Final v. Backus

• Decision Date: 20 April 1869
• Citation: 18 Mich. 218
• Court: Michigan Supreme Court
• Parties: William Final v. Absalom Backus

18 Mich. 218

William Final v. Absalom Backus

Supreme Court of Michigan

April 20, 1869

Heard April 16, 1869 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Saginaw circuit.

This was an action of trover to recover the value of certain logs.

The summons erroneously described the plaintiff as Absolem Baxter.

In the declaration the true name was given, to wit, Absalom Backus.

The default of plaintiff was duly entered by defendant and made absolute, on the ground that no declaration had been filed corresponding with the title of the plaintiff as described in the summons.

Subsequently, the court granted the defendant leave to amend the writ by inserting the true name of plaintiff.

The default of plaintiff was thereupon set aside.

The cause proceeded to trial, and the jury rendered a verdict for plaintiff.

The defendant moved for a new trial for the reasons:

First. That the court admitted irrelevant and incompetent testimony.

Second. That the verdict of the jury was against the weight of testimony.

Third. That the verdict was excessive.

The motion was overruled and judgment was entered for plaintiff.

Upon the trial the plaintiff offered in evidence a copy of a certain deed of conveyance. The defendant objected because there was no subscribing witness, and because there was no proof of the execution of the deed, or otherwise, to entitle it to be received in evidence. The certificate of the proper officer was attached thereto, and complied with the provisions of the statutes of Michigan regarding such conveyances.

The court overruled the objection, and the defendant excepted.

The plaintiff, further to maintain and prove the said issue, offered in evidence a copy of a certain other deed.

The plaintiff then offered a certain other deed in evidence.

The defendant objected, because there was no subscribing witness and no proof of its execution, and because its execution did not appear to have been acknowledged before any officer authorized by law to take the same; the initials "J. P." being attached to his name.

The certificate of the proper officer was attached to the deed and complied with the provisions of the laws of Michigan. It also described the officer who acknowledged the deed as being a justice of the peace.

The plaintiff, further to prove the issue on his part, called Wm. Pinkerton, who, being sworn, testified: that he cut pine logs for the defendant under a written contract, upon certain lands of the defendant in the county of Sanilac, adjoining the land described in the deed introduced in evidence from Stebbins and wife to the plaintiff, and also gave evidence tending to prove that he and his men cut a number of pine trees on the northwest quarter of the southwest quarter of section eight, township thirteen north, range twelve east, and that he put the defendant's mark upon the logs cut from the said land, and banked them on the Cass river, in said Sanilac county, for defendant, and after that, run them, with the logs he cut from defendant's land for defendant, to the jam one-half mile above plank road bridge, at Cook's, above Bridgeport, and about ninety miles from where they were cut; that he began cutting on the 13th of November, 1866, and finished on the 5th or 6th of April following, and quit drawing logs then; that when put in the river some of the logs were worth $ 10 per thousand, and the balance $ 7 per thousand feet, and that he thought the trees were cut on plaintiff's land in January, 1867.

The plaintiff then called James A. Walker, who, being sworn, gave evidence tending to prove that he was one of the firm of Dolsen & Walker, and sawed between six and seven hundred thousand feet of logs for defendant, marked with his mark, at their mill on the Saginaw river, in Saginaw county, in the year 1867.

The counsel for the said plaintiff then put the following question to said witness: "What was the value of the logs you sawed that year for the defendant?" but the counsel for the defendant objected to said question and the evidence thereby sought to be given, because it was irrelevant, incompetent, not pertinent to the issue; and because it would not prove the value of the specific property claimed in this suit, and because it would be proving the value of the logs in the county of Saginaw, while the conversion was alleged to have been in the county of Sanilac. The court overruled the objection, and defendant excepted.

The said witness, answering said question, testified that the logs were worth ten dollars a thousand feet, at their boom in the Saginaw river.

The counsel for the plaintiff then offered the plaintiff, Absalom Backus, jr., as a witness, who testified "that in the summer of the year 1867, he called on the defendant to try to induce him to settle for the timber cut on his land; he said that he had none of his timber."

The counsel for the plaintiff then asked him "when did you purchase that land?"

