*1 City 1962] Judge. 487 Holland Clk. Ottawa v. questions of the material of fact and of law in view the controversy. statutory remedy by way The of quo of in is, course, warranto * available such sit adequate following pro uation, election, an and is rights parties of concerned. tect Such conclusion is the decision in accord the recent case of Rapids Judge Superior City Grand Clerk v. 366Mich 335. directing setting The order October 31,1962, injunction temporary aside is- controversy sued. view of the nature of the questions therein involved no costs are allowed. M. Dethmers, Kelly, Souris, Otis Smith, Adams, JJ., concurred with Carr, C. JJ.,

Black and Kavanagh, concurred result. * seq. (Stat et See CL 638.1 Ann 27.2315 et seq.). § § —Re- porter.

TALOSI TURY. Pleading—Motion op Limitation Actions — 1. to Dismiss. defense the statute of limitations raised as well motion to dismiss made advance of trial as in (Court the defendant’s answer Rule No 3 [1945]). § ^[8] [2, [3] [4] [5] [6] ^[1] 5 Am Jur 41 Am 34 Am Am34 41 Am Am Jur Am Jur, Jur, Jur, Jur, Pleading Jur, Pleading 2d, Appeal References Malicious Prosecution Malicious Prosecution Limitation Malicious Prosecution and Error 107. Actions Points §§ § 876-879. 115. 423. Headnotes et seq. Reports. -Pleading of Action. —Count—Cause single A a declaration can cover but 1 cause of action. Appeal -Pleading—Mali- Reviewable — Questions Error — *2 Battery -Prosecution —Assault and —Statute of Limita- cious tions.' plaintiff’s the 1 Whether or not declaration entitled him to'go jury on his causes of action for malicious ' battery .iproseeution.and.for determined, need be whore the statute of interposed by way limitations had been ; ;-of.motion to dismiss and the statute run had as to the assault battery charge :and before the action had been commenced n {CLS1956, 609.13). Battery and 4. Malicious Prosecution —Assault —Malice. battery allegation prosecution of assault and a malicious pertinent bearing ques- case well be considered as ' tion of malice. Battery 5. and —Motion Same —Assault Dismiss —Statute of -, Limitations.. n fij-lieinterposition'of defense’of statute of limitations action may. prosecution plaintiff wherein also haye,.qrged fqr.maiieious ( extended; separate án1assault and as cause of action of defendant the benefit the statute of limitations to the urged assault if such were the and as cause 609.13). (CLS 1956, of action Pleading Affirmative__Defends—Compliance Court Rules. compliance should not be held to a strict with court A defendant respecting pleading defenses, rule of affirmative where the disregarded requirements plaintiff has rule good pleading relative to 'different counts' and of (Court 19, 3; 23, [1945]). Rule No Battery of Limitations —MAlióí'o'us' and —Statute Assault"- n ProSécu'íion. . ' court, on defendants’ oral-motion "It'ivas for the trial not'error trial, a verdict as to claimed cause or direct -to dismiss ift- battery, where such eause'of action" assault —of action-for reasonably by separately pleaded, was considered not been had aggravation attorney -been of count for to have defendants’ limitations, which had prosecution, and statute of. dismis.s, way clearly run of motion to interposed been 609.13).- 1956, (CLS .as to the of. Tury. Talosx ’ Prosecution —Probable 8. Malicious Cause —Malice-—Evidence. attorney, Testimony prosecuting of assistant who had conducted assaulting prosecution defendant husband and convictions, disposition relative to ultimate whereby secured upon upon appeal, remand for new trial denial leave to prosecution had been dismissed after had made resti- tution to husband and had proba- served months’ tion, held, have been admitted action for mali- prosecution bearing upon cious the issues of malice, should informed as to the facts involved attending the ultimate dismissal the criminal action against plaintiff, being plaintiff’s essential case that termination the criminal be favorable to him. Appeal Wayne; (Thomas Murphy J.), . (Docket Submitted June No. 44, Calendar 49,441.) No. Decided December by George Tury Case Louis Margaret Tury for malicious and assault *3 battery. and Directed verdict for defendant Mar- garet Tury prosecution charge on malicious and for battery both dict charge. defendants on assault and Ver- Tury for prosecu- defendant Louis on malicious charge. Judgment tion for defendants. Plaintiff appeals. Affirmed. (Meyer J.

