222 N.W. 768 | Mich. | 1929
Plaintiff sued defendant in justice's court on all the common counts in assumpsit. Defendant pleaded former adjudication in bar. There was judgment for plaintiff. Defendant appealed to the circuit court, where there was judgment for defendant *352 because of a former adjudication. Plaintiff brings error.
The only question is whether defendant's plea of former adjudication in bar was properly sustained.
Plaintiff, prior to the commencement of this action, brought suit in justice's court against defendant in trespass on the case, alleging defendant obtained from her $500 by false representations, fraud, and deceit. She recovered judgment in that case in justice's court, which was reversed by the circuit court, where a judgment of not guilty was entered, which judgment remains in full force and effect. This prior judgment was held by the trial court to bar the maintenance of plaintiff's action in assumpsit in the case at bar.
Defendant obtained money from plaintiff which he has not repaid. One may not take contradictory positions in asserting a right in court, if the assertion of plaintiff's right in the first case involves a negation of the right as claimed in the second case. Thompson v. Howard,
Judgment reversed, and judgment will be entered for plaintiff, with costs.
NORTH, C.J., and FELLOWS, CLARK, McDONALD, and SHARPE, JJ., concurred. FEAD and WIEST, JJ., concurred in the result.