Wiest v. Layendyk

• Decision Date: 08 February 1889
• Citation: Wiest v. Layendyk, 73 Mich. 661, 41 N.W. 839 (Mich. 1889)
• Court: Michigan Supreme Court
• Parties: WIEST v. LAYENDYK.

41 N.W. 839

73 Mich. 661

WIEST v. LAYENDYK.

Supreme Court of Michigan

February 8, 1889

Error to circuit court, Kent county; MONTGOMERY, Judge.

LONG J.

This is an action on the case for slander, brought in the circuit court for the county of Kent. The suit was commenced by capias ad respondendum, and the plaintiff had judgment for $75. Defendant brings the case to this court by writ of error. The writ was issued on February 2, 1887, and on April 8, 1887, plaintiff filed and served his declaration. Defendant moved to quash the writ for the reason that the affidavit upon which the writ was issued was insufficient. On May 2, 1887, the motion came on to be heard, and was denied by the court. Defendant then pleaded to the declaration, and the cause proceeded to trial upon merits, resulting in verdict and judgment for plaintiff. The allegations in the affidavit for the writ are "that the plaintiff is a butcher in the city of Grand Rapids, and that he has been engaged in the retail meat market business for one year and six months. That on or about July 3, 1887, he had two turkeys in his meat market, which he had that day purchased, and on the same day he had sold one of the turkeys for seventy-five cents. That the defendant, on the 29th day of January, 1887, did falsely and maliciously slander and impute a crime to plaintiff by speaking and publishing to and in the presence of one Louis Seyforth and one R. J. Greaf, and other persons then and there present in the business place of the said defendant in said city, saying to them, the above-named persons: 'Fred Wiest is a thief he stole two turkeys from a butcher, and sold them for seventy-five cents apiece,' and other words to that effect. That by reason of the slanderous words so maliciously spoken by defendant people will have no dealing with plaintiff, and it thereby does great damage to his business and character. That plaintiff is cognizant and has full knowledge of the facts set forth in the affidavit, and believes he has a cause of action," etc. After the jury was sworn in the case, the defendant again moved the court to dismiss the writ, setting out in his motion the reasons therefor. This motion was overruled by the court. Error is assigned upon the ruling of the court in denying defendant's two motions to dismiss.

Even if the affidavit was insufficient the defendant is not now in a position to insist upon this allegation of error. He had pleaded to the declaration, and gone to trial upon the merits. If he had desired to test the sufficiency of the affidavit upon which the writ was issued a way was open to him, but he cannot, after pleading, and trial upon the merits, and judgment, raise the question by writ of error. Taylor v. Adams, 58 Mich. 187, 24 N.W. 864; Pardee v. Smith, 27 Mich. 38; Manhard v Schott, 37 Mich. 234; Miller v. Rosier, 31 Mich. 475; Baldwin v. Circuit Judge, 48 Mich. 525 12 N.W. 686.

Error is also assigned upon the ruling of the court in permitting the answer of the plaintiff to the following question to stand: " Question. He never said anything to you after that, did he? Did John ever talk to you after that? Answer. Oh, the next time I saw him I could not tell. Two or three months he came in, and took all the most of the customers away." Defendant's counsel moved to strike out this answer, as the declaration contained no averment of damage to plaintiff's business. The...