George W. Hopkins & Son v. Green

53 N.W. 537, 93 Mich. 394, 1892 Mich. LEXIS 1001

Opinion

Grant, J.

Action of replevin in justice’s court. Judgment for plaintiffs for two dollars damages. Case taken to the circuit court by certiorari, where the judgment was reversed, and judgment entered for defendant for costs and an attorney fee of $15.

Defendant appeared specially in justice’s court, and moved to quash the proceedings, for the reason that no bond had been filed as required by law. The suit was commenced in the name of George W. Hopkins & Son as plaintiffs. The name of the son was not given either 'in the affidavit, Avrit, bond, or declaration. The' bond Avas executed by George W. Hopkins & Son as principals, and George W. Hopkins as surety. The justice returned that “plaintiffs, through their attorney, offered to amend or give a new bond; but the said attorney [for defendant] refused to accept the amendment, claiming it was no bond, and could not be amended.” Thereupon the justice overruled the motion to quash, and the defendant Avithdrew from the case.

The bond Avas irregular, but it might have been amended or a new bond filed. How. Stat. §§ 6856, 7631. The statute requires security additional to the pecuniary responsibility of the plaintiffs. One of several copartners, plaintiffs, is no additional security.

Defendant was under no obligation to accept an amended bond, or a neAV bond; nor did he waive any rights by refusing his consent thereto, and by insisting that the bond could not be amended. The justice should have directed either an amendment or a new bond, and given the plaintiffs reasonable time to furnish it, and, on their failing to -do this, he should have quashed the proceedings.

One other objection to the jurisdiction of the court was raised by certiorari, but, inasmuch as it was not made in the justice's court, it cannot now be considered. Wilcox v. Railroad Co., 45 Mich. 280.

Judgment affirmed.

The other Justices concurred.