Goebel Brewing Co. v. Medbury

• Decision Date: 26 May 1908
• Parties: GOEBEL BREWING CO. v. MEDBURY et al.
• Court: Michigan Supreme Court

153 Mich. 49
116 N.W. 543

GOEBEL BREWING CO.
v.
MEDBURY et al.

Supreme Court of Michigan.

May 26, 1908.

Error to Circuit Court, Wayne County; Joseph W. Donovan, Judge.

Action by the Goebel Brewing Company against Samuel Medbury, impleaded, etc. From a judgment for plaintiff, defendant Medbury appeals. Affirmed.

Argued before BLAIR, MONTGOMERY, OSTRANDER, HOOKER, and CARPENTER, JJ.

[116 N.W. 543]

Jonathan Palmer, Jr. (Elbridge F. Bacon, of counsel), for appellant.

Lewis A. Stoneman, for appellee.

BLAIR, J.

On July 10, 1896, the plaintiff obtained a judgment against the defendant Medbury and others after personal service of summons upon him, plea of the general

[116 N.W. 544]

issue, and participation in the trial. No appeal was taken from this judgment, and its validity is not questioned. Afterwards a transcript of the judgment was filed in the circuit court. On the 9th day of July, 1906, suit was commenced in the Wayne circuit court by summons, which was later personally served upon defendant Medbury, as appears by the return of the officer, and proof of service filed February 28, 1907, as well as by his affidavit filed in answer to an affidavit by Medbury denying such service. On the 1st day of March, 1907, plaintiff filed its declaration, in substance as follows: ‘For that, whereas, the said plaintiff heretofore, to wit, on July 10, 1896, before John McKinlay, Esq., a justice of the peace in and for the city of Detroit, said county and state (Simpson Docket No. 1,359), recovered a judgment against the said defendants for the sum of $371.29, which judgment was afterwards, to wit, on September 11, 1896, removed from said justice's court of the city of Detroit to the circuit court for Wayne county, Michigan, by transcript, which transcript appears as transcript No. 2,811 in the files and records of said circuit court for Wayne county, Michigan, and thereupon, to wit, on September 11, 1896, by the consideration and judgment of said circuit court for Wayne county, Michigan, the said plaintiff recovered against the said defendants the sum of money above demanded, being the sum of $373.29 for damages and costs of said transcript, which sum of money in and by the said circuit court was then and there adjudged to the said plaintiff for its damages which it had sustained, as well as by reason of the nonperformance by said defendants of certain promises and undertakings then lately made by the said defendants to said plaintiff as for its costs and charges by it about its...