Gilbert v. Kennedy

• Decision Date: 25 October 1870
• Court: Michigan Supreme Court
• Parties: Warren Gilbert v. Asa A. Kennedy

22 Mich. 5

Warren Gilbert v. Asa A. Kennedy

Supreme Court of Michigan

October 25, 1870

Heard October 18, 1870; October 19, 1870. [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Lenawee circuit.

This was an action of trespass quare clausum fregit brought by Asa A. Kennedy, before a justice of the peace in the county of Lenawee, against Warren Gilbert. The plaintiff declared in writing: "For that heretofore, to wit, on the twenty-fourth day of June, one thousand eight hundred and sixty-eight, at Rome, in said county of Lenawee, and on divers other days and times, between that day and the commencement of this suit, with force and arms, etc., broke and entered the close of the plaintiff, situate"--describing the place where the alleged trespass was committed, and setting forth specially the acts complained of.

The defendant pleaded the general issue, and gave notice of title in himself, whereupon, under the statute, the cause was certified to the circuit court for the county of Lenawee, where it was tried by a jury, who found a verdict for the plaintiff of one hundred dollars, upon which judgment was rendered and double costs taxed in favor of the plaintiff.

The questions for review in this court arise upon the admissibility of testimony and upon the taxation of costs. The questions which were objected to and allowed by the circuit judge, on which error is assigned, are stated in the opinion of the court.

After judgment the costs were taxed by the clerk upon notice at, for single costs $ 473.15, of which $ 390.66 were allowed for travel and attendance of witnesses; and under the statute (Comp. Laws, § 3736), which allows double costs to a plaintiff recovering a judgment in the circuit court in a case commenced before a justice of the peace and transferred to the circuit court upon the defendant's plea of title--the clerk taxed the amount to which the plaintiff was entitled at $ 960.30.

The affidavit of the plaintiff of his disbursements for witnesses states "that the following named persons attended court as witnesses," etc., and avers: "That deponent procured the attendance of all of them in good faith, believing that their testimony and the testimony of each of them would be material, to wit: 1. At the first session in March, one thousand eight hundred and seventy, commencing March fifteenth, and ending (by adjournment over one week) on March twenty-sixth. [Then follow the names of thirty-four witnesses, stating the number of the days of the attendance of each.] 2. At the session in the March term, one thousand eight hundred and seventy (after the adjournment), commencing April fifth. [Then follow the names, attendance and mileage of twenty-two witnesses.]

"And deponent further says, that said witnesses were all subpoenaed, or their attendance otherwise procured, for the first day of term, and were not discharged until the trial ended, which was Wednesday, the sixth day of April, and that the time as above stated is from the commencement of the term until the close of the second week (when the court adjourned over until the fifth day of April), during which adjournment they were allowed to go home, to return again on the said fifth day of April. Except this time they were under subpoena to attend all the time, with the exception of those of them who only attended at the second session as above mentioned.

"Deponent further says, however, that on the first day of the term there was an arrangement and understanding between the counsel and the court, that the case should not be tried before the fifth day of April, and, on this account, deponent told most of his witnesses at that time that they would not be wanted until the 5th of April, and thereupon most, or all of them, as deponent believes, went home, promising to be here on that day. That the time the said witnesses were in actual attendance at the court, exclusive of the time they were so allowed to be absent from the same, as aforesaid, appears in the subjoined table, together with the number of miles traveled by them, respectively, in coming from their residences at each time.

"And deponent further says, that a number of said persons were not called and sworn in the case, though they were subpoenaed, or their attendance procured, in good faith, in anticipation of a defense to be made by the defendant, in accordance with his notice under the plea of the general issue in said cause, but that, unexpectedly to deponent, the defendant did not call any witnesses on the defense, and for this reason it became unnecessary to call such witnesses on the part of deponent."

