Greeley v. Stilson
Decision Date | 22 April 1873 |
Citation | 27 Mich. 153 |
Court | Michigan Supreme Court |
Parties | Charles Greeley and others v. John Stilson and another |
Heard April 16, 1873; April 17, 1873.
Error to St. Clair Circuit.
Judgment reversed, with costs, and a new trial granted.
A. E Chadwick, for plaintiffs in error.
O'Brien J. Atkinson and Trowbridge & Atkinson, for defendants in error.
Plaintiffs in error were defendants below, and were sued in trover for the conversion of certain logs claimed to have been cut from lands of Stilson & Stevens, in Alpena county. Judgment was recovered against them in the circuit court for St. Clair county.
A motion for change of venue was made in the court below, based upon the ground that all the transactions took place in Alpena county, and on the further ground that defendants had been fraudulently subpoenaed into St. Clair county, and then served with process in this suit. The case had been tried before, but no verdict had been found.
A motion for change of venue is, unless where otherwise provided by law, a matter which rests in discretion, and is not subject to review. A fraudulent use of process may be punished, and relief may be granted, where it is brought in proper time to the notice of the court. But after plea and trial any legal claim to rely upon the misconduct in the service was no longer beyond the ordinary discretion of the court.
But the question was further raised on the trial whether an action of trover for logs cut and carried away from land in Alpena county and sold in that county can be lawfully brought in St. Clair county.
The statute makes actions for trespass on lands, and for injuries to lands, local. Both trespass and waste would come under such a restriction, and there is much force in the claim that the testimony which would be given in those actions would be the same as that in trover for the conversion of the same property, in the most important respects.
A difference has been recognized, however, arising out of the fact that until the timber has become personalty, by being severed from the soil, it is not subject to conversion, and that wherever it may be moved in an unmanufactured form whether in the same or in another county, a conversion may be charged as taking place where it is sold, or otherwise disposed of or appropriated, as well as on the first removal. Treating it as no longer freehold when it has become personalty, the law distinguishes actions for its conversion, from those for the act whereby it became changed from realty, and puts all suits for the wrongful conversion of chattels on a similar footing, and makes them transitory. The distinction is technical, but it seems to be well established. The action, therefore was legally brought in St. Clair county.
To prove the value of the logs, one of the plaintiffs, John Stilson, was asked what it would be, without having been previously examined as to his means of knowledge. This was objected to, and being admitted, defendants excepted. On cross-examination he said he did not know of any logs being sold for the price mentioned; that he was not delivering any logs that year, and did not know the market price of logs at Alpena that year. He was then allowed, under objection and exception, to state on re-examination that he got at the value from the quality of the timber and the market value of timber at Alpena. Being further asked, under similar objection, what were his means of knowing the value of lumber at Port Huron, Alpena, Saginaw and other places, he answered, by inquiring that year; that his business was getting out saw-logs, and had been for fifteen years, at Port Huron and Saginaw. His means of getting at the value of logs were, that he inquired the price of lumber at Alpena, and he stated he did not know how far Alpena was from Saginaw or Port Huron.
As the defendants sold the logs, they were chargeable for their value at the time and place of sale, but no later; and this value, therefore, was necessary to be shown. When the witness was first sworn he had shown no knowledge of any kind. On his cross-examination he stated explicitly that he did not know the market value of logs at Alpena, and where the conversion relied on is a sale, the value is the only admissible test. The price obtained by the defendants would be admissible against them, though not binding in their favor. H...
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