J. Stoorman counsel), Weisenfeld, plaintiff. Paul P. Robert Colombo, Colombo and J. for de- fendants. Plaintiff filed a 1-count declaration.

Dethmers, an Later he filed it amendment, but remained a 1- plaintiff alleged In it count declaration still. that maliciously prose- defendants, wife, husband and charge him criminal cuted assault on a committed an person. on Long in of trial advance defendants filed motion grounds,'inter action the to dismiss the that alia, Reports. the statute limitations * had run it. In against that motion defendants referred to plaintiff’s action as one for prosecution. malicious Being doubt as to whether the statute to run from started the institution of the criminal or termina proceedings tion thereof in a manner favorable to the plaintiff, trial court denied the motion.

At trial the court directed verdict favor of wife on the malicious charge «defendant there no evidence that 'for the reason she do with in- signing complaint had anything In so prosecution. stating jurors, stituting them that the assault told stood as to the wife as well as hus- still attorney consideration. for de- jury band then to the court that he fendants stated had been that he was all thinking along defending case, but that it now dawned upon him, jury, what the court that plaintiff after said theory the court were that this proceeding battery. case for for assault and damages was also he orally moved assault and Accordingly, battery case be dismissed as both defendants be- of limitations run it. against statute battery, to an there was no As n question concerning when plaintiff was it claiming bad occurred. The statute run bad before n suit the court consequence, commenced. and either dismissed favor the motion granted the assault and bat- respect both defendants a verdict to that effect. The or directed tery charge, that all that remained advised the then «court *4 the malicious for its consideration husband. On «charge of no cause course, in returned verdict due jury, .action. * 27.605) (Stat Supp Ann Cum .— 1956, 609.13 1959 CLS See

Bepor'I’er. 491 v. Tuey. new trial. It filed motion for Plaintiff appeals motion here denial denied. He judgment for action. of no cause says granting that the court erred de- Plaintiff during trial oral motion stat- fendants’ ute based respect to of limitations with the assault and an affirma- had not been raised as because any pleading trial. tive defense before For this Michigan (1945), Rule, No 3 23, he cites Court provides that the affirmative defense of the plainly of limitations must be set forth in statute defendant’s answer. challenge He not does state- Honig- this ment man’s the notes under rule contained (p 210), Court Rules Annotated approve, statement which we that the defense urged as well motion to dismiss in advance of trial in the made defendant’s answer. court rules, however, us, Consideration also, leads (1945), take Rule 19, note of Court 3 which reads: “The different counts a declaration shall be

designated consecutively.” such numbered subject, Williams, On this Mich in Ives v. 53 single said that a can cover but Hughes cause of action. To the same effect is v. Doug- 288 Mich Michoff, are aware that in We Marsh, las Mich it is that it is not said necessarily duplicitous count, in 1 to have theories it was but termed better to have them in separate counts. go entitled the count

Whether alleged not of action or need causes is a case. Here 1-count declara- be determined says him caused for defendants tion which counsel to defend on called on he was believe of the with the occurrence way only by added *5 Michigan Reports. aggravation explanation of defendants’ actions instituting proceeding. and motives the criminal allegation a malicious prosecution case well could have been considered pertinent question bearing on of malice. A reading of the declaration the- leads to conclusion sup- that defense counsel was well warranted in so By posing. motion dismiss which defendants plaintiff apprised they did file, was were claim- ing the benefit the statute. The motion’s refer- prosecution angle ence to the malicious could not have led tent to-waive that to believe that defendants were con- battery, as to benefit being-urged separate if that was as a cause of action. resulting Demonstrated is confusion plead plaintiff’s failure to causes of ac- he so, tion in Had done counts. defendants necessity have been alerted would the They to both. statute as should be held to- compliance (1945),. §23, strict with Court Rule No plaintiff’s disregard in the face of Court Rule No requirements (1945), plead- good §3 and the ' ing. granting The court did not err in defendants’ trial, motion, oral made at dismiss direct a ver- dict.

