Waldo v. Waldo
| Decision Date | 20 December 1883 |
| Citation | 52 Mich. 94,17 N.W. 710 |
| Court | Michigan Supreme Court |
| Parties | WALDO v. WALDO. |
In a declaration in trespass quare clausum allegations of trespass to the person and of conversion, may be inserted as matters of aggravation.
Where a special notice is attached to the plea of the general issue and the proof offered thereunder is insufficient to establish a defense, the defendant is limited to such matters as may be introduced under the plea itself.
An Indiana divorce cannot be impeached in a purely collateral civil action in Michigan by seeking to show that the residence of the complainant in the divorce suit was not such as to give the Indiana court jurisdiction.
Error to Ingham.
M.V. & R.A. Montgomery, for plaintiff.
Q.A Smith, for defendant and appellant.
It is not going far to say that this litigation has been made a pretext for discussions which do not belong to it. The subject may be best sifted and explained by referring--First to certain illustrating facts which are not disputed; and, secondly, to the effect due to the pleadings. By such means we may see what were the questions to be tried, and what matters were irrelevant, and how the points now agitated by the defense ought to be considered. In August, 1864, the plaintiff resided in the state of Indiana, and then and there inter-married with one Henry Carey. In January, 1871, she instituted proceedings in the court of common pleas of Steuben county, in the same state, against said Carey, for a divorce from the bonds of matrimony. The record of those proceedings is made a part of the bill of exceptions, and it appears therefrom that Carey the husband, appeared and submitted to the jurisdiction. He answered to the merits and joined issue on the allegations of the complaint. It also appears that evidence was taken on the points in issue, and that Jerome B. Waldo gave evidence tending to show that the plaintiff had been a resident of Indiana since 1869. At the January term for 1872, as the record further represents, the court considered the cause on the pleadings and evidence, and made a final decree upon the merits of law and fact, and thereby adjudged a disssolution of the marriage. July 25, 1872, at Williamston, in Ingham county, in this state, she inter-married with the said Jerome B. Waldo, and they thence lived together at that place as husband and wife, until May, 1880, at which time he died intestate. They were occupying a suite of rooms in her building, known as the National Hotel. The rooms constituted their habitation. The furnishing was by themselves. She continued to occupy, after his death, and the place was her dwelling. She claimed the goods and furniture as her sole property, alleging that a portion was bought with her individual means, and that the rest was given to her by Waldo some time prior to his death.
The defendant Scott Waldo is a son of decedent, Jerome B. Waldo, and in April, 1881, he procured letters of administration on his father's estate, from the probate court of Ingham county. Two days later he called at plaintiff's apartments, and asked to be admitted, and he swears that he told her his business was to make an inventory and appraisal of his father's estate. She refused to admit him, and locked the door against him. He then went to one of the appraisers, who was a justice of the peace, and in character of administrator procured a writ of replevin against the plaintiff, for a couch which, he alleged, belonged to the estate. The writ was handed to defendant Plotts, who was a constable, and he, together with defendant Waldo, and the justice, who was also appraiser, proceeded, with some others, to the plaintiff's rooms, and demanded admittance. She refused to let them enter. Upon this, they immediately broke in the door and entered the apartments, and seized the goods and furniture there being, and carried them away. She then brought this action. It was subsequently discontinued, as to defendant Smith, and under the judge's charge, the defendants Plotts and Williams were acquitted. The defendant Scott Waldo was held for $650. It follows that the sole consideration here is whether the proceedings are open to any valid complaint on his account.
He censures the declaration. It is offered as an argument that incompatible grounds of action are actually combined. Trespass de bonis, trespass to the person and trover, we are told, are jumbled together in the same count. There was no demurrer, and were it true that the declaration is chargeable with duplicity, we should not be inclined to listen to the objection now. But the criticism offered is refuted by the most familiar rules of pleading. The declaration is in trespass quare clausum, with allegations of personal trespass and conversion by way of aggravation. The right to sue for breaking and entering the apartments of the plaintiff is unquestionable.. Swain v. Mizner, 8 Gray, 182; Lane v. Dixon, 3 C.B. 776; Com.Dig. "Trespass, B,"1, 2. That a battery may be laid in aggravation has been recognized time out of mind,--Russell v. Corn, 6 Mod. 127; Read v. Marshall, 8 Mod. 26; Bullers, N.P. 89; 1 Chitty.Pl. (7th Eng. and 16th Amer.Ed.) 412, 413,--and it is well settled that conversion may be charged in the same way. Pratt v. Pratt, 6 Dowl. & L. 20; 17 Law J.Exch. 299. To this declaration the defendant Waldo pleaded the general issue, and such plea entitled him to give evidence of any matters going to show that he never did the acts complained of. But it authorized no defense which would admit that he was prima facie a trespasser. He could introduce no evidence under it to show a justification, or license, or excuse.
In order to adduce evidence for either of those purposes a special notice was indispensable. Osburn v. Lovell, 36 Mich. 246-250; 2 Saund.Pl. & Ev. 856; Gould, Pl. c. 6, �� 38, 58. Acting on this principle, he appended a special notice to his plea, to the effect that, as to the breaking and entry and the seizure and conversion of the goods as charged, he would show his appointment as administrator of the estate of Jerome B. Waldo; that the goods in question belonged to that estate; and that he entered peaceably, as he lawfully might, to take said goods into his possession and have them inventoried. The notice was confined to this matter. The proceedings by replevin were not mentioned, and unless what he set up was, in law, sufficient to justify or excuse his entry, he was defenseless on such grounds, and that it was not sufficient seems obvious. The plaintiff was in peaceable possession, and claiming to be the owner, and his appointment as administrator did not...
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