People ex rel. McOmber v. Holmes

• Decision Date: 07 October 1879
• Court: Michigan Supreme Court
• Parties: PEOPLE ex rel. MCOMBER v. HOLMES, Justice of the Peace. [1]

49 N.W. 926

41 Mich. 417

PEOPLE ex rel. MCOMBER v. HOLMES, Justice of the Peace. ^[1]

Supreme Court of Michigan

October 7, 1879

Application by William A. McOmber for mandamus to Albert J. Holmes, justice of the peace, to assess damages in a cause pending before him, wherein he had overruled a plea in abatement. Denied.

S. J. Scott and J. K. Wright, for relator.

PER CURIAM.

Defendants in an action of trespass brought before a justice for taking plaintiff's goods pleaded in abatement that there was a joint owner, who ought to have come in as co-complainant. Issue was taken denying that the alleged joint owner had any interest in the goods. The justice, on the trial of this issue, overruled the plea, and allowed a plea in bar. Plaintiff insisted that he ought to have assessed damages, and, as he refused, asked a mandamus to compel him to do so. The justice was right. The circuit practice now authorizes a plea in bar after a plea in abatement has been disposed of in this way, and in many cases great injustice would be done by depriving a party who has honestly pleaded in abatement of his defense on the merits. We think the practice is correct. Motion denied.

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Notes:

^[1] This case, filed October 7, 1879, is now published by request, with others, in order that the Northwestern Reporter may cover all cases in volume 41, Michigan Reports.

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