Jennison v. Haire

• Decision Date: 21 April 1874
• Court: Michigan Supreme Court
• Parties: Hiram Jennison and others v. John Haire and another

29 Mich. 207

Hiram Jennison and others v. John Haire and another

Supreme Court of Michigan

April 21, 1874

Heard January 28, 1874

Error to Ottawa Circuit.

Assumpsit. Defendants bring error. Reversed.

Judgment affirmed, with costs.

Afterwards, on May 6, 1874, the plaintiffs in error moved in this case and the case next following it, for a stay of proceedings, upon a showing which is sufficiently set forth in the following opinion.

Motion for a stay of proceedings denied, with costs.

Champlin Butterfield & Fitzgerald, for the motion.

James A. Rogers and Eggleston & Kleinhans, contra.

Hughes O'Brien & Smiley, and Champlin, Butterfield & Fitzgerald, for plaintiff in error.

James A. Rogers and Eggleston & Kleinhans, for defendants in error.

Cooley, J. Graves, Ch. J., and Campbell, J., concurred. Christiancy, J., did not sit in this case.

OPINION

Graves, Ch. J.

Before taking up the points agitated in this case it will be best, perhaps, to bring forward the main events connected with the litigation.

The defendants in error prosecuted one Edwin Cole by attachment, and the sheriff, Clark C. Bailey, seized under the writ of attachment, as the property of Cole, a very large and valuable amount of lumber, timber, teams, vehicles, tools and other chattels.

While the sheriff was in possession under the writ of attachment, and before the trial, two of the plaintiffs in error, namely, Hiram and Luman Jennison, sued out of the circuit court for the county of Ottawa their writ of replevin against the sheriff to obtain possession of the same property. This writ was directed to the coroner (Curtis Gray), and was made returnable on the 16th of July, 1867. On giving the writ to the coroner for service, he was furnished with what purported to be the usual replevin bond, executed by the plaintiffs in error. The property taken by the sheriff, and held by him as before stated under the attachment, was by the coroner taken out of his hands on the writ of replevin, and delivered over to the plaintiffs in replevin, in June, 1867.

On the 26th of February, 1868, the plaintiffs in replevin made default, and the court awarded judgment for a return of the property, and for costs, and on the 28th of the same month, being two days later, the defendants in error recovered judgment in the attachment suit against Cole, for damages, eight thousand two hundred and ninety-nine dollars and eighty-eight cents, and costs, forty-nine dollars and thirty-five cents.

On the 4th of February, 1869, an execution was issued on the judgment in replevin, to which the then sheriff (Mr. Weatherwax) made return on the 20th of April, 1869, that he had demanded the goods and chattels of the plaintiffs in replevin, and that they refused to deliver the same or any part thereof. He also returned that he demanded the costs ordered to be collected, and that payment thereof was refused; and further that he levied on goods and chattels, in order to collect such costs, when, on being notified that a writ of error had been taken out and a bond in error given, and that his execution was superseded, he relinquished the levy.

The bond in replevin given to the coroner was thereupon assigned to the defendants in error, the plaintiffs in the attachment suit, and they brought an action upon it in their own names, and obtained judgment on the 8th of July, 1873, for eleven thousand five hundred and thirty-seven dollars and eighty-six cents, and the plaintiffs here (who were the defendants in that suit) then brought error.

In proceeding to review the case we are necessarily confined to the assignments of error, and we cannot follow the ingenious arguments for the plaintiffs any further than a fair construction of the record will warrant. We can intend nothing against the judgment of the court below, neither can we eke out any suggested ground of error where the ground or point is not properly or sufficiently substantiated or amplified.

The first charge of error rests on a general objection against admitting any evidence, and the objection, as stated to the court below, was based on a general proposition which was claimed to be supported by two defects in the declaration. The proposition was, that the declaration did not set forth a cause of action. But the only specifications of defects were, first, that the breaches were not sufficiently set out; and, second, that there was no allegation of the issuing and return of an execution in the replevin suit.

When a defendant claims that a declaration is defective on its face, and still omits to demur and thereby raise the point on the record at a stage and in a form the most favorable to a deliberate and right decision, and lies by while costs accumulate and until the time of the trial, and then springs the question for the first time by an objection to evidence, it is very reasonable to hold him to pretty strict rules, and to require him, in the quaint and expressive language of Lord Hardwick, "to hit the bird in the eye;" and this is especially proper when there is no reason to suppose that the real justice of the case has been overreached.

