Wood v. Faut

• Decision Date: 22 October 1884
• Citation: 20 N.W. 897,55 Mich. 185
• Court: Michigan Supreme Court
• Parties: WOOD v. FAUT.

20 N.W. 897

55 Mich. 185

WOOD v. FAUT.

Supreme Court of Michigan

October 22, 1884

Error to Mackinaw.

Jas McNamara, for plaintiff.

Cady &amp Hoffman, for defendant.

SHERWOOD, J.

The declaration in this case is on the common counts in assumpsit, accompanied by a bill of particulars consisting of three items. The plea is the general issue, with notice of former suit and adjudication of the same matter in bar. The case originated in justice court, where the plaintiff had judgment, and on appeal to the circuit the plaintiff again obtained judgment, and the proceedings therein had are before us on error for review. The cause was tried before the circuit judge without a jury, and the case comes up on special findings; the record containing, also, a bill of exceptions.

There was testimony supporting all the findings of fact, and from these findings it appears that another suit had previously been brought by the plaintiff against the defendant for the same cause before a justice of the peace in Mackinaw county and a judgment rendered therein of no cause of action and for costs; that the declaration in the former suit was verbal, on the common counts, and showed none of the items or particulars of the plaintiff's claim; that the plea in the case was also verbally made, being the general issue with notice of recoupment and set-off, with no particulars stated; that it was urged by the defendant on the former trial that the plaintiff's suit was prematurely brought his claim not being due when the action was commenced, and that the justice so held and did not pass upon the merits of the plaintiff's claim, and made no entry upon his docket to that effect, other than his giving the judgment stated. The circuit court permitted the justice and counsel in the case to testify as to what claims were made and litigated upon that trial, and the former to state that he gave judgment for the defendant upon the sole ground that the plaintiff's claim was not due, and that he did not pass upon the merits.

Upon the testimony given the circuit judge found the above to be the facts. To the admission of this testimony and the findings of the circuit judge the defendant objected, and took his exceptions. We think the ruling of the court was correct, and the judgment well supported by the findings. Nothing appears in the pleadings or record in the suit tried before the justice showing what particular claims or items were...