Gott v. Judge of the Superior Court of Detroit

• Court: Michigan Supreme Court
• Writing for the Court: GRAVES, J.
• Citation: Gott v. Judge of the Superior Court of Detroit, 42 Mich. 625, 4 N.W. 529 (Mich. 1880)
• Decision Date: 11 February 1880
• Parties: GOTT v. THE JUDGE OF THE SUPERIOR COURT OF DETROIT.

4 N.W. 529

42 Mich. 625

GOTT v. THE JUDGE OF THE SUPERIOR COURT OF DETROIT.

Supreme Court of Michigan

February 11, 1880

Plaintiff filed a declaration containing special count in assumpsit and also common and money counts, to which was annexed a copy of a promissory note. On the trial she was, against her protest, compelled to elect on which count she would proceed. She elected the special count, and judgment being rendered in her favor, it was on error reversed, and a new trial ordered on the ground of the insufficiency of the count; she afterwards discontinued the same. Held, that she was not thereby estopped from proceeding upon the common counts in the same action. It is essential to an equitable estoppel that the party sought to be estopped acted freely. A new trial is a rehearing before another jury, without prejudice to either party from the former trial. The ruling of the court on the first trial, as to proceeding in the course of the trial, would not be binding in a second trial.

Mandamus.

Beakes & Cutcheon, for relator.

Griffin & Dickinson, for respondent.

GRAVES J.

The present controversy is whether sufficient cause is shown against the relator's application for mandamus. A reference to the facts is necessary in order to understand the question.

September 1878, Sophronia Brigham commenced a suit by summons against the relator in the superior court, and in due time filed a declaration in the case, consisting of a special count in assumpsit, together with the common and money counts, and to the last was joined, according to the statute, and in the usual manner, a copy of a promissory note. The relator appeared and pleaded the general issue, with notice of set-off, and February 14, 1879, the issue came on to be tried in said court before the recorder, sitting as judge therein, and a jury.

After the testimony on both sides had been given, and before the case went to the jury, the relator's counsel moved the court that the plaintiff, Mrs. Brigham, be required to elect whether she would seek recovery on the first count or on the common counts, and supported the motion by argument, upon which her counsel objected to being required to make an election. The court, however, overruled the objection, and directed the plaintiff's counsel to decide whether he would claim under the special count or under the general counts. The plaintiff's counsel thereupon observed "We protest against the order of the court and except to the ruling, and without waiving our protest or exception, for the purpose of this trial, we elect to proceed upon the special count." The pleadings remained unaltered, and there was no other compliance with the order of the court than as here expressed. The case was submitted to the jury upon the special count alone, and they returned a verdict for Mrs. Brigham, and the court entered judgment accordingly.

The relator then brought up the case by writ of error, and finding that the special count on which the verdict had been given contained no cause of action, we reversed the judgment and awarded a new trial. 41 Mich. 227.

This...