52 Mich. 94 | Mich. | 1883
It is not going far to say that this litigation has been made a pretext for discussions which do not belong to it. The subject may be best sifted and explained by referring — -first, to certain illustrating facts which are not disputed ; and secondly, to the effect due to the pleadings. By such means we may see what were the questions to be tried and what matters were irrelevant and how the points now agitated by the defense ought to be considered.
In August, 1864, the plaintiff resided in the state of Indiana, and then and there intermarried with one Henry Carey. In January, 1871, she instituted proceedings in the court of common pleas of Steuben county, in the same •state, against said Carey for a divorce from the bonds of matrimony. The record of those proceedings is made a part of the bill of exceptions, and it appears therefrom that ■Carey, the husband, appeared and submitted to the jurisdiction. He answered to the merits and joined issue on the allegations of the complaint. It also appears that evidence was taken on the points in issue and that Jerome B. Waldo gave evidence tending to show that the plaintiff had been a resident of Indiana since 1869. At the January term for 1872, as the record further represents, the court considered the cause on the pleadings and evidence and made a final decree upon the merits of law and fact and thereby adjudged a dissolution of the marriage.
July 25, 1872, at Williamston in Ingham county, in this State, she intermarried with the said Jerome B. Waldo and
The defendant Scott Waldo is a son of decedent Jerome B. Waldo, and in April, 1881, he procured letters of administration on his father’s estate from the probate court of Ingham county. Two days later he called at plaintiff’s apartments and asked to be admitted, and he swears that he told her his business was to make an inventory and appraisal of his father’s estate. She refused to admit him and locked the door against him. He then went to one of the appraisers who was a justice of the peace, and in character of administrator procured a writ of replevin against the plaintiff for a couch which he alleged belonged to the estate. The writ was handed to defendant Plotts, who was a constable, and he, together with defendant Waldo and .the justice, who was also appraiser, proceeded with some others to the plaintiff’s rooms and demanded admittance. She refused to let them enter. Hpon this they immediately broke in the door and entered the apartments and seized the goods and furniture there being and carried them away. She then brought this action. It was subsequently discontinued as to defendant Smith, and under the judge’s charge, the defendants Plotts and Williams were acquitted. The defendant Scott Waldo was held for $650. It follows that the sole consideration here is whether the proceedings are open to any valid complaint on his account.
He censures the declaration. It is offered as an argnment that incompatible grounds of action are actually combined. Trespass de bonis, trespass to the person and trover we are told are jumbled together in the same count. There
To this declaration the defendant "Waldo pleaded the general issue and such plea entitled him to give evidence of any matters going to show that he never did the acts complained of. But it authorized no defence which would admit that he was prima facie a trespasser. He could introduce no evidence under it to show a justification, or license or excuse. In order to adduce evidence for either of those purposes a special notice was indispensable. Osburn v. Lovell 36 Mich. 246-250; 2 Saund. Pl. & Ev. 856: Gould’s Pl., ch. 6 §§ 38, 58. Acting on this principle he appended a special notice to his plea, to the effect that as to the breaking and entry and the seizure and conversion of the goods as charged, he would show his appointment as administrator of the estate of Jerome B. Waldo; that the goods in qxiestion belonged to that estate; and that he entered peaceably, as he lawfully might, to take said goods into his possession and have them inventoried. The notice was confined to this matter. The proceedings by replevin were not mentioned, and unless what, he set up was in law sufficient to justify or excuse his entry, he was defenseless on such grounds, and that it was; not sufficient seems obvious. The plaintiff was in peaceable possession and claiming to be the owner, and his appoint
The exclusion of the question to the plaintiff on cross-examination if she did not make a complaint in Indiana against Carey for a divorce in the form shown by the record produced was probably warranted. But if otherwise it worked no prejudice. The record was afterwards introduced.
The inquiry addressed to Waldo whether the plaintiff had not to his knowledge converted certain property of the estate after his father’s death was properly ruled out as immaterial.
The exception on which chief reliance is placed relates to the divorce from Carey. It is claimed, as I gather from the case, that as touching the extent of defendant’s liability for converting the goods in controversy, it was a material question whether the plaintiff was the widow of Jerome B. Waldo, so as to be entitled in that character to the whole or a portion of the converted articles, and that it depended, as to how this was, on the validity of the divorce from Carey, and that this again depended on the state of her residence at the date of the divorce proceedings. On this foundation it is contended that it was competent to go into that question in this action and submit original evidence, and require
¥e must intend that the court in Indiana had jurisdiction of the subject of divorce ; that the parties submitted to have their case there heard and on the merits and that the mode of proceeding was in accordance with the laws of the state. And it is a necessary implication that the court, on the suit being brought in it, had the power to ascertain and decide whether it was rightly brought there. ^ And the further implication is here equally imperative that such court did consider that question and did decide in favor of the jurisdiction. It heard the altercations and considered the evidence. It investigated and decided oh the merits. "Whether the plaintiff was a resident of Indiana was one of •the matters to be settled on the law and evidence, and the judgment necessarily imports that the court decided on it ■and determined that she was a resident. It may have erred .and there may have been false testimony, but neither of .these, if admitted, would cause the judgment to be ipso facto void. This State has never complained of that judgment, and neither party has objected to it. The defendant’s intestate affirmed it in the strongest manner. The attempt to impeach it is by circuity and indirection, and in a civil •case professedly in the interest of the estate of the very person on whose testimony it was substantially if not wholly based and who subsequently became a party to the marriage thus attacked as illegal.
The position taken is that it was competent in this private iand collateral action to submit original evidence in regard to the plaintiff’s residence during the suit for divorce and get a new finding on it and in case of its being repugnant to the ruling which the first tribunal, in adjudicating on the ■evidence before it, was led to make on the same point, to thereupon claim and insist that such opposite determina
There are matters in the charge in which T should not be willing to concur, but they’ are in favor of the defense.
I find no rulings of which defendant Waldo is entitled to complain and
The judgment should be affirmed with costs.