Ziegler v. Henry

• Citation: 77 Mich. 480,43 N.W. 1018
• Court: Michigan Supreme Court
• Decision Date: 08 November 1889
• Parties: ZIEGLER v. HENRY ET AL.

43 N.W. 1018

77 Mich. 480

ZIEGLER v. HENRY ET AL.

Supreme Court of Michigan

November 8, 1889

Error to circuit court, Kent county; WILLIAM E. GROVE, Judge.

Action in assumpsit brought by Herman Ziegler in justice's court, before MILTON M. PERRY, Esq., upon a judgment theretofore rendered against Delos G. Henry by ROBERT HUNTER, Jr., a justice of the peace. Plaintiff declared upon the common counts. Defendant pleaded the general issue, and trial was had thereon, resulting in a judgment for plaintiff for $23.78, and costs of suit. Defendant appealed to the circuit court, where trial was had by and before the court without a jury. An amended declaration, declaring specially upon said judgment, was by leave of court afterwards filed on November 5, 1888; and on the 8th day of November, 1888, written findings of fact were filed, and judgment rendered in favor of plaintiff and against defendant and Eber Rice, surety on the appeal bond for the sum of $25.01, and costs of suit to be taxed, to review which judgment defendants sue out this writ of error.

SHERWOOD C.J.

This case is an action of assumpsit upon a judgment tried before a justice of the peace on the 22d day of July, 1887. The declaration was upon the common counts. Defendants pleaded the general issue, with notice of set-off and recoupment. The judgment offered in evidence upon the trial and which was the plaintiff's only cause of action, was rendered before a justice of the peace on the 22d day of July, 1881, for the sum of $14.13 damages, and $2.45 costs in favor of the plaintiff and against Henry, as defendant. The plaintiff obtained judgment on the trial of the case in the Kent circuit on appeal, before Judge GROVE without a jury, for the sum of $25.01 damages, on the 8th day of November, 1888, with costs of suit. From this judgment the defendants bring error to this court, and ask a reversal. We have failed to discover any error in the record, except so far as relates to appellant Rice. After the cause was submitted to the court, counsel for defendants asked the court to make and file written findings upon the law and the facts, and the circuit judge made the following: "In this cause, a written finding of fact having been requested I hereby find as follows: That on the 14th day July, 1881 suit was commenced before Robert Hunter, Jr., of Lowell, Mich., properly qualified and duly elected justice of the peace of said county, by summons returnable the 22d day of July, 1881, in favor of F. Herman Ziegler as plaintiff, and against Delos G. Henry as defendant. That on the 16th day of July, 1881, as appears by the docket entry of said justice, said summons was returned, 'that the same had been personally...