Siegmeyer v. Small

236 N.W. 904, 254 Mich. 679, 1931 Mich. LEXIS 1000

• Court: Michigan Supreme Court
• Decided: June 1, 1931
• Docket: Docket No. 28, Calendar No. 35,345.
• Status: Published

Opinion

Wiest, J.

Plaintiff filed the bill herein to have the amount due under a land contract determined and to restrain a summary proceeding brought to oust her from the premises. Defendant, under special appearance, moved to dismiss the bill because of former adjudication-between the parties in the same court, failure of plaintiff to give a bond upon staying by injunction tbe summary proceeding, and plaintiff had an adequate remedy at law. The motion was granted, and plaintiff reviews by appeal.

Failure to give a stay bond justified release of the injunction, but not dismissal of the bill. Former adjudication must be pleaded in bar, and cannot be considered under a special appearance and motion to dismiss. The court was in error in adjudging that a former adjudication barred this suit. Such an issue required a plea in bar and proof in support thereof. Vyse v. Richards, 208 Mich. 383; Red Star Motor Drivers’ Ass’n v. City of Detroit, 244 Mich. 480; Chatham-Trenary Land Co. v. Swigart, 245 Mich. 430.

The record before us contains the bill of complaint and special motion. The bill of complaint does not present the question of former adjudication. Extrinsic proof was necessary. In the summary proceeding judgment passed against'plaintiff, and the bill herein was filed just before writ of restitution- could have been issued. The bill was properly dismissed. See Bassett v. Trinity Building Co., ante, 207; Pariseau v. Trinity Building Co., ante, 213.

For the reason-mentioned, the decree is affirmed, with costs to defendant.

Butzel, C. J., and Clark, McDonald, Potter, Sharpe, North, and Fead, JJ., concurred.