Miller v. Davis
| Decision Date | 14 February 1928 |
| Docket Number | No. 63,Oct. Term.,63 |
| Citation | 217 N.W. 904,241 Mich. 544 |
| Parties | MILLER v. DAVIS et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, Wayne County; Major L. Dunham, Judge.
Suit in replevin by Frank P. Miller against Stewart Davis and others. Judgment for defendants, and plaintiff brings error. Reversed.
Argued before the Entire Bench.Albert McClatchey, Firmon Lush, and Harry J. Weber, all of Detroit, for appellant.
D. L. Albaugh and Roy W. Bonam, both of Detroit, for appellees.
The writ of replevin by which this suit was instituted in the circuit was quashed on defendants' motion. This order to quash was based on a determination by the trial court that the property in suit was held by the defendants by virtue of a writ of execution, and therefore was not subject to replevin. C. L. 1915, § 13084. The case is in this court on plaintiff's writ of error.
The plaintiff herein was the defendant in a suit in justice court, and judgment was rendered against him. He thereupon perfected an appeal to the circuit court. After the appeal had been pending for more than a year, the circuit judge entered an order in substance as follows: ‘This cause is hereby dismissed without prejudice.’ While the record is not clear on this point, we assume this order was entered under the provisions of section 12574 of the C. L. 1915, which provides for dismissal of a cause for want of prosecution for more than one year. After the entry of the order of dismissal, and evidently on the theory that the dismissal in the circuit permitted the judgment to be revived in the justice court (see C. L. 1915, § 14420), execution was issued by the justice and placed in the hands of a constable, who, together with another constable, seized an automobile belonging to the plaintiff herein. This suit in replevin was thereupon instituted in the circuit court by the plaintiff against these two constables. They entered a special appearance, and made a motion to quash, wherein they asserted plaintiff's affidavit, filed incident to issuing the writ of replevin, was false, in that it stated the automobile was not seized or held under an execution or attachment. The writ was quashed.
The question presented is this: When an order is entered in the circuit court dismissing a cause without prejudice for want of prosecution after an appeal has been regularly perfected from the justice court, is the judgment of the justice thereby reinstated upon compliance with section 14420, C. L. 1915, or does the order of dismissal without prejudice nullify the justice court judgment? The law is well settled in this state that a discontinuance of an appeal is not the same as a discontinuance or dismissal of a suit. French v. Weise, 112 Mich. 586, 70 N. W. 1101. When an appeal is dismissed or discontinued,...
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