10 Mich. 229 | Mich. | 1862
This was a proceeding before a Circuit Court Commissioner to recover the possession of certain land, claimed to be wrongfully withheld by the defendant Smith. The Commissioner gave judgment for restitution in favor of complainant. The defendant appealed to the Circuit Court: and the Circuit Court, on the trial of the appeal, gave a judgment of dismissal, on the ' ground that the matter in controversy was not within the jurisdiction of the Commissioner, and, consequently, that the Circuit Court had no power to hear and determine the matter in controversy on appeal; and the complainant removes the case to this Court by writ of error.
It is clear from the nature of the case stated in the complaint, that it was intended to be brought under the twelfth and thirteenth sections of chapter 123 Rev. Stat. of 1846 (Chap. 150 Comp. laws) applicable to cases where possession has neither been taken nor held by force, and that, if the complaint cannot be sustained under these sections, it must fail.
Several questions have been raised, which, from the view we have taken of the case, we do not .deem it necessary to notice. It is objected by the defendant that, even admitting the case made by the complaint to be, in other respects, sufficient, it fails to make a case coming within the provisions of the statute, and therefore to give jurisdiction to the Commissioner; because it does not aver that the complainant was “entitled to the possession of the premises ” at the time the complaint was instituted.
This being a special proceeding, not according to the course of the common law, and before a special tribunal of limited powers, it is clear that the complaint must show upon its face all that is necessary to bring the case within the statute, and to confer jurisdiction, or none can be obtained.
Under the Revised Statutes of 1838, Chap. 5, Title III,
It is doubtless true that a complainant is not bound to avail himself of the benefit of this section, but is still at liberty to set out in full the particular facts to bring his case within the statute. If however, he elect to do this, he can omit no fact which is essential to his case,, or which is necessarily included in, or implied by, the general form of complaint indicated by the statute.
Whether under this thirteenth section it would be necessary to indicate in any manner under what clause of the twelfth section the complainant intended to bring his case, it is not necessary here to decide; but we are inclined to the opinion that this may be left to the proof.
But it is assigned as error that the Circuit Court gave judgment for costs against complainant, which it is insisted the Court had no authority to do, if he had no jurisdiction of the subject matter of the complaint.
Had the statute provided this pi;pceeding as an original one in the Circuit Court, and the complaint had been thus defective, this objection would, doubtless, be well taken. But when the statute gives an appeal, as in this case, from the Circuit Court Commissioner to the Circuit Court, it gives to the latter the jurisdiction to decide upon the jurisdiction of the Commissioner as one of the questions involved in the appeal, and the appeal may be brought for the purpose of avoiding the effect of the Commissioner’s decision on this very ground. We can see no reason therefore to doubt the power of the Circuit Court to give the judgment for costs against the complainant in this case, under § 5600 Comp. Laws, as' the complainant would have been entitled to costs had the judgment been in his favor:— Ibid. §§ SSSH and 4991. We think, therefore, there was no error in the judgment or proceedings of the Court below, and that the same should be affirmed, with costs.
I agree in the. result arrived at by my brother Christiancy, both as to the insufficiency of the complaint and the liability for costs.
Judgment affirmed.