Hanaw v. Bailey

• Decision Date: 31 October 1890
• Citation: 83 Mich. 24,46 N.W. 1039
• Court: Michigan Supreme Court
• Parties: HANAW v. BAILEY.

46 N.W. 1039

83 Mich. 24

HANAW v. BAILEY.

Supreme Court of Michigan

October 31, 1890

Appeal from circuit court, Jackson county: ERASTUS PECK, Judge.

A. E Hewitt, (Austin Blair, of counsel,) for appellant.

Dwight D. Root, for appellee.

MORSE J.

This is a summary proceeding instituted before a circuit court commissioner of Jackson county to recover possession of lands held by defendant under a contract for working the same. The commissioner after trial of the issue before him gave judgment of restitution in favor of the plaintiff, and for costs amounting to $34.10. This judgment was rendered March 26, 1889. On the 29th of same month, defendant presented affidavit and bond for appeal, and paid the costs and entry and return fee required on such appeal. In the circuit court plaintiff made a motion to dismiss appeal, which was denied. Afterwards, when the cause came on to be tried, and after a jury was impaneled and sworn, but before proceeding to trial, the plaintiff objected to the appellant's proceeding with the trial, on the ground that the appeal was not legally taken, and the court therefore had acquired no jurisdiction to try the case, assigning the same reasons as in his motion to dismiss. The objection was overruled. Thereupon, for the purpose of saving time on the trial, and the examination of a large number of witnesses, at the suggestion of plaintiff's attorneys, it was consented by the attorneys for the respective parties that the plaintiff might offer in evidence the lease or agreement of the parties under which the defendant had possession of the premises in controversy and for violation of which the complaint was made, and the defendant might thereupon at once raise the question whether under this lease, the plaintiff could recover possession of the farm under the statute, the re-entry clause having been struck out by the parties, and the term not having expired. The plaintiff's attorneys thereupon stated that they desired and offered to put in testimony tending to show that the defendant had violated the agreements contained in the lease in all material particulars. He had not carried on the farm in a husband-like manner, and had produced substantially no crops, and did not take care of the stock as he had agreed to do. It was admitted that these proceedings were commenced a few days before the expiration of the first year, the term being two years. After hearing arguments of counsel for the respective parties upon this question, the circuit judge did then and there state and deliver his opinion that the plaintiff could not recover in this action by showing that the defendant failed to work the farm in a good and husband-like manner, and so failed to produce crops that the farm ought to have produced, because the contract does not provide for a forfeiture of the tenancy for that reason, and does not provide for a re-entry on the premises in case that should occur. The motion to dismiss the appeal was grounded upon two reasons: First, that the defendant had surrendered the land to the plaintiff; second, because the affidavit and bond for the appeal of said cause were not sufficient to confer jurisdiction on the court.

The first reason was not a good one. It appears that, after the appeal had been taken, or attempted to be taken, and on the 30th day of March, 1889, the defendant served a notice upon the plaintiff, to the effect that he should quit the place on the 1st or 2d of April, 1889, and asking him to come and divide the property on the farm, and subsequently left the land. This did not affect the appeal. The question to be determined by the appeal related to the forfeiture of defendant's contract, and his right to possession at the time the suit was commenced, and not afterwards. It is contended by plaintiff's counsel that this giving up of possession was a satisfaction of the judgment of restitution, and there was then nothing left to appeal from. This contention will not hold in such a case as this. The abandonment of the farm by the defendant cannot be considered as an act in satisfaction of the judgment, or an admission that he was at the commencement of suit holding possession of the land unlawfully. It was a transaction entirely independent of the judgment and prior proceedings in this case.

It is claimed under the second objection to the appeal that the affidavit was defective in not stating the nature of the action, nor when it arose, nor when it was tried. The affidavit for appeal was in the common form of affidavits on appeal from justice courts, and was sufficient. How. St. � 8307. It will be found in the margin of this opinion. ^[1]

The bond is also said to be defective because it does not appear therein that the penalty was fixed by the commissioner in double the amount of the annual rent of the premises, or that it was approved by the commissioner. The bond is in a penalty of $600, and is in proper form. A certificate is attached by the commissioner that the sureties justified their...