Robinson v. Kunkleman

• Decision Date: 24 May 1898
• Citation: 75 N.W. 451,117 Mich. 193
• Court: Michigan Supreme Court
• Parties: ROBINSON ET AL. v. KUNKLEMAN ET AL.

75 N.W. 451

117 Mich. 193

ROBINSON ET AL. v. KUNKLEMAN ET AL.

Supreme Court of Michigan

May 24, 1898

Appeal from circuit court, Wayne county, in chancery; James B McMahon, Judge.

Bill by Adolph Robinson and Sigmund Aronheim against Joseph Kunkleman and George Lovely. From an order overruling a general demurrer to the bill, defendants appeal. Affirmed.

Smith & Hood, for appellants.

Bowen Douglas & Whiting, for appellees.

LONG J.

The bill filed in this cause sets out, substantially, that prior to January, 1896, complainants were co-partners engaged in the wholesale liquor business at Detroit; that at that time defendant Kunkleman was a retail liquor dealer in the city of Lansing, and about January 3, 1896, complainants sold him on credit certain liquors of the value of $269.13; that about the 7th of January, 1896, Kunkleman placed his business in charge of defendant Lovely; that about the 14th of January complainants, under the claim that Kunkleman had fraudulently purchased the goods with a fraudulent purpose not to pay for them, demanded the goods of Lovely, and, upon being refused brought replevin in the circuit court for Ingham county; that afterwards, and in December, 1896, the replevin suit was tried in the said circuit court, and a verdict rendered in favor of Lovely, who waived a return of the property, and was awarded judgment against complainants in the sum of $257.80 and costs; that no appeal was taken therein, and that such judgment remained in full force and effect in the circuit court for the county of Ingham; that on the trial of said cause defendant Lovely was sworn as a witness in his own behalf, and testified that he had never bought the said goods and merchandise of said Kunkleman, and at no time had he any interest therein except as agent for Kunkleman; that defendant Kunkleman was also sworn as a witness in behalf of defendant in said replevin suit, and testified, in substance and effect, that he had never sold said goods and merchandise to Lovely, but that he had put said Lovely in charge of the goods and merchandise, to sell the same for him as his agent; and that Kunkleman further testified on the trial of said replevin suit that he had never informed Aronheim that he had sold or traded the said goods. The bill then alleges that, at the time when the replevin suit was commenced, the possession of Lovely was the possession of Kunkleman, and that the judgment recovered by Lovely was in fact a judgment in favor of Kunkleman, although in name in favor of Lovely. The bill further alleges that afterwards, and in January, 1897, complainants brought suit against Kunkleman to recover for the goods sold, before one William Ennis, a justice of the peace of the city of Lansing and that on the 30th of January they recovered judgment against him, on account of the goods sold, for $269.13 and costs; that such judgment was unsatisfied at the time of filing of the bill, and remained of record before the justice; that Kunkleman was insolvent at the time the judgment was rendered, and still is insolvent. The bill avers that complainants are ready and offer to pay into court the difference between the amount of the judgment held against them by Lovely and the judgment which they hold against Kunkleman; that the amount now owing by them on the Lovely judgment is the sum of $100, "over and above any and all claims or liens which, so far as your orators are advised, any person or persons claim to have against said judgment." The bill then prays that Lovely and Kunkleman may be enjoined from selling, assigning, or disposing of the judgment rendered in the replevin suit, and prays that the moneys owing complainants from Kunkleman on the judgment recovered against him before Ennis, justice of the peace, may be set off against the judgment recovered against them by Lovely in the replevin suit, and that, on the payment of the difference between the amount due on the judgment obtained by Lovely against complainants and the amount due complainants against Kunkleman, "the said judgment in said replevin suit may be discharged, and your orators, and each of them, freed from any and all liability thereon." The bill then concludes with prayer for process.

The following demurrer was interposed: "That the complainants have not stated such a case in their bill as entitles them to relief in a court of equity, for the following reasons: For that said bill should have been filed, and said cause begun, if at all, in the circuit court for the county of Ingham, in chancery, it appearing by said bill that the action of replevin therein set forth was commenced, tried on the merits, and judgment rendered therein, in the circuit court for the county of Ingham, and that the judgment alleged to have been recovered by said complainants against said defendant Kunkleman was recovered in a justice court for the county of Ingham, and is now of record therein, and any action or suit to set off anything or matters against said judgment in replevin, or vacate or impair the validity thereof, is local, and must be commenced in the county where the judgment was rendered, and that the circuit court for the county of Wayne has no jurisdiction to entertain said bill; for that all material facts set forth in said bill of complaint were available and proper matters of defense in said action of replevin, and were necessarily adjudicated therein, and are therefore res judicata; for that no mutuality exists or is alleged to exist between the debt or judgment recovered by said defendant Lovely against said complainants and the judgment recovered by said complainants against said defendant Kunkleman; for that it is not alleged that the interest of said Lovely in the judgment recovered by him amounts to the sum of one hundred dollars over and above the liens thereon in favor of his counsel in recovering such judgment, as well as all other services performed by such counsel for said Lovely; for that it is not alleged in said bill that the facts upon which the set-off is now claimed were unknown to complainants at the time the action of replevin was tried; for that neither fraud, accident, mistake, or other causes for equitable relief are alleged or shown to have contributed to, or have been the cause of the rendition of, the said judgment in replevin recovered by the said George Lovely against the said complainants; for that it appears by said bill that all the several matters and things therein alleged against the enforcement of the said judgment recovered by said Lovely in said replevin suit against complainants were, if valid, available to said complainants in defense of the judgment recovered by said Lovely; for that said bill and the relief therein prayed seeks to prevent and delay the attorneys and counsel of said Lovely from the collection of their lien and interest upon and in the said judgment in replevin pending litigation in this cause." The demurrer was overruled, and from this order the defendants appeal.

Complainants contend that the demurrer is special, and not general, and therefore the order overruling it is not one from which an appeal will lie, under section 6737, 2 How. Ann. St., which provides that "any complainant or defendant, who may think himself aggrieved by the order overruling a general demurrer or by the decree or final order of a circuit court in chancery, in any cause, may appeal therefrom to the supreme court." Prior to the enactment of this statute, in 1883, no appeal would lie from an order overruling a demurrer. Bennett v. Nichols, 12 Mich. 25; Kirchner v. Wood, 48 Mich. 199, 12 N.W. 44. Since the passage of the act of 1883, it has many times been held that appeals will lie only from orders overruling general demurrer. Turck v. Soule, 55 Mich. 128, 20 N.W....