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fendant's nonresidence, was received by the justice by registered mail, April 23d, one day before the return day. On the return day, the justice rendered judgment in favor of plaintiff, and, the case having been removed to the circuit court by writ of certiorari, that court affirmed the judgment of the justice. Defendant asks a reversal of the judgment upon the ground that the summons, being a long summons, was void, gave the justice no jurisdiction, and his motion to quash should have been granted.
The original return of the justice contains, among other things, the following:
"And I do also certify that at the time and place above specified for the return of said summons, the said party, Murie Nelson, appeared, the defendant did not appear, said plaintiff declared against the defendant as follows: Plaintiff declares orally on all common counts, and especially on two promissory notes herewith filed with the court, and claims damages in the sum of two hundred dollars. And thereupon I proceeded to try the said cause. On the trial of said cause, Murie Nelson, a witness, sworn on the part of the plaintiff, and thereupon plaintiff rested his cause. After hearing the proofs and allegations of the plaintiff, I, the said justice, did forthwith render judgment in favor of the plaintiff, and against the defendant, for one hundred eighty-seven dollars damages, and two dollars and twenty-five cents costs, and, in further answer to the facts set forth in the copy of the affidavit on which the said writ of certiorari was allowed, I do further certify and return to the first allegation of error. I return that I issued a long summons in this cause at the request of the plaintiff. The second allegation of error I return I proceeded in the cause at the request of the plaintiff; he knowing that the summons was a long summons and that the defendant was a nonresident. To the third, fourth, and ninth allegations of error I return that I received the special appearance and motion of the defendant by registered mail to dismiss the cause and showed the same to the plaintiff, but I was unable to determine whether the defendant could appear otherwise than in person or by attorney. I therefore filed the special appearance in the cause, and did not enter same on docket or rule on it, and leave it to the honorable circuit court to say whether it
was an error or not. I knew and the plaintiff knew that the defendant was a nonresident of the county."
On September 22, 1909, and after the cause had been submitted, the justice made a further return as follows:
"The attorney for defendant has asked me for amended returns in the above cause. I, Merton Hunt, the justice referred to in the above cause, do further certify and return to the writ of certiorari in this cause, that the notice for the writ of said certiorari was served on me within the five days, the suit was tried on the 24th day of April, 1909, and the writ was served on me the 27th day of April, 1909. In my return, I said the plaintiff knew and I knew that the defendant was a nonresident of Mecosta county, which was a mistake. I don't know what the plaintiff knew in the matter, and there was no evidence to show that the defendant was a nonresident of Mecosta county. "Given under my hand the 22d day of Sept., 1909. "MERTON HUNT, "Justice of the Peace."
No order was made by the circuit judge for a further return, nor was any application made to him for that purpose.
We agree with the plaintiff's counsel that we cannot consider the amended return. The cause was submitted to the court and taken under advisement September 7th, and the amended return was not filed until September 24th, and, so far as this record discloses, was not considered by the court. If defendant desired a further return, he should have applied to the court for an order. Marquette, etc., Rolling Mill Co. v. Morgan, 41 Mich. 296 (1 N. W. 1045); Monroe v. Reynells, 131 Mich. 259 (90 N. W. 1065); Bernstein v. Thayer, 157 Mich. 625 (122 N. W. 365).
It is further objected by plaintiff that without the amended return it does not appear that the notice of intention to remove the cause by writ of certiorari was served on the justice within the required five days. It does not appear that the plaintiff raised this question by motion to dismiss or otherwise, in which event the court
doubtless would have ordered a further return. Monroe v. Reynells, supra.
We are of the opinion that the court erred in affirming the judgment. The filing of the written motion and affidavit of nonresidence was a special appearance. Wagner v. Kellogg, 92 Mich. 616 (52 N. W. 1017). The practice pursued was the proper practice to raise the question. Appleman v. Hahn, 149 Mich. 245 (112 N. W. 917); Waring v. McKinley, 62 Barb. (N. Y.) 612. The justice's return is inconsistent with the claim that plaintiff's testimony may have contradicted the defendant's showing by affidavit. The facts shown by the return entitled defendant to an order granting his motion.
The judgment is reversed and the proceedings quashed, but without prejudice to the right of the plaintiff to bring another suit.
OSTRANDER, C. J., and BIRD, HOOKER, and STONE, JJ., concurred.
DES CHAMPLAIN v. DES CHAMPLAIN.
DIVORCE ALIMONY-PRO CONFESSO DECREE - APPEAL - REHEARING.
On appeal from the amount of alimony awarded by a pro confesso decree of divorce, which gave the wife substantially all of defendant's property, and which might have been affected by statements of counsel on the hearing to the effect that defendant was willing that complainant should have the property, the cause is remanded for rehearing as to the amount.
Appeal from Delta; Stone, J. Submitted January 6, 1911. (Docket No. 32.) Decided February 1, 1911.
Bill by Philomene Des Champlain against Odelin Des Champlain for divorce. From a decree pro confesso awarding complainant alimony, defendant appeals. Remanded for rehearing as to amount of alimony.
John Power, for complainant.
A. H. Ryall, for defendant.
BLAIR, J. This is an appeal from a pro confesso decree of divorce; a petition for rehearing having been denied by the circuit judge. The only point made in this court is that the award of alimony was excessive.
It appears from the record that the home and household furniture awarded to complainant comprise substantially all of the property of defendant, and that the circuit judge may have been influenced in making the award by statements of counsel, doubtless made in perfect good faith, that the officer who served the subpoena reported to him that "if she wanted to get his house she was welcome to it." We deem this to be a proper case to apply the practice adopted in Ferguson v. Ferguson, 145 Mich. 290 (108 N. W. 682).
The decree is affirmed, except as to the award of alimony, and the case is remanded for a rehearing upon that subject, with costs to complainant.
OSTRANDER, C. J., and BIRD, HOOKER, and BROOKE, JJ., concurred.
FLYNN v. BOGLARSKY.
1. LIBEL ANd Slander-JUDICIAL PROCEEDINGS-JUSTICES OF THE
Pertinent statements contained in a petition addressed to an examining magistrate, charged with the duty of investigating the acts complained of, are privileged.
And a petition charging plaintiff and his wife with disorderly conduct and with disturbing the peace of defendants' neighborhood, presents matter cognizable by a justice of the peace.
But the privileged character of the writing may be lost by excessive publication, or by general circulation among the people of a community.
Privilege does not extend to false publications made to persons who have no interest in the subject-matter.
A petition to be presented to the justice, charging plaintiff and his wife with disorderly conduct, and with being disturbers of the peace and a nuisance to the neighborhood, was of a libelous nature, since it tended to hold plaintiff up to contempt and ridicule of the community.
It should have been left to the jury to determine whether or not defendants gave to the paper unnecessary notoriety by its circulation about the neighborhood and publication in the daily press, and also whether or not the defendants were acting maliciously.
Error to Wayne; Donovan, J. Submitted January 6, 1911. (Docket No. 34.) Decided February 1, 1911.
Case by William Flynn against George Boglarsky, Bruno Marschall, Adam Moeller, Joseph Reck, John P. Vollrath, and John C. Hacker, for libel. A judgment for defendants on a verdict directed by the court is reviewed by plaintiff on writ of error. Reversed.