Smith v. Dodge

• Decision Date: 16 October 1877
• Citation: 37 Mich. 354
• Court: Michigan Supreme Court
• Parties: Charles W. Smith v. Joseph J. Dodge

37 Mich. 354

Charles W. Smith v. Joseph J. Dodge

Supreme Court of Michigan

October 16, 1877

Argued October 5, 1877

Error to Cass. (Coolidge, J.)

Replevin. Defendant brings error. Affirmed.

Judgment affirmed with costs.

Merritt A. Thompson for plaintiff in error. A justice has no jurisdiction to issue a writ of replevin or hear the suit until an affidavit containing all the statutory requisites has been made and filed with him (Phenix v. Clark 2 Mich 327; Elliott v. Whitmore 5 Mich. 537; Henderson v. Desborough 28 Mich. 170) and pleading over does not waive the want of jurisdiction. Woodruff v. Ives 34 Mich. 320; Exp. Stephenson 32 Mich. 60. A declaration in replevin that does not answer the statutory requisites with regard to time, place and value, and the unlawful detention of the property is bad. How. Stat § 8338, Trudo v. Anderson 10 Mich. 370; Bond v. Mitchell 3 Barb 304; Pattison v. Adams 7 Hill 126. A declaration insufficient in substance cannot be cured by the plea. Pelton v. Ward 3 Cai. 73; Stoflet v. Marker 34 Mich 313.

Howell & Carr for defendant in error. The omission of the word "detained" from an affidavit for a writ of replevin, is not fatal if the meaning is fully conveyed by the context (Le Roy v. East Saginaw 18 Mich. 233). but the defect, if any, is waived by joining issue without moving to quash. Burson v. Huntington 21 Mich. 415; Towar v. Lamb 6 Mich. 362; Shaw v. Moser 3 Mich. 71; Stewart v. Hill 1 Mich 265; Falkner v. Beers 2 Doug. (Mich.) 117. A question that is not raised in the circuit court cannot be raised in the Supreme. Pardee v. Smith 27 Mich. 33; D. H. & I. R. R. Co v. Forbes 30 Mich. 165. An oral declaration in replevin not having been objected to before the justice who first tried the suit, cannot be objected to in later stages. Daniels v. Clegg 28 Mich. 32; Hurtford v. Holmes 3 Mich. 464; Kinyon v. Fowler 10 Mich. 16; Stange v. Clemens 17 Mich. 402; Groff v. Griswold 1 Den. 432; Krueger v. Pierce 37 Wis. 269. Where pleadings before a justice are oral, they are seldom questioned even by demurrer, if intelligible. Stolp v. Van Cortland 3 Wend. 492; Civill v. Wright 13 Wend. 403; Young v. Rummell 5 Hill 60; Wilbur v. Taber 9 Gray 361; Bowditch v. Salisbury 9 Johns. 366; Hebberd v. Delaplaine 3 Hill 187; Petrie v. Woodworth 3 Cai. 219; Keyser v. Shafer 2 Cow. 437; Cronise v. Carghill 4 Cal. 120; Meyer v. Town etc. 9 Wis. 233; Swineford v. Pomeroy 16 Wis. 553; Dehnel v. Komrow 37 Wis. 336; How. Stat. Ch. 264.

OPINION

Campbell, J.

This is a case where complaint is made of the affirmance on certiorari of a justice's judgment in replevin. Alexander L. Thorp, a justice of Cass county, issued a writ on the affidavit of Dodge, for a horse of the value of one hundred dollars. The affidavit described the horse, and alleged that Smith had him in his possession "unlawfully from the possession of said Joseph J. Dodge, at the township of Calvin, in said county of Cass, by Charles W. Smith, and that said Joseph J. Dodge is now lawfully entitled to the possession of said goods and chattels." The remainder of the affidavit is not criticized.

Under this writ the property was taken and delivered to the plaintiff. On the return day the parties appeared, and the plaintiff declared verbally "in replevin for the property described in said writ." The defendant pleaded the general issue, and the court proceeded to hear the cause. Just as it was about opening, the defendant desired to see the affidavit, which had been accidentally enclosed in another paper and could not at the time be found. He thereupon moved to dismiss the case for that reason. This motion was denied, and the hearing proceeded; and after all the witnesses were heard and the cause was submitted, the justice, as stated in his return, "did forthwith render judgment in favor of the plaintiff Joseph J. Dodge, and against the defendant, for the sum of one cent damages and nine dollars and thirty cents costs of said suit."

The grounds set up for reversing the judgment were: 1. the refusal of the justice to dismiss the case; 2. insufficiency of the declaration; and 3. error in the judgment in granting damages when none were alleged, and in granting costs when there was no judgment touching the property. The circuit court affirmed the judgment.

Inasmuch as the parties had gone to an issue on pleadings, it is questionable whether it was not too late to object to the affidavit. But while the word "detained" is omitted, the affidavit makes allegations which are legally equivalent. To say that a man has property in his possession unlawfully, to which another is entitled, means about the same thing as to say it is detained. We do not think the affidavit fatally defective.

The declaration indicated precisely what the plaintiff desired to put in issue. If defendant had demurred it would have been a matter of course to allow its amendment. By pleading the general issue he indicated a willingness to go to trial upon the merits, and the case was fully tried in that way. There is nothing in the statute to prevent oral pleadings in replevin before a justice, and where they are resorted to nothing is looked to but matters of substance. If the issue made is intelligible, and a trial is had under it without objection, it would not be proper thereafter to reverse a judgment for objections not made before the justice.

The objections to the judgment itself are frivolous. It only covers nominal damages, and no return need be awarded where the property has been delivered under the writ to the plaintiff. It was held in Lamberton v. Foote 1 Doug. 102, that a verdict that "this jury find for the plaintiff" is a sufficient verdict in replevin, where no special facts required any peculiar finding, and that a justice was bound to enter judgment on it. That case is in point to sustain the justice's judgment in the present cause.

The circuit court acted properly in refusing to disturb the judgment of the justice.

The judgment below must be affirmed with costs.

The other Justices concurred.

A liberal rule as to pleadings in justices' courts was laid down as early as Hurtford v. Holmes 3 Mich. 460 in which it was held that they should be reviewed with liberality, and that technicalities should be discountenanced and substance regarded rather than form. If an...