Rawson v. Finlay

• Decision Date: 13 May 1873
• Citation: 27 Mich. 268
• Court: Michigan Supreme Court
• Parties: Elias H. Rawson v. Archibald Finlay

27 Mich. 268

Elias H. Rawson v. Archibald Finlay

Supreme Court of Michigan

May 13, 1873

Heard May 6, 1873

Error to Kalamazoo Circuit.

Judgment reversed, with costs, and a new trial ordered.

O. T Tuthill and Arthur Brown, for plaintiff in error.

Hawes & Edson, for defendant in error.

OPINION

Graves J.

Finlay sued Rawson before a justice of the peace, in trespass, and declared against him for a tortious entry upon certain of his premises described in the declaration, and for taking and carrying away therefrom a parcel of lumber belonging to him. Rawson pleaded the general issue, and gave notice that he should give in evidence that he found the lumber, and requested Finlay to take it away if it belonged to him. No other pleadings were put in. The parties proceeded to trial before the justice, and Finlay gave evidence tending to show that he was the owner of the premises claimed to have been trespassed upon. But Rawson not admitting Finlay's ownership, the justice certified the cause to the circuit court, pursuant to the statute.--Comp. L. § 5330. The cause coming on to be heard in the latter court, Finlay gave evidence tending to show that he drew the lumber in question on the land in controversy, in order to build a house, and that Rawson removed the lumber therefrom to his barn-yard on an adjacent parcel. Finlay gave no other evidence upon the question of title or possession.

Rawson then offered to show, among other things, an exclusive and adverse possession in himself for twenty years, and that he was the owner, and that Finlay had never been in possession. The court, upon objection, excluded the evidence and ruled that Rawson, having failed to give notice that title would come in question, thereby admitted title in Finlay, and the jury were instructed that if they found that Rawson entered upon the premises and carried therefrom Finlay's lumber, they should give him a verdict for the value of it. They accordingly returned a verdict in his favor for twenty-nine dollars.

We think the court erred in the view taken of the case, and of the statute. The regulations restricting the defense in special cases originating in justice's courts were not applicable to this cause. When the action went to the circuit court it was because the subject of title which Finlay found it needful to go into to maintain his case could not be tried by the justice, and the very object of the law in consigning the litigation upon such contingency to the tribunal having power to investigate and determine that subject, was to afford opportunity to settle in the latter, under the issue which had been joined, the identical question which had been raised, but could not be tried in the justice's court for lack of power.

The provision would be made nearly, if not quite, meaningless by a construction which would exclude a trial in the circuit court of the question raised by the plaintiff under the issue, and on account of which alone a transfer became imperative. When the cause was removed by reason of the attitude of the plaintiff, and as a consequence of his putting the title in question on his side, it stood in the...