Hodges v. Bagg

• Decision Date: 06 June 1890
• Citation: 81 Mich. 243,45 N.W. 841
• Court: Michigan Supreme Court
• Parties: HODGES et al. v. BAGG.

45 N.W. 841

81 Mich. 243

HODGES et al. v. BAGG.

Supreme Court of Michigan

June 6, 1890

Appeal from circuit court, Wayne county; CORNELIUS J. REILLY, Judge.

O. M. Leonard, (J. G Dickenson, of counsel,) for appellant.

A P. Hodges, (Mechem & Beaumont, of counsel,) for appellees.

CAHILL J.

Plaintiffs sued defendant in an action of assumpsit before OVERTON L. KINNEY, one of the justices of the peace in and for the city of Detroit, by summons returnable August 16 1889. On the return-day the justice rendered a judgment in favor of the plaintiffs for $85.20 damages; or $1.50 costs. The defendant took a special appeal to the circuit court alleging the following errors in the judgment of the justice First, that the justice, upon a failure of the plaintiffs to appear when said case was called, rendered a judgment of nonsuit against the plaintiffs; second, that the said justice erred in reinstating said cause, and rendering judgment therein, after having called said cause, and dismissed the same; third, that the said justice, having dismissed said cause, had no jurisdiction to try the same and render said judgment. To this appeal the justice made the following return: "In justice court. Henry C. Hodges and Charles C. Hodges, copartners as Hodges Bros., v. Albert W. Bagg. Before Overton L. Kinney, one of the justices of the peace for the city of Detroit and county of Wayne. An appeal having been made by defendant in the above cause, I, Overton L. Kinney, the justice of the peace before whom the cause was tried, do hereby return to the circuit court for the said county of Wayne the proceedings had before me, as follows: The parties prosecuted and defended by their respective attorneys. The cause was commenced by summons issued August 6, 1889, returnable at my office in the city of Detroit, in said county, on August 16, 1889, at 9 o'clock in the forenoon of that day. Plaintiffs appeared by their attorney, Alexander P. Hodges, within one hour after the time designated for the return of the summons. Plaintiffs pleaded verbally, and declared in an action of assumpsit on all the common counts, and especially on a promissory note past due, and demanded a judgment for $300 damages or under, and costs. The defendant making no defense to the merits, and on the said 16th day of August, 1889, I rendered judgment for plaintiffs against defendant for eighty-five and 20-100 dollars damages, and $1.50, costs of suit. And as to the matters and alleged errors stated and set forth in the affidavit for the appeal in this cause, hereunto annexed, I do further return that, owing to the urgency of certain private business of my own which I supposed would prevent my holding court that day, I notified the clerk of the justice's court for Detroit, Mr. Baker, whose office is across the hall from my office, that I would not hold court that day; meaning the return-day of the summons in this cause. That I was able and did go to my office four or five minutes before the hour for the appearance of the parties had expired, and unlocked my office door, and proceeded with business. I had noticed Mr. Hodges near the door of the clerk's office when I entered my office, but I did not know him. I thereupon found the facts to be that plaintiff's attorney had appeared at my office thirty minutes or more before the hour had expired for the appearance of the parties, but, finding the door locked, he went into the clerk's office, and was told I would not hold court that day. He was still waiting to ascertain what justice would try the case in my absence, (the clerk being busy,) when I entered my office, and I saw him near the door when I entered. Learning I had entered my office, he came in, perhaps two minutes after I announced the dismissal of the case; the defendant's attorney having that moment left. No docket entry of dismissal was made; neither attorney being present at the moment of said announcement. Finding the facts to be as above stated, as to the appearance of plaintiff's attorney, I sent word to defendant's attorney to appear at two o'clock that day, and, both attorneys appearing, I notified them that I would go on with the case. Defendant's attorney thereupon...