Storey v. Child

2 Mich. 107 | Mich. | 1851

Pratt, J.

By the Revised Statutes of 1846, (p. 463, sec. 4,) written notice of trial of issues of fact in the Circuit Court is required; and by another provision (p. 516, sec. 2*7) in actions of replevin, either party may give notice of trial, but if neither party give such notice, the defendant may move for judgment, as in case of non-suit Neither of these provisions of the statute are repealed by anything contained in the subsequent act, entitled “ an act to regulate and define the jurisdiction of the Circuit and County Courts,” approved April 3, 1848, or by anything contained in the act supplementary thereto. If, therefore, the cause had not been noticed for trial by either party, the defendant was authorized, .under the statute, to move the Court for judgment. But in what manner should the motion for such a judgment have been made ? It was a special motion, founded on the alleged fact, that the cause had not been noticed for trial; this fact could not be presumed by the Com-t; nor- could the Court take judicial notice of its existence, without evidence, as it did not appear on the face of the proceedings. If any part of the ground of a motion, consists of an extrinsic fact, not apparent on the face of the proceedings, there must be an affidavit or other competent evidence of its existence. (3 Chitty Gen'l Practice, 537.) This is a well settled rule of practice. The alleged fact, of the cause not having been noticed, was an extrinsic fact, and without evidence of its existence, the motion for judgment, could not have been grunted. By the English rule, whenever the plaintiff has neglected to try his cause, according to the course of practice established, the defendant is at liberty to move for judgment, as in case of non-suit; this rule, in the first instance, by the English practice, is a rule nisi; yet it must be founded on an affidavit, showing affirmatively the state of the proceedings, and the plaintiff’s default. (2 Tidds Pr., 825.) But rules regulating our Circuit Com-t practice, have been established pursuant to statute, and while in force should be observed and enforced by Courts. The clerk is required by rule, to provide a book to be denominated, “The Special Motion Booh" in which attorneys are required to enter all special motions, to be made to the Court. {Rule 64.) And in ail cases of special motions, except motions for continuance, affidavits or other papera, on which they ' are founded, are to be filed at the time of entering the motion, and copies thereof served on the attorney of the opposite party. [Rule 24.) Notwithstanding these salutary rules, this special motion was not even entered in the Special Motion Book; .nor was there any evidence adduced in support of the alleged fact upon which it was predicated, by affidavit or otherwise. The motion, therefore, was erroneously granted.

The opinion of this Court is, that the motion should be sustained, and that the -assessment and judgment, as in case of non-suit, should, be set aside.

Certified accordingly.