Dunn v. Gilman

• Decision Date: 13 June 1876
• Court: Michigan Supreme Court
• Parties: Michael Dunn v. Francis Gilman, Jr

34 Mich. 256

Michael Dunn v. Francis Gilman, Jr

Supreme Court of Michigan

June 13, 1876

Submitted on Briefs April 20, 1876

Error to Wayne Circuit.

Judgment reversed, with costs, and a new trial granted.

Prentiss & Fox, for plaintiff in error, as to the protection afforded the officer by a writ fair on its face, cited: C. L 1871, §§ 7680, 8000, 8003; Dwinnels v Boynton, 3 Allen 310; Savacool v. Boughton, 5 Wend. 171; Beatty v. Perkins, 6 Ib. 385; Ortman v. Greenman, 4 Mich. 293; People v. Rix, 6 Ib 144; Shipman v. Clark, 4 Denio 446; Hallet v. Byrt Carthews, 380; Foster v. Pettibone, 20 Barb. 350; Cook v. Hopper, 23 Mich. 511.

Henry M. Cheever, for defendant in error.

OPINION

Marston, J

Gilman brought an action of trespass on the case against Dunn for taking and converting a certain bay mare. Defendant pleaded the general issue, with a notice of justification.

Upon the trial it appeared that Gilman claimed title to the property through one Jacobs. Jacobs admitted having made some sort of a conditional agreement to sell to Gilman's vendor, but that the agreement had not been consummated. It also appeared that afterwards, and on the 18th of January, 1875, Jacobs appeared before a justice of the peace and made complaint that the property in question had been stolen fro him, and that he had reason to believe it was then concealed about the premises of one Bondie and Gilman, and he prayed that a search warrant might issue. A search warrant was issued by the justice and delivered to Dunn, who was then a constable. On the same day he made return thereon that he had searched and found the property upon the premises as described in the writ, and had the same then before the court as he was therein commanded. It also appeared that the justice thereupon proceeded to examine witnesses, and as appeared from the entry in his docket, he was of opinion from the evidence in the case that the property belonged to Jacobs; that it had been stolen by some person unknown, and concealed upon the premises described in the warrant; and he thereupon ordered and directed the officer to restore the property to the complainant Jacobs. Gilman was present during the proceedings before the justice upon the return being made, but took no part therein. These facts appearing upon the trial, and not being disputed, as to the judicial proceedings, Dunn claimed that he was not liable.

It is not necessary to set forth the complaint and warrant, as no question was made as to their sufficiency, either in form or substance, nor was the regularity or validity of the proceedings thereunder before the justice questioned, so that we have no occasion to consider...