Now, here there is no assignment that the declaration is bad. The point stands nakedly on an exception too the admission of evidence, and where, too, the objecting party in stating the ground of his objection complained of the declaration. The whole, then, rests upon the bill of exceptions, and not at all on the main record. Strike out the bill of exceptions and nothing is left for the assignment of error to apply to. As before stated, no error whatever is assigned on the main record. Now, a fault in pleading, a demurrable defect in the declaration, is not strictly and properly a ground of exception at all. Such a fault is required to be assailed in a different way. It should be either by demurrer, motion in arrest of judgment, or by assignment of error on the main record.--Reynolds v. Lounsbury, 6 Hill 534; Batchelder v. Batchelder, 2 Allen 105; Nichols v. Poulson, 6 Ohio 305.

But suppose this to be otherwise, the point is still open to an unfavorable answer. We are warranted in saying that the first specification or branch of the objection, if it should be admitted that an insufficient setting out of breaches would be a ground for excluding all evidence, was quite too indefinite. It presented to the mind of the court no distinct matter to be passed upon, and, in view of the circumstances, was very little, if any, better than no explanation at all; and the point does not appear to us to call for indulgent treatment.--Johnson v. Provincial Ins. Co., 12 Mich. 216; Bain v. Proprietors of White Haven & F. J. R. W. Co., 3 H. L., 1, 15, 16; Camden v. Doremus, 44 U.S. 515, 3 HOW 515, 11 L.Ed. 705; Russell v. Branham, 8 Blackf. 277; Atkins v. Elwell, 45 N.Y. 753; Howard v. Hayward, 10 Met. 408; Waters v. Gilbert, 2 Cush. 27; Wentworth v. Leonard, 4 Cush. 414; Edwards v. Carr, 13 Gray 234; Cayuga Co. Bk. v. Warden, 6 N.Y. 19, 30; Levin v. Russell, 42 N.Y. 251; McKeon v. See, 51 N.Y. 300.

Upon the second specification or ground of objection, it is enough to say that the precedents and authorities appear to justify what was done here. The New York courts, in passing on this statute (from whence we copied very much of ours), have held it unnecessary to aver the issuing and return of the writ; and we see no reason for introducing greater nicety than has prevailed there.--Cowden v. Pease, 10 Wend. 334; Cowdin v. Stanton, 12 Wend. 120; Shaw v. Tobias, 3 Comst. 188; Burrill's App., p. 275.

The second and third assignments of error complain of the admission of evidence to establish the execution of the bond; and the fourth objects to the introduction of the bond itself under the proof made of its execution.

There was no affidavit denying the execution, and we think the rule of court plainly applied. The declaration expressly counted on the bond, and by omitting to question its execution by affidavit, the defendants admitted it, and by so much narrowed the issue.--People v. John, 22 Mich. 461.

For the purpose of the trial this admission conclusively established the execution and delivery, and the outside facts which were gone into, as to the way in which the paper was really executed, did not impair or overreach the effect of the admission, or work any legal prejudice to the plaintiff in error.--Blake v. Sawin, 10 Allen 340.

The fifth and sixth assignments complain of the admission of the execution and officer's return, and the seventh, of the admission of the judgment.

The objections stated at the trial against the writ and return were, first, that the writ was not in proper form; and, second, that the return was not sufficient because it did not show that the officer attempted to find or return the property, or that it was not in the county.

The first ground of objection is disposed of by the remarks already made on a former point. It was too indefinite. The occasion required a distinct and suggestive statement. By that which was made the court was left in a state of complete uncertainty respecting the specific defect relied on by the objecting party, and no other duty was raised than to overrule the objection.

Only a few words are needed on the second ground. In order to get possession of the property, when it was taken out of the hands of the attaching officer, it was a necessary pre-requisite to give the bond, and therein and thereby expressly engage that if the defendant in replevin should obtain judgment the plaintiffs in replevin should return the property in case the judgment should so require. And the obligation in question following the statute did, in express terms, specify that the property should be returned on the given contingency, and not that the...