| Mich. | May 16, 1890
Lead Opinion
The facts in this case are briefly stated in the brief of counsel for appellants, as follows:
“This action was brought in a justice court under the provisions of chapter 304, How. Stat., entitled ‘Punishment of Fraudulent Debtors/ The defendant was arrested under the warrant issued in the case, and brought before the justice. On appearing in court, instead of controverting the facts and circumstances set forth in the*48 affidavit for his arrest, or taking other measures as provided for by section 8756, a plea was filed purporting to be a plea to the jurisdiction of the justice, on the ground of interest. To this plea counsel for appellants filed a demurrer. On the hearing of the issue thus formed the demurrer was sustained. The defendant then filed a sworn statement denying, in a general way, that he had concealed or disposed of his property with intent to defraud his creditors, or that he had unjustly withheld his property from them. The case was tried before the justice without a jury, and, the defendant being found guilty of the charges made in the affidavit, his imprisonment, in pursuance of the statute, was ordered and determined by the court.
“An appeal was taken from this determination to the circuit court, under the jmovisions of section 87G0, How. Stat. In the circuit court, counsel for the defendant claimed the right to have the issue on his plea to the jurisdiction of the justice reheard, and a determination thereon. The court allowed such rehearing, and determined that the plea was sufficient, and raised an issue of fact that defendant had a right to try, and that the demurrer should have been overruled. The case was thereupon, and without further proceedings, dismissed, and judgment was entered for defendant/'’
Counsel for plaintiffs claim that this action was erroneous, and that the judgment should be reversed. It is claimed that the plea in abatement is uncertain and insufficient, and demurrable, for various reasons. The plea, after the entitling in the court and cause, reads as follows:
“And the said Lundy F. Mikesell comes into court and prays judgment of the warrant in this cause, and that the same may be quashed, and says that the said justice of the peace of, the said county of Eaton here has no jurisdiction of said cause, and ought not to take cognizance of the fraudulent disposal of this property by the said Lundy E. Mikesell, charged in the above complaint and warrant specified.
“ Lundy F. Mikesell says that Parm S. DeGraff is an interested party to this suit; that he is an attorney for Albert A. Sprague, Otho S. A. Sprague, and Ezra J.*49 Warner, plaintiffs in a replevin suit now pending in the circuit court for the county of Eaton against Henry S. Hare and Alfred Hare, defendants, which involves the title of the said property complained of being fraudulently concealed, assigned, and disposed of by the said Lundy E. Mikesell with intent to defraud his creditors, and this the said Lundy E. Mikesell is ready to verify.
“Wherefore, inasmuch as the said Parm S. DeGraff is interested in the result of this suit, and that the said Lundy E. Mikesell cannot get justice in this court, he prays judgment of said cause, and that the same may be quashed.”
This plea was verified as follows:
“State or Michigan, ) “County of Eaton, j SS‘
“Lundy E. Mikesell, defendant in this cause, being duly sworn, says that the plea hereto annexed is true in substance and in matter of fact.
“Lundy E. Mikesell.
“Subscribed and sworn to before me this 26th day of December, A. D. 1888.
“ Osman Chappell,
“Notary Public.”
How. Stat. § 6822, provides that—
“ No justice shall take cognizance of any cause, or do any judicial act, when he shall * * * have been of counsel, or shall be directly or indirectly interested in such cause or matter, unless the parties interested in such cause, or their agents or attorneys, shall, with full knowledge of such disability, expressly consent that such justice may take cognizance of such cause or do such act.”
The plea is specific in its statement that the justice is an interested party, and also in its statement that he is the attorney of the plaintiffs named in a replevin suit now pending, which involves the title to the property which it is alleged the defendant had fraudulently concealed, assigned, and disposed of. By the demurrer these facts were admitted, and under the provisions of this statute the justice was disqualified to act, and was ousted of his jurisdiction.
It is said that, the defendant having pleaded to the complaint and warrant after his plea in abatement was overruled, waived his first plea. This is not so. When the plaintiffs demurred they admitted the facts stated in the plea. These facts show that the justice had no jurisdiction to try and determine -the offense, on the ground that he was an interested party, and also that he was acting as attorney for the parties who were contesting the title to the goods in controversy. Even if the justice might thereafter acquire jurisdiction of the matter, it could only be done by the express consent of the parties. The plea of not guilty, or the filing of an affidavit denying the fraud, cannot be construed as an assent that the justice may proceed and try and determine the cause.
After conviction before the justice the whole proceeding was removed to the circuit court by appeal. Section 8760, How. Stat., provides for such appeal.
This section gives to the circuit court full jurisdiction on appeal from actions for the punishment of fraudulent debtors, the same as that possessed by the officer before whom the proceeding was commenced.
Concurrence Opinion
I concur in the affirmance of this judgment, but I do so on the ground that the affidavit of •arrest was not sufficient. I do not think that the justice is shown to have been disqualified by interest. The plea in abatement is not sufficiently certain.