Adams & Ford Co. v. Cullen

124 N.W. 549, 159 Mich. 669, 1910 Mich. LEXIS 713

Opinion

Hooker, J.

Plaintiff, a nonresident corporation, sued defendant in assumpsit in justice’s court. Defendant appeared specially upon the return day, and moved to dismiss the cause for the neglect of plaintiff to file security for costs. This motion was overruled, whereupon plaintiff’s counsel offered to become security. The defendant objected to this, upon the sole ground that the statute prohibited such action, and the justice so held. Thereupon, without a showing on oath, plaintiff moved an adjournment of the cause for the purpose of obtaining a surety, and this motion was granted against defendant’s objection. On such adjourned day defendant did not appear,, and plaintiff took judgment. The judgment was affirmed on certiorari by the circuit court, and it is before this court by writ of error.

We are constrained to reverse the judgment upon the ground that the justice lost jurisdiction by his adjournment of the cause without a showing on oath that it was necessary. A justice’s power to adjourn a cause against objection rests upon the statute, which requires a showing on oath. See Stadler v. Moors, 9 Mich. 267; Warner v. Comstock, 55 Mich. 618 (22 N. W. 64). It has been held that an unauthorized adjournment ousts the justice of jurisdiction. Stadler v. Moors, supra; Ruberts v. Hathaway, 42 Mich. 502 (4 N. W. 307); Segar v. Lumber Co., 81 Mich. 344 (45 N. W. 982).

Judgment reversed, with costs of all courts.

Moore,, McAlvay, Blair, and Stone, JJ., concurred.