Elliott v. Whitmore

• Decision Date: 23 October 1858
• Citation: 5 Mich. 532
• Court: Michigan Supreme Court
• Parties: Edward Elliott v. William Whitmore

5 Mich. 532

Edward Elliott v. William Whitmore

Supreme Court of Michigan

October 23, 1858

Heard July 14, 1858 [Syllabus Material]

Error to Ingham Circuit.

The action was replevin, originally brought by Whitmore against Elliott, before a justice of the peace, for a quantity of household furniture and clothing. The declaration was in the usual form for the unlawful detention of the property. The defense was that the property was taken under execution on a judgment in favor of Elliott against Whitmore.

On the trial before the justice, defendant in error having proved the property to be his, and that it was taken by direction of plaintiff in error, offered further to show that the goods were household furniture, and the clothing the wearing apparel of his family. This was objected to, on the ground that, no particular character of the goods replevied being set up or claimed in the writ or declaration, or put in issue, no particular character could be proved. The justice overruled the objection, and the evidence was given on the subject. But the evidence did not distinctly show the clothing to have been in use in plaintiff's family. On the part of the defense, the judgment and execution were given in evidence, and it was proved that the goods were levied upon by virtue of the execution, while stored away in a barn; that Whitmore had, previous to that time, broken up housekeeping, and had an auction sale of household goods; but whether at that sale the property in controversy, or any portion of it, was put up for sale, does not from the record distinctly appear.

Judgment was rendered for Whitmore in the justice's court, which was removed to the Circuit Court by certiorari, and there affirmed. Elliott brought error to this court, and assigned for error the admission of evidence to show the particular character of the goods, the permitting the plaintiff below to go into the question of exemption, and that the judgment was contrary to law and the evidence.

Judgment affirmed.

J. W & E. Longyear, for plaintiff in error:

Property is not necessarily exempt because it consists of bedding, stoves, clothing, etc., but because of its particular character, as that it is the household goods of the party claiming, not exceeding in value $ 250, or that it consists of stoves put up and kept for use in any dwelling-house, or, if clothing, that it is the wearing apparel of the person claiming, or his family, etc.; and, in some instances, because of the particular relations to society sustained by the party claiming, as that he is a householder. And such particular character of the property replevied being of the very essence of the action in such cases, and the plaintiff having replevied without attaching that character to the property, he must be held to have replevied it in its general character, and it was error for the justice to permit the plaintiff to give evidence of any other character.

Besides, the exemption is an exception to a general rule; and in order to avail himself of the benefits of such exception, the party must bring himself within it by his pleadings: Reynolds v. Sallee, 2 B. Monr., 18; Saffell v. Wash, 4 I bid., 92.

While pleadings in justices' courts, in matters of form, are to be viewed with liberality, they must be sufficient in matters of substance, and apprise the opposite party of the real grounds of the action or defense: Hurtford v. Holmes, 3 Mich. 460; Barber v. Taylor, 1 Mich. 352; Ross v. Hamilton, 3 Barb. 609.

Defendant was estopped from insisting upon a claim of exemption, because such claim is founded upon the fact that the property replevied has been taken in execution, on attachment, which defendant positively denies in his affidavit for the writ. And also because he has omitted in his process and declaration to attach that character to the property, and declares in the detinet, which is only proper where the original taking was lawful. And it is submitted that under the justices' act of 1855 (Comp. L., §§ 3695 to 3699) the legislature intended to deprive the defendant in an execution or attachment of the right to replevy goods seized by virtue thereof, because it makes the jurisdiction of the justice depend upon the statement on oath that the property has not been seized under execution or attachment.

The judgment is against evidence, inasmuch as, instead of affirmative showing by plaintiff in error that he was a householder, the contrary appeared; and there was no evidence whatever that the clothing was the wearing apparel of himself or family.

W. H. Chapman, for defendant in error:

The forms for proceedings in replevin being prescribed by statute, it is necessary to conform to them: Phenix v. Clark, 2 Mich. 327; Calvin v. La Farge, 6 Wend. 505. This was done in the case at bar; and under these forms the statute allows the question of exemption to be tested.

The propriety of the judgment upon the weight of evidence can not be reviewed here: Jarvis v. Hatheway, 3 Johns. 180; Feeter v. Whipple, 8 Ibid. 369; Douglass v. Tousey, 2 Wend. 352; Smith v. Hicks, 5 Ibid. 48; Astor v. Insurance Co., 7 Cow. 202; Keeler v. Insurance Co., 3 Hill 250. When no errors in law appear, this court will not review the case upon the merits: Hurtford v. Holmes, 3 Mich. 460.

OPINION

Martin Ch. J.:

The objections of the plaintiff in error to the questions put to the witness Buck, were properly overruled by the justice. The object of the inquiries was to show that the property in question was exempt by law from seizure and sale upon execution, and the objections were not to the form, but to the purport of the questions. Under the pleadings in this case we think this inquiry might be properly gone into. It is not necessary in the declaration in replevin to describe specifically the character of the property, as that is exempt from sale upon execution, any more than it is...