Bryan v. Smith, 10 Mich. 229

Bryan v. Smith

10 Mich. 229 | Mich. | 1862

Christiancy J.:

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, *234Part 3, and the amendment of 1840 [haws of 1840, p* 83 &c.)5 which made no provision as to the ' form or requisites of the complaint,, this, on the general principles of pleading, could only be done by setting- forth the particular facts malting a case within the statute; Caswell v. Ward, 2 Doug. Mich. 374; Royce v. Bradburn, Ibid. 377. This was found to be often difficult and embarrassing, and not well adapted to a summary proceeding. The Revision-of 1846, Chap. 123, was, we think, intended to remove this difficulty to some extent, by indicating a form of complaint, in which the case might be set out in a general form, without setting forth the particular facts, and somewhat on the principle of the statute declaration in ejectment. The twelfth section of the chapter describes the various classes of cases in which this proceeding may be had. The thirteenth section is in the following words-: “In the cases specified in the preceding section, the person entitled to the possession of the premises, his agent or attorney, may make complaint in writing and on oath, and deliver the same to a Circuit Court Commissioner or Judge of the Circuit Court for the county, setting forth that the person complained of is in possesáon of the lands- or tenements in question, describing them, and that such person holds the same unlawfully and against the right of the complainant.”

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.

*235But the complaint must show upon its face that it is made by the “person entitled to the possession, his agent or attorney.” No other person is competent to make it. In whatever form, therefore, the complaint is made, the allegation that the complainant (or person in whose behalf the complaint is made) is at the time entitled to the possession, constitutes a necessary part of the complaint, without which no jurisdiction can be obtained. It' is true the latter part of the section does not expressly enumerate this as one of the matters to be set forth; but it is necessarily implied by'the former portion of the section, which requires the complaint to be made by the “ person entitled to the possession, his agent or attorney.” This was expressly decided in Bush v. Dunham, 4 Mich. 339. The decision, it is true, was made upon a complaint under the third section of the same chapter; but the language of the two sections is identical, in this respect; in neither is the allegation expressly required in that part of the section stating what shall be set forth; but its necessity is equally and necessarily implied in both. In the present case there is no such allegation. It is true the complaint, after setting forth- a certain deed to complainant fi;om Moses Smith and wife, which reserved a life estate to the grantors, and averring the death of the two grantors — the last on the fourth day of June 1858 — avers that complainant thereby “became entitled to the possession of the premises.” This, however, is but an allegation that he was entitled to the possession on the fourth day of June, 1858, more than fourteen months prior to the making of the complaint. As matter of evidence, ‘a fact, in its nature continuous, being once shown to exist, will often be presumed to continue, unless the contrary be shown. Whether this rule applies to pleading in ordinary cases, it is not necessary here to determine, as it certainly cannot apply to the averment of a jurisdictional fact, which is required to be an existing fact at the time the proceeding is instituted,.in order *236to confer jurisdiction of a special proceeding like this. This point was also directly decided in Bush v. Dunham, ubi supra. The express allegation of the existing right of the complainant to the possession can, we think, be dispensed with only by setting out the particular facts which show the right to be an existing one. Hence we think the complaint in this case was not sufficient to confer jurisdiction.

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.

Martin Ch. J. and Manning J. concurred, Campbell J.:

I agree in the. result arrived at by my brother Christiancy, both as to the insufficiency of the complaint and the liability for costs.

*237I think also that enough should appear on the complaint to show that the case comes within one of the enumerated classes in which summary proceedings are allowed. It is a general rule that the jurisdiction of special tribunals over the case presented should appear on the record, and it seems to me this is not made otherwise by the statute. I see nothing in our present law to make the case of Caswell v. Ward, 2 Doug. Mich. 376, inapplicable. That case was decided upon another statute, but I do not think that upon this point there is any repugnancy between the different enactments.

Judgment affirmed.