Delashman v. Berry

• Decision Date: 18 October 1870
• Citation: 21 Mich. 516
• Court: Michigan Supreme Court
• Parties: William N. Delashman et al. v. Ezra Berry, executor of George A. Kellogg

21 Mich. 516

William N. Delashman et al. v. Ezra Berry, executor of George A. Kellogg

Supreme Court of Michigan

October 18, 1870

Heard October 6, 1870 [Syllabus Material]

Error to Branch circuit.

This was an action of debt brought by Ezra Berry, executor of George A. Kellogg, in the circuit court for the county of Branch, against William N. Delashman, Franklin L. Warren, and Thomas J. Bridge, upon a bond executed by Delashman as principal and the other two defendants as sureties. The declaration recites a proceeding before a circuit court commissioner by the plaintiff's testator against the defendant Delashman to obtain restitution of premises under chapter 150 of the Compiled Laws, a judgment against Delashman, and an appeal to the circuit court, on which the bond declared on was given, the condition of which was "That in case the said George A. Kellogg shall obtain restitution of the premises described in the said complaint in said suit, upon the said appeal, if the said William N. Delashman shall forthwith pay all the rent due or to become due to the said George A. Kellogg, complainant, for the said premises up to the time when the said George A. Kellogg, complainant, shall obtain possession thereof, together with costs of suit, in prosecuting said complaint and obtaining restitution of the said premises, then the said obligation to be void."

The breach of the bond was assigned in these words: "On the 4th day of April, 1868, such proceedings were then and there had in the said appeal of the said William N. Delashman in the circuit court for the county of Branch, that by the consideration and judgment of the said court it was amongst other things ordered and adjudged that the said complainant in said suit have restitution of the premises described in the said complaint in said cause, and that the said complainant in said cause do recover against the said William N. Delashman his costs and charges by him about his suit in that behalf expended to be taxed, and that he have execution thereof--of all of which the said defendants afterwards, to wit: on the day and year last aforesaid, had notice. And the said plaintiff further says that the said William N. Delashman did not forthwith pay the rent due, or to become due, to the said George A. Kellogg, complainant, for the said premises up to the time when the said complainant obtained restitution of the same, as aforesaid, together with the costs of suit in prosecuting said complaint and obtaining restitution of the said premises, which were by the said court awarded and adjudged against the said William N. Delashman," etc.

The defendants pleaded the general issue, and on the trial before the court without a jury, the court found for the plaintiff, and assessed his damages at the sum of three hundred and seventy-one dollars and eighty-six cents, and the judgment entered thereon comes into this court by writ of error.

Judgment reversed with costs in both courts, but no new trial awarded, as no cause of action is stated in the declaration. Record remitted to that court to enable it to exercise discretion.

Shipman & Loveridge, for plaintiffs in error:

I. The declaration shows only a judgment obtained in the circuit court. Is that sufficient? Suppose that judgment should be reversed in this court? In appeals from justices a judgment in that court authorizes a recovery upon the appeal bond at once: Laws of 1867, p. 86, and 2 C. L., § 3866. But this act contains no such language. See Kershaw v. Cartwright, 5 Burr. 2819.

II. The bond was conditioned to "pay all the rent due and to become due the complainant for the premises described in the complaint up to the time said complainant should obtain possession thereof." It does not appear that he ever obtained possession of the premises, but only a judgment for their restitution.

III. The declaration alleges for one breach of the bond that Delashman did not "pay the rent due or to become due" the complainant. The rent by the act is to be paid "up to the time the complainant shall obtain possession" of the premises. This of course may be before or after the trial on the appeal and rendition of judgment of restitution, but the computation of the rent ceases at the time such possession is obtained, whether this be before or after the judgment. This contemplates and renders it a necessity that the breach should show how long the appellant continued in possession, and when the complainant obtained possession, as well as the amount of rent due. Nothing of this appears in the declaration; indeed it does not appear that any rent whatever was "due" or had "become due" the complainant. This is bad pleading, according to all rules. The declaration should show the extent of the breach: Lynch v. Murray, 21 How. Pr., 154; Juliand v. Burgott, 11 Johns. 6; Thomas v. Van Ness, 4 Wend. 549; People v. Russell, 4 Wend. 570; Nelson v. Bostwick, 5 Hill 37, 41; McDonald v. McArthur, 7 How. 745; Cooney v. Winants, 19 Wend. 504; 17 Johns. 439.

Ashley Pond, for defendant in error.

OPINION

Christiancy J.:

Plaintiff below (defendant in error) brought his action of debt in the circuit court for the county of Branch, against the plaintiffs in error, upon a bond given by them, June 23, 1866, in the penal sum of $ 800, on an appeal by Delashman from the judgment of a circuit court commissioner, giving restitution of certain premises and costs in a proceeding in the nature of forcible entry and detainer, in which plaintiff's testator was complainant.

The bond was in the usual form, conditioned that, if the said complainant "shall obtain restitution of the premises described in said complaint, upon such appeal, the said Delashman shall forthwith pay all the rent due, or to become due, to said complainant for said premises, up to the time said complainant shall obtain the possession, together with the costs of suit in prosecuting the said complaint and obtaining restitution."

The declaration set forth the bond, and, as required by the statute (Comp. L., § 4509), undertook to assign a breach of the condition. The only breach alleged however, is in these words: "Nevertheless, the said plaintiff in fact says that, after the making of the said writing obligatory, to wit: on the 4th day of April, 1868, such proceedings...