McDonald v. Weir

• Decision Date: 11 July 1889
• Court: Michigan Supreme Court
• Parties: MCDONALD ET AL. v. WEIR.

42 N.W. 1114

76 Mich. 243

MCDONALD ET AL. v. WEIR.

Supreme Court of Michigan

July 11, 1889

Error to circuit court, Iosco county; SIMPSON, Judge.

Henry & Jahraus, (McCutcheon & Elliott, of counsel,) for appellees.

MORSE J.

The plaintiffs sued defendant in a justice's court for labor performed, as they claim, upon a joint hiring at five dollars per week for the two. The defendant did not appear, and the plaintiffs had judgment for $89.39. The defendant took a special appeal to the circuit court for the county of Iosco. Upon argument the special appeal was overruled, and the parties proceeded to trial as on a general appeal. After the plaintiff Catherine McDonald had been sworn as a witness and examined and cross-examined, the defendant's counsel asked for a nonsuit, on the ground that it appeared from her testimony that the plaintiff Annie McDonald was an infant but 17 years of age, and that no next friend had been appointed for her before commencement of suit. This was the first time the question had been raised. After some discussion among counsel the circuit judge made an order appointing Catherine McDonald as next friend of Annie. This is assigned as error. This action was proper. A case directly in point is Sick v. Association, 49 Mich. 50, 12 N.W. 905. Defendant's counsel then stated that they were not there to meet the case on the merits; that they had relied upon this defense, and the making of the order had deprived them of it; if they had had a chance to appear in justice's court they should have filed the plea, and given notice of an offset; as the case then stood they were not prepared for trial. The court asked if they wished an adjournment. Counsel stated that they did not, unless the same could be granted without terms. The trial then proceeded. Defendant's counsel then objected to any testimony on the part of the plaintiffs on the ground that no bill of particulars had been filed or furnished in the case. Plaintiffs' attorneys claimed that no notice had been served upon them to furnish such bill. Defendant's attorney then read the affidavit of one Deitz that he served a demand for a bill of particulars upon J. F. Henry, one of the firm of Henry &amp Jahraus, attorneys for plaintiffs, and asked permission to file the same, which was granted. The affidavit states that this demand was served in the month of February, 1888, but the exact date could not be given. It was objected that this demand was served before Henry & Jahraus had appeared in the circuit court, although they were plaintiffs' attorneys in the justice's court. It was contended that the notice at the time it was served should have been served on the plaintiffs personally. It also appeared that the following bill of particulars was filed in the justice's court: "To work and labor $114.39." J. F. Henry, denied that any demand for a bill of particulars was served upon him as stated in Deitz's affidavit. After some talk among counsel, the court suggested that he would permit the plaintiffs to file a bill of particulars then, which was done, the items of the same amounting to $280 for work and labor. Defendant's counsel objected to this, and took an exception, and then asked time to file and plead an offset. The court granted to defendant the privilege of doing so instanter, but it was claimed that the items of the set-off desired to be pleaded were at Oscoda, some 16 miles from the place of trial, and could not then be given. Defendant's attorney then moved the court for time to produce the items of his set-off, and that the term fees be paid to them by plaintiffs. The defendant had pleaded the general issue before the trial, but had given no notice of set-off. The court and attorneys for the plaintiffs offered to grant defendant a continuance, and the right to amend his pleadings, upon the payment of five dollars' attorney fee and the costs of the term,...