50 Mich. 315 | Mich. | 1883
This suit is brought upon a justice’s judgment against Peter Nickodemus and Helene Nickodemus, who are, and were when the judgment was rendered, husband and wife. Helene Nickodemus alone defends, and the sole question made in the case is whether the judgment was valid as to her.
The proof of the judgment consisted in the justice’s docket. The docket recited the commencement of suit by summons; the return of the summons personally served on both defendants; the appearance of both in the case; two adjournments of. the case by consent of defendants without pleadings; declaration by the plaintiff on the second adjourned day “ orally in assumpsit on the common counts and specially in writing;” oral plea of the general issue and a further adjournmenton the defendants’ application; and still another on the plaintiff’s application; and finally, the defendants failing to appear on the day to which the cause was last adjourned, an ex parte trial and judgment for the plaintiff. On the trial certain deeds of land appear to have been given in evidence, but for what purpose does not appear. The files of the justice were not put in evidence, and we have no knowledge what the plaintiff declared upon specially in writing.
The circuit judge held that it did not appear affirmatively that the justice had jurisdiction of the case, but he certainly had jurisdiction of an action of assumpsit, and of a case upon the common counts. We cannot assume, in the absence of all proof, that the plaintiff added to his oral declaration a count upon a cause of action which the justice could not try, or, even if he had done so, that the case was tried and judgment rendered upon the bad count instead of upon those which were good. The parties having been regularly brought into court, no presumption can be induged that the justice lost jurisdiction by any misstep afterwards. It is suggested that the introduction of the deeds in evidence showed that he was assuming to take cognizance of a dis
The judgment will be reversed with costs and a new trial ordered.