Field v. Plummer

75 Mich. 437 | Mich. | 1889

Campbell, J.

Defendant was sued on a judgment rendered against him in Illinois as Edward H. Plummer. His defenses noticed were the statute of limitations, and the non-service of process on him. He also on the trial claimed that he was a surety, ánd that many years ago plaintiffs agreed not to enforce the judgment.

On the trial in the circuit there was proof that defendant had been known for various purposes by the name of Edward, and proof that the writ was actually served on him, as well as some proof of his knowledge and recognition of the judgment.

There was no plea or notice of the defense set up as arising out of suretyship, and it could not come in unless pleaded. \Ve need not, therefore, consider that matter.

There can be no question that a man sued by actual service of process, under a name which he is called by and known, may be held upon a judgment under that name, and this judgment was so identified. . There was a direct conflict of testimony whether service was made on him or not, and we cannot disturb the finding of the jury, who were correctly instructed on that point. The defense under the statute of limitations was not made out.

While there are circumstances which might render the long neglect to inforce the judgment suspicious, and perhaps-unjust, we can only deal with it on legal grounds, and find no error in the record.'

The judgment must be affirmed, with costs.

Champlin and Long, JJ., concurred. Sherwood, C. J., and Morse, J., did not sit.