Nichols v. Circuit Judge

1 McGrath 592

• Court: Michigan Supreme Court
• Decided: May 6, 1891
• Docket: No. 11911
• Status: Published

Opinion

To compel respondent to award costs to defendants in an action of trespass on the case, 'brought by Caroline Heed for the removal of a blacksmith shop.

Denied May 6, 1891, with costs.

Plaintiff was the owner of the land upon which the shop stood, subject to a lease to one S., for use as a site for a blacksmith shop. S. assigned to G. and G. agreed to sell to K..,, the husband of plaintiff, who assigned to plaintiff. G. assigned to defendants, who removed the shop. Under the agreement between G. and H. the former was to retain title to the shop until the same was paid for. The court found that defendants had the right to take the shop; that its value was $200; that the amount due defendants was $188.90, and gave plaintiff judgment for $11.10, with costs to be taxed.

Relator insisted (1) that under the rule laid down in Strong vs. Daniels, 3 M., 466; Inkster vs. Carver, 16 M., 488; Stortz vs. Circuit Judge, 38 M., 243 (589); Dikeman vs. Harrison, 38 M., 617, the plaintiff having recovered a sum within the jurisdiction of a justice, defendant was entitled to costs and (2) that inasmuch as the Circuit Judge found as a matter of law that the title to the property was in defendants, and that they had the right to take it, there is no ground for application of the rule as to set off, under the general statute, in suits upon claims for unliquidated damages. Bascom vs. Taylor, 39 M., 684; Smith vs. Warner, 14 M., 152; Carter vs. Snyder, 27 M., 484.