Stevens v. Harris

• Decision Date: 06 March 1894
• Citation: 99 Mich. 230,58 N.W. 230
• Court: Michigan Supreme Court
• Parties: STEVENS v. HARRIS et al.

58 N.W. 230

99 Mich. 230

STEVENS v. HARRIS et al.

Supreme Court of Michigan

March 6, 1894

Case made from circuit court, Isabella county; Henry Hart, Judge.

Action by Joseph J. Stevens against Albert Harris and another originally brought in justice court. The action was removed to the circuit court by special appeal. The action was dismissed, and brought to the supreme court by case made. Reversed.

Dodds & Dodds, for appellant.

F. C Wallington and I. A. Fancher, for appellees.

MONTGOMERY J.

This case originated in justice court, and was removed to the circuit by special appeal. At the circuit the special appeal was brought on to be heard, and the circuit judge held that the justice never obtained jurisdiction, and dismissed the case. The affidavit for special appeal presented two points which we quote; "(1) That the said justice erred in holding that the return of the officer to summons was a good return, against the objections of defendants' counsel; (2) that the said justice erred in holding that the declaration of plaintiff was sufficient under the law, against the objections of defendants' counsel." The latter objection was not one which could be raised by special appeal. Albert v. Sutton, 28 Mich. 2; Dalton v. Laudahn, 30 Mich. 349; McGraw v. Sturgeon, 29 Mich. 426; Manhard v. Schott, 37 Mich. 234. We think that the constable's return of service was insufficient. But it is contended by appellant that the defendants, by raising the question of the sufficiency of the declaration, and in effect entering a general demurrer, waived the defect, and conferred jurisdiction upon the justice. The return upon the subject is that the "affidavit is erroneous to discontinue the case on plaintiff's declaration, for the attorney withdrew the motion." This return so far corroborates the statement in the affidavit as to show that the question of the sufficiency of the declaration was presented, but afterwards withdrawn. A demurrer in justice court must be general, and may be written or verbal. 2 How. St. � 6875. A general demurrer to a declaration is simply an objection to it on the ground that it is insufficient in law. It cannot be doubted that, in whatever form it be put, any objection in justice court, by the defendant, that the plaintiff's declaration is insufficient in law, would be held sufficient to constitute a general demurrer. The record shows that defendants presented that question to the justice. A general demurrer is sufficient appearance to give the court jurisdiction. Thompson v. Association, 52 Mich. 524 18 N.W. 247; Norberg v. Heineman, 59 Mich. 214, 26...