Jenkins v. Stewart

• Decision Date: 17 May 1935
• Docket Number: Motion No. 325.
• Citation: 271 Mich. 522,261 N.W. 80
• Parties: JENKINS et al. v. STEWART et al.
• Court: Michigan Supreme Court

271 Mich. 522

261 N.W. 80

JENKINS et al.

v.STEWART et al.

Motion No. 325.

Supreme Court of Michigan.

May 17, 1935.

Action by William F. Jenkins and another against E. V. Stewart and another.Motions by defendants to dismiss the cause of action and cancel their bond given on arrest on writ of capias were denied, and defendants appeal.

Reversed.

Appeal from Circuit Court, Mecosta County; Earl C. Pugsley, judge.

Argued before the Entire Bench.

John N. Anhut, of Detroit (Albert W. Haines, of Detroit, of counsel), for appellants.

Worcester & Worcester, of Big Rapids, for appellees.

EDWARD M. SHARPE, Justice.

The plaintiffs are the owners of a hotel in Big Rapids and on June 2, 1930, leased the same to defendants, who paid their monthly rent for the same until on or about April 1, 1934.Because of the failure of defendants to continue paying rent, the plaintiffs on April 11, 1934, served a sevenday notice to quit and vacate said premises for nonpayment of rent.Suit was later commenced before a circuit court commissioner, and on April 25, 1934, a judgment for restitution was entered for the premises.

April 30, 1934, plaintiffs began the present cause of action pursuant to 3 comp.Laws 1929, § 14986, for double damages, and at the time of the service of the writ of summons the defendantE. V. Stewart was placed under arrest on a writ of capias with bail endorsed on said writ in the amount of $2,000.

May 10, 1934, the defendants entered a special appearance in the cause and filed a motion to dismiss the cause of action and cancel the bond on the ground that the suit was prematurely brought.Later a supplemental motion was filed to quash the writ of capias.Both motions were denied, and from which order defendants appeal.

This action is brought under 3 Comp. Laws 1929, § 14986, which reads as follows: ‘The plaintiff obtaining restitution of any premises under the provisions of this chapter, shall be entitled to an action of trespass on the case against the defendant, and may recover double damages from the time of the forcible entry, or forcible detainer, or of the notice to quit, or demand of possession, as the case may be.'

In construing this statutewe must have in mind that 1 Comp. Laws 1929, § 76, provides:

‘In the construction of the statutes of this state, the following rules shall be observed, unless such construction would be inconsistent with the manifest intent of the legislature, that is to say:

‘1.All words and phrases shall be construed and understood according to the common and approved usage of the language; but technical words and phrases, and such as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning. * * *'

Also that 3 Comp. Laws 1929, § 14987, provides: ‘Either party conceiving himself aggrieved by the determination or judgment of the commissioner, or other officer, made or rendered under the provisions of this chapter, may appeal therefrom to the circuit court for the same county, within the same time, in the same manner, and return may be compelled, and the same proceedings shall be thereon had, as near as may be, and with the like effect, as in cases...