D. Smith, 251.

III. The motion to quash was based upon the ground that the complaint did not sufficiently describe the premises. There is no reason for strictness in the rule. The proceeding does not affect the title to the premises; and, therefore, if the complaint notifies the immediate parties of the premises meant, that is sufficient. There is no pretense that it did not do this. It will not do to say the Sheriff could not find the premises by this description, for that is not true. He could find them much easier than if described by town and range. In trespass, before the rules requiring a particular description in England, the locus was described simply as "the close of the plaintiff," in Parish. Since the adoption of the rules, the name of the close being added was sufficient.--2 Chitty Pld. 866-7. In ejectment, the premises are only described by name.--Ibid Ad. Eject. 24. So that the description in the complaint is more than sufficient to satisfy the rule in either of those actions. Sec. 4,561, Comp. Laws, requires in ejectment, perhaps, a description by town and range where that is possible; but if necessary in detainers, why did not the statute say so? In Davis v. Ingersoll, 2 Doug. 373, this description was not questioned: "A certain tenement and dwelling house of right in the occupation and possession" of complainant. In Farwell v. Fox replevin (18 Mich. 166), the property was described as "six oxen" simply, but it was held sufficient. Is there any reason for a stricter rule in proceedings to recover possession of land, than in actions to recover personal property.

OPINION

Graves, J.

This was a proceeding instituted before a Circuit Court Commissioner, to recover the possession of land in the summary manner authorized by chapter 123 of the revised statutes of 1846.

The complainant, Gage, recovered judgment before the Commissioner, when Clark carried the case by appeal to the Circuit Court, where judgment was again given in favor of Gage.

The defendant, Clark, now brings error in this Court, and claims that the complaint upon which the trials below were had, did not contain a sufficiently certain description of the real estate, of which Gage sought to recover possession, to warrant a judgment of restitution, after objection made upon the ground of such supposed insufficiency.

The objection to the complaint was taken before the Commissioner and was judged untenable; and was afterwards, on appeal, specifically raised and overruled in the Circuit Court; and that decision is now explicitly assigned for error. The point is therefore open for discussion in this Court. Laws, 1861, pp. 465, 466; Sallee v. Ireland, 9 Mich. 154; Farrell v. Taylor, 12 Mich. 113.

The statute (Laws 1867, pp. 88, 89) requires that the complaint, which is the foundation of all the subsequent proceedings, should "describe the land or tenements" in question, and the defendant can only be found guilty of an unlawful detention of the whole or some part of the premises as they stand described in the complaint.--§ 5,001 Comp. L.

The writ of restitution must necessarily follow the judgment based on such finding, and guide the officer in putting the complainant in...