The defendant objected. The court admitted it, and defendant excepted.

Plaintiff replied "that he made purchase of the land on the 24th or 25th of March, 1867; that he and Stebbins talked about any trespass having been committed on the land, and that his was to be the right to prosecute for any such trespass, for his own benefit; that he asked Stebbins if he, plaintiff, should go on the land and find timber had been cut, what should he do, and that Mr. Stebbins replied: If there has, you are authorized to prosecute and collect pay for the timber that has been cut off."

Plaintiff then introduced a letter from Stebbins, inclosing a written authority from him to the plaintiff to prosecute for any trespass committed upon the land.

Defendant objected to its introduction, as being irrelevant, and not stamped pursuant to law.

The plaintiff then offered to put a five-cent United States internal revenue stamp on said letter. The defendant's counsel objected, that said stamp was insufficient, and not of the amount required by law.

The court overruled the objections, and defendant excepted.

The defendant, William Final, testified that good common logs were worth on the bank about $ 6 per thousand feet, and ones and twos were worth from $ 10 to $ 12 per thousand feet. And, on cross-examination by counsel for plaintiff, said Final testified as follows: "My logs netted about $ 11 per thousand feet altogether."

The following are the assignments of error:

First. The circuit court erred in entertaining the motion of the plaintiff, Absolem Baxter, to amend by inserting the name "Backus, jr.," in place of the name "Baxter."

Second. The court erred in granting the said motion to amend the name of the plaintiff, and erred in ordering the summons and all subsequent proceedings amended, by striking out the word "Baxter" and inserting "Backus, jr.," in lieu thereof.

Third. The court erred in setting aside the default of the plaintiff, Absolem Baxter, and the order making said default absolute and interlocutory judgment, without any motion having been made therefor, or entered in the special motion book, pursuant to the rules of said court.

Fourth. The court erred in allowing the plaintiff, Absolem Baxter, to move to amend the plaintiff's name as aforesaid, and in entertaining said motion while said plaintiff was in default, and before said default and the order making the same absolute, and rendering interlocutory judgment thereon, had been set aside and vacated.

Fifth. The court erred in receiving the affidavit of I. M. Smith, as the basis of the aforesaid motion to amend, and in granting said motion for matters appearing in said affidavit.

Sixth. The court erred in overruling the motion for a new trial, and in rendering judgment against the defendant, William Final.

Seventh. The court erred in allowing the plaintiff, Absalom Backus, jr., to read in evidence the deed of conveyance, a copy of which is annexed to the bill of exceptions, marked exhibit "A."

Eighth. That the verdict of the jury was erroneous, and manifestly against the evidence in the case, and because the evidence in the case did not sustain and authorize said verdict.

Ninth. The court erred in allowing the plaintiff, Absalom Backus, jr., to read in evidence on the trial of said cause, the deed of conveyance, a copy of which is annexed to the bill of exceptions, and marked exhibit "B."

Tenth. The court erred in deciding the following question: "What was the value of the logs you sawed that year for the defendant?" might be put to the witness James A. Walker, and in receiving the answer thereto in evidence.

Eleventh. The court erred in deciding that this question "When did you purchase that land?" might be put to the witness Absalom Backus, jr., and his answer thereto received in evidence.

Twelfth. The court erred in admitting and allowing to be read in evidence the letter from T. P. Stebbins to Absalom Backus, jr., dated August 1, 1867, set forth in the bill of exceptions.

Judgment affirmed, with costs.

Peck & Clark, for plaintiff in error:

The plaintiff below, being in default, could only move to set the default aside, and the circuit court therefore erroneously entertained plaintiff's motion to amend, he being out of court, until the judgment of nol. pros. was vacated: Green's Pr., 299; Cook v. Allen, 3 Tyrw. 378; 5 Taunt. 649; Sparrow v. Naylor, 2 Bl. 876, 759; 1 Tidd's Pr., 421, 2, 58 and 60; 3 Barn. and Ald., 272; 3 Dowl. 404; 1 Hodge 75.

Courts will not allow amendments which change the parties to the action, unless there is something in the record to authorize the amendment. More especially is this the rule in relation to amendments that change the plaintiff: ...