28 Mich. 47 | Mich. | 1873
In an action of trespass for assault and battery, brought in justice’s court, and resulting in a verdict for the plaintiff of five dollars, the defendant appealed to. the circuit court, where, by consent, the parties amended their pleadings. In amending the declaration, the plaintiff increased the ad damnum to a sum beyond the- jurisdiction of a justice; . but no objection was made to this, and a trial was had by jury upon an issue of fact, and a verdict rendered for the plaintiff of ten dollars. Thereupon the court rendered judgment for the plaintiff for the damages found, and also for full costs, against not only the defendant, but also against bis sureties on the appeal.
On error, several objections are made to this judgment. First, it is insisted that after an amendment had been made to the declaration, increasing the sum demanded to
The first case referred to is Palmer v. Wylie, 19 Johns., 276, where under a statute which provided that the court of common pleas, after it had possessed itself of a cause by appeal from a justice, should “proceed and give judgment as the very right of the case shall appear, without regard to the previous trial had thereon,” the supreme court of New York held that the common pleas might render a judgment exceeding the justice’s jurisdiction. The case is not reasoned, the court simply remarking that the statute “dispenses with all matter of form, and every thing inconsistent with the mere justice of the case between the parties.” This case was followed in Jackson v. Covert, 5 Wend., 139, in an opinion equally concise, the court contenting itself with saying that “the plaintiff below, it is true, would not have recovered more than fifty dollars had the defendant submitted to the justice’s judgment; but when he appealed to the common pleas, that court was not limited in jurisdiction, and the plaintiffs were entitled to recover all the damages they could prove, if they were entitled to recover any thing.”
We do not find these cases applicable to our statute. We have no corresponding provision to that referred to in the case in Johnson, and which the court understood to authorize the common pleas to proceed in the case precisely as though it were a new one in that court. The ease of Dressler v. Davis, 12 Wis., 58, arises .under a statute
The plaintiff in error, James Evers, was sole defendant in the court below, and he emulated with the plaintiff that “either party may amend the pleadings therein as they may desire,” and he made no objection to the amended declaration which claimed the increased damages, but pleaded to the merits, and after verdict against him, for the first time, in order to limit the recovery of costs, insisted that the case ceased to be a case on appeal when the amendment was made. These facts render the present case peculiar and exceptional, and we are of opinion that when the defendant pleaded to the amended declaration, which on its face purported to be amended in pursuance of his stipulation, as it was in fact, he precluded himself from insisting afterwards that it was not an amendment in the appeal case, but the
In Wells v. Scott, 4 Mich., 347, a plaintiff claimed in justice’s court a sum beyond its jurisdiction. The defendant took no objection on that ground, and the plaintiff recovered judgment. The defendant appealed to the circuit court, where a second trial on the merits was had, and the plaintiff again had judgment. On error to this court the objection for the first time was taken, that the justice had no jurisdiction of the case. The court held that the objection came too late, and that the party, by going to trial in the circuit court upon the merits, without raising any objection to prior proceedings, must be regarded as having vvaived any errors he might otherwise have taken advantage of. This case was approved and followed in Tower v. Lamb, 6 Mich., 362. In both cases there Avas a recovery beyond the jurisdiction of the justice, and the proceedings before the justice Avere void for Avant of jurisdiction. The defendants in each case treated them as valid, and appealed them to a higher court where the jurisdiction was ample, and where, consequently, it was competent to Avaive the defect which existed below. In this case there Avas no defect below, and if it is competent for a defendant on appeal to waive such a defect by a mere failure to bring it to the notice of the court, still more clearly must it be competent for him by his express assent to Avaiv^e that which only becomes a defect at all by relation back to the case as it stood before appeal taken. He has consented in an appellate court, to havrn the case put in this shape, and as the jurisdiction of that court is unlimited, his objection that the case is no longer the same is purely technical, and should not be allowed under the circumstances.
The remaining question relates to the costs which wrere awarded below. The statute (Comp. L., § 7388) provides that in certain actions, among which is that for assault and battery, the plaintiff shall recover no more costs than damages. The court awarded full costs, amounting to $238 16f though the recovery of damages was ten dollars only. We are of opinion that the section of the statute referred to has no application to a case tried on appeal. The statute relating to appeals provides that “In all cases heard and determined on appeal, the costs, or such part thereof as to the court shall seem just, may be awarded to either party, as the court may deem just and right between the parties; in view of the particular circumstances of each case.”— Comp. L., § 5459. We think this'means all the costs, and not merely such portion thereof as does not exceed the damages found. The policy of the law is to give the circuit courts a large discretion as to costs in cases of appeals, and one purpose had in view is the discouragement of vexations appeals. That purpose would be defeated, if in cases
There is nothing in the objection of the defendant in error, that the judgment as to the sureties should have been removed to this court by certiorari, instead of by writ of error. A joint judgment was taken against them and their principal, and the mode adopted to review it was the only one applicable to the case.