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82 Mich. 648

Jacklin v. Soutier

Michigan Supreme Court

Decided October 31, 1890

Michigan Supreme Court · decided 1890-10-31

<p>Justice's court — Pleading—Trespass—Affidavit—Waiver of defects.</p> <p>1. Plaintiff made an affidavit before a justice of the peace, in which he stated that he had a good and just cause of action against the defendant, “against whom he applies for process by warrant, for wrongfully trespassing upon the close of the affiant [describing it by metes and bounds], by entering upon the aforesaid land, and tearing down the fence situate upon said land belonging to affiant, greatly damaging this affiant by leaving his said land open to the commons, and letting this, the affiant’s, cattle, sheep, and hogs out of said close.” The justice issued a warrant commanding the arrest of the defendant to answer to the plaintiff in a plea of trespass, who was accordingly arrested and brought before the justice. The plaintiff filed a declaration substantially following the affidavit, to which defendant pleaded the general issue, and on his application the case was adjourned. On the adjourned day the defendant appeared with his attorney, who, after looking over the papers, stated that the “plea was all right,” and demanded a jury trial. After the jury and a witness were sworn, the defendant’s attorney moved to quash the proceedings on the ground of the insufficiency of the affidavit, which motion was overruled, and the trial proceeded, resulting in a verdict for the plaintiff of nominal damages, upon which a judgment was entered, which was reversed in the circuit court on certiorari, which latter judgment is reversed, and one entered for the plaintiff, the Court holding—</p> <p>a — That the motion came too late. If the affidavit was defective the defect was waived by the plea and proceeding to trial without objection.</p> <p>b — No notice of title or other special defense having been given, the justice had jurisdiction of the case.1</p>

Keversed, and judgment entered in this Court for plaintiff · Decided 1890-10-31

Grant, J.

¶1This is an action of trespass originating in justice’s coiirt, in which plaintiff recovered a judgment for six cents. Defendant removed the case to the circuit court by certiorari, where the judgment was reversed, and plaintiff brought it to this Court by writ of error. The suit was commenced by warrant based upon the affidavit of plaintiff. Plaintiff filed the usual declaration in trespass. Defendant pleaded the general issue, and asked for an adjournment, which was granted. Upon the adjourned day defendant was present with his counsel, who, after examining the pleadings, expressed himself as satisfied and ready for trial. A jury was impaneled and sworn. After the taking of testimony had commenced, *650defendant moved to quash all proceedings on the ground that the affidavit was not sufficient to authorize the warrant.

¶2The motion came too late. If the affidavit was defective the defect was waived by the plea and proceeding to trial without objection. No notice of title or other special defense was given, and the justice had jurisdiction of the case.

¶3Judgment reversed, and a judgmeut entered in this Court for plaintiff, with costs of both courts.

Champlin, O. J., Cahill and Long, JJ., concurred. Morse, J., did not sit.
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