Upon a re-taxation of the costs before the circuit judge, he decided that plaintiff shall be allowed to tax for travel and one day's attendance on the first day of the March term, one thousand eight hundred and seventy (that being the term at which said cause was tried), and for a second travel and one day's attendance, commencing at noon on the fifth day of April, in said March term (that being the time to which said cause was postponed and at which said cause was tried), for five witnesses who were sworn and testified on behalf of the plaintiff, amounting at single costs to $ 18.77. And further, that the plaintiff should be allowed on such taxation for the travel and one day's attendance, on the said first day of said March term, and for a second travel and one day's attendance, commencing on said fifth day of April, in said March term, for twenty-nine persons, named as witnesses for said plaintiff in said cause, none of whom were ever called, sworn, offered or testified as witnesses on the trial of said cause, amounting at single costs to $ 73.13; which decisions of the circuit judge were excepted to by the defendant below, and on which error is assigned.

The circuit judge further decided that the double costs contemplated by the statute, consisted of twice the amount of single costs, and that the plaintiff should be allowed, for and as his double costs, twice the amount of his single costs, which decision was excepted to, and on which error is assigned.

Judgment reversed with costs, and a new trial granted.

C. A. Stacy and A. Howell, for plaintiff in error:

Both counts of plaintiff's declaration allege the commission of trespass by the defendant (Gilbert) upon the plaintiff's close, upon the 24th day of June, 1868, and on divers other days and times, between that day and the commencement of suit--August 4, 1868.

Under this declaration plaintiff was allowed to prove, after defendant's objection, the trespasses committed on April 28, 1868, and on the Monday following, May 4th; and was then allowed to prove, after objection, the commission of two trespasses within the time--June 24th to August 4th--alleged in the declaration.

Under such a declaration, where the trespasses are alleged to have been committed on divers days and times between a certain day and the commencement of suit, the plaintiff is at liberty to prove one, or any number of trespasses committed within the time named; or he may waive the right to prove any act within the days named in the declaration, and instead thereof, prove one distinct trespass committed before that space of time, and within the limits prescribed by the statute of limitations. But he cannot do both, he must waive one or the other. He is bound to make his election before he begins his evidence: 1 Chitty's Pl., *393-4; 2 Greenleaf's Ev., § 624 and n. 2; Pierce v. Pickens, 16 Mass. 470; 1 Phil. Ev., Cow., Hill and Ed. Notes, 856; Gould's Pleading, 106-107. And, therefore, when he proposed his questions, indicating proof of trespass prior to June 24th, defendant below interposed his objections, thereby, so far as he could, putting plaintiff to his election. Plaintiff proceeded, however, by the answers to these questions, to introduce proofs of trespasses committed April 28th and May 4th, thereby electing to proceed upon these trespasses, and from that moment those trespasses of April and May became the trespasses alleged in the declaration. Plaintiff made them so by his election, he could not elect again, nor prove any trespass on the 24th of June, or subsequent thereto. See People v. Jenness, 5 Mich., p. 327.

The testimony shows that plaintiff's possession and interest in the farm was that of a lessee merely. The question, "What was the damage to the farm, and to you as the possessor, done by those cattle of Gilbert's from the 24th of June to August 4th, by reason of feeding off and trampling down the pasture and thus destroying the feed?" And the answer, "At least $ 100," includes two elements or classes of damage. 1st. The damage to the plaintiff as possessor--lessee; this includes every kind and all damage injurious to plaintiff, and for which he had any right to recover. 2d. The damage to the farm, that is to the reversion or inheritance; this damage was injurious only to the owner of the fee, and he alone had the right to recover for it: Gourdier v. Cormack, 2 E. D. Smith, 200; Sedgwick on Dam. (134), note.

A landlord may have an action for the injury to the inheritance, and a tenant for the injury to his possession: Stark v. Jackson, 11 Mass. 519; 2 Comp. Laws, § 2810.

The trespasses complained of were continuous, extending down to October 12, 1868. When, for a continuous wrong, successive actions may be brought for the continuance, plaintiff is limited in his right of recovery to damage sustained at the commencement of the suit. Hence proof, and the instruction directing the assessment of damages, for time after August 4th, was erroneous: Caldwell v. Murphy, 1 Duer 233; Bathishill v. Reed, 37 Eng. L. and Eq., 317; Smith v. Peet, 9 Exch. 161;...