Warren v. Crane

• Decision Date: 11 April 1883
• Citation: 50 Mich. 300,15 N.W. 465
• Court: Michigan Supreme Court
• Parties: WARREN v. CRANE.

15 N.W. 465

50 Mich. 300

WARREN v. CRANE.

Supreme Court of Michigan

April 11, 1883

Waiver is voluntary, and implies an election to dispense with something of value, or forego some advantage which the party waiving it might, at his option, have demanded or insisted upon.

Pleading to the merits does not waive the defects in an affidavit for the arrest of the defendant, if he has already moved to quash the proceedings and the motion has been denied.

A defendant arrested in proceedings for malicious trespass is constructively in custody so long as it is at the officer's option to confine him.

Error to Shiawassee.

McBride & Miner, for plaintiff.

Hugh McCurdy, for defendant and appellant.

COOLEY J.

This suit originated in justice's court, and was begun by warrant. The affidavit on which the warrant issued is as follows:

"State of Michigan, Shiawassee County:

"Shiawassee County.--Alcyon D. Warren, of said county, being duly sworn, deposes and says that he has, as he has good reason to believe, a just cause of action against Clark Crane, of said county, against whom he applies for process by warrant for maliciously, wantonly, and willfully going upon the land of the deponent and cutting down and carrying off one oak tree, the property of this deponent, and converting the same to his own use; of the value of $25. And further deponent saith not. A.D. WARREN."

"Sworn to and subscribed before me, this seventh day of January 1883.

"CHARLES HOLMAN,

"Justice of the Peace."

On being brought before the justice the defendant moved to quash the proceedings for defects in the affidavit, but the motion was overruled. He then asked and obtained time to plead, and on a subsequent day pleaded to the merits, and a trial was had, resulting in a judgment for the plaintiff. This judgment was removed to the circuit court by special appeal, and there, affirmed. The principal error relied upon in the appeal was the denial of the motion to quash. The case is now brought to this court by writ of error.

No attempt is made in this court to support the affidavit; but it is contended that the defects in it became immaterial, and all right to take advantage of them was waived when the defendant pleaded to the merits. We do not think so. Waiver is a voluntary act, and implies an election by the party to dispense with something of value, or to forego some advantage which he might at his option have demanded...