Prejudicial error also in that is claimed the trial permitted prosecuting attorney an assistant testify concerning for and reasons circum- stances under he moved for and obtained appears of the criminal case. dismissal It that the charge against plaintiff criminal case involved battery against herein of assault and band defendant hus- case; convicted, was ob- again again tained new convicted, he trial, moved for new trial denied, which was he made de- layed application appeal for leave to therefrom to appeal-was and leave to denied but case was- then frial dis- new remanded Tuey. prosecuting attor the assistant motion of missed complied plaintiff had ney. meanwhile, imposed making to de restitution the sentence probation. serving 6 months’ husband fendant *6 prosecutor testified that the action óf assistant The this Court appeal remanding denying but leave to He further testified new trial was unusual. if it make the that, would had informed this Court he disposition appeal application leave to he would move to dis made, was thereafter which miss is who therein, the case below because already completed his sentence here, .expense ought not to burdened with further and of ment to be tion case favorably be appeal ele and trial. Inasmuch an essential prosecu

proved plaintiff in a malicious n is the termination of criminal case: (see Mining Iron to him Turbessi v. Oliver [69 Co., cited), ALR 1059], 250 Mich 110 and cases therein was'eminently proper for the in the to the prosecution case to informed malicious facts involved and

attending the ultimate dismissal Certainty of the criminal case him. questions bore whether defendant had had malicious motives, both of are also essential elements of the case for prove. occurred connecti n. error o Affirmed. Costs to defendants. Kelly J.,C. JJ., Otis M. Caer, Smith; !

concurred with J. Dethmers, (concurring). I concur in Mr. Justice Souris, opinion except portion which re Dethmers’ battery charge.” lates to the so-called “assault pleads only Plaintiff’s 1-count declaration prosecution. named, count for malicious However judge’s jury’s'cónsid- the trial elimination from the Michigan Reports. eration of the assault and battery issue was not error.

Black, Kavanagh, Adams, JJ., concurred with Souris, J.

PEOPLE WILLIAMS. Building. and Phrases — 1. Words building, sense, in its broadest term means an in- ereetion occupation as for use and a habitation or tended for some manufacture, trade, purpose use, ornament or constituting house, edifice, store, church, such as fabric or a shed. Larceny Building—Tire at Rack Gasoline Service Station. long, high, wide, 15'1" Structure TV' and 33" constructed of metal, land, cement, attached to the bolted entirely- down to closed, shed, having overlapping a covered doors with a steel coming through bar padlock down the outside door and a *7 through rod, storage attached the steel used for the and dis- play tires, having capacity tires, of 100 located 38 gasoline main building feet from service station on the same held, premises building meaning making within of statute felony larceny by it a stealing any eommit “the crime of * * * * * * gasoline any building” service station (CL 1948, 750.360). Searches Seizures —Arrest—Probable Cause. by police Information obtained officer 3:30 a.m. at relative to tires found in trunk of defendants’ ear and circumstances of held, discovery give sufficient to rise to for belief a crime had been committed defendants and warranted their arrest and search of them and their car. Motion, Suppress Testimony 4. Same — at Trial. The consideration of the -information had been obtained [4, ^[3] [2, ^[6] ^[1] 7] 47 Am 9 Am 20 Am Am Am Jur, Jur, Jur, Jur, Jur, References Buildings Evidence Searches and Larceny Evidence 396. for Points Seizures §§ in Headnotes 18-20.