Smith v. Cowles

81 N.W. 916, 123 Mich. 4, 1900 Mich. LEXIS 753

• Court: Michigan Supreme Court
• Decided: February 20, 1900
• Status: Published

Opinion

Grant, J.

(after stating the facts). The notice given under the common counts cannot aid the special count. That count sets forth the amount of the judgment, the defendant, and the court in which it was rendered. It fails to give the name of the plaintiff and the date of the judgment, and to state that it is in force. The declaration is clearly defective, and the objection raised against it would have been good upon demurrer. For form of declaration upon a judgment, see 1 Shinn, PI. & Prac. 552. The defendant chose to plead the general issue. To sustain his contention, we must hold that the declaration states no cause of action. The cause of action stated is a judgment. The pleader has failed in describing this judgment as fully as good and careful pleading requires. Plaintiff could have amended upon the trial, and should have asked leave to do so. Appellate courts are authorized to amend declarations, where the issue is not altered by the amendment. 3 Comp. Laws 1897, § 10273; also see section 10272, subd. 7, and authorities cited. Under that statute this court will consider this amendment as now made. Kean v. Mitchell, 13 Mich. 207, is a case in point. The rule applicable to this case is there quoted and approved, and is as follows:

“Where there is any defect, imperfection, or omission in any pleading, whether in substance or form, which would hav”e been.a fatal objection upon demurrer, yet if the issue joined be such as necessarily required, on the trial, proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given, the verdict, such defect, imperfection, or omission is cured by the verdict at the common law.” Stennel v. Hogg, 1 Saund. 228, note 1.

The judgment is affirmed.

The other Justices concurred.