Stevens v. Harris

58 N.W. 230, 99 Mich. 230, 1894 Mich. LEXIS 668

• Court: Michigan Supreme Court
• Decided: March 6, 1894
• Status: Published

Opinion

Montgomery, J.

This case originated in justice’s court, and was removed to the circuit by special appeal. At the circuit the special appeal was brought on to be heard, and the circuit judge held that the justice never obtained jurisdiction, and dismissed the case.

The affidavit for special appeal presented two points, which we quote:

“ 1. That the said justice erred in holding that the return of the officer to the summons was a good return, against the objections of defendants’ counsel.

“2. That the said justice erred in holding that the declaration of the plaintiff was sufficient, under the law, against the objections of deféndants’ counsel.”

The latter objection was not one which could be raised by special appeal. Albert v. Sutton, 28 Mich. 2; Dalton v. Laudahn, 30 Id. 349; McGraw v. Sturgeon, 29 Id. 426; Manhard v. Schott, 37 Id. 234.

We think that the constable’s return of service was insufficient. But it is contended by appellant that the defendants, by raising the question of the sufficiency of the declaration, and in effect entering a general demurrer, waived the defect, and conferred jurisdiction upon the justice. The return upon the subject is that “the motion set forth in the affidavit is erroneous to discontinue the case on the plaintiff’s declaration, for the attorney withdrew the motion.”

This return so far corroborates the statement in the affidavit as to show that the question of the sufficiency of the declaration was presented, but afterwards withdrawn. A demurrer in justice’s court must be general, and may be either written or verbal. ' How. Stat. § 6875. A general demurrer to a declaration is simply an objection to it on the ground that it is insufficient in law. It cannot be doubted that, in whatever form it be put, any objection in justice’s court, by the defendant, that the plaintiff’s declaration is insufficient in law, would be held sufficient to constitute a general demurrer. The record shows that defendants presented that question to the justice. A general demurrer is a sufficient appearance to give the court jurisdiction. Thompson v. Association, 52 Mich. 524; Norberg v. Heineman, 59 Id. 214. The fact that the defendants had- previously moved to dismiss the case on other grounds does not render a general appearance any the less effectual to confer jurisdiction. Manhard v. Schott, supra. When a defendant appears and objects to jurisdiction, and his objection is overruled, he must then elect either to stand upon his objections or to go into the merits. When he raises the question of the sufficiency of the declaration in law, this is as much an effort to have a determination of the case as would be the tendering of an issue of fact. The return does not show affirmatively that the objection to the declaration was passed upon, though, if the affidavit is true, this is to be fairly inferred. But, whether the demurrer was withdrawn before it was finally passed upon by the justice or not, we "cRrnot think the appearance of defendants can be defeated by any subsequent, attempt to withdraw the demurrer.

We think the circuit judge was in error in dismissing the cause. His judgment-will be reversed, with costs, and the case remanded to the circuit court for Isabella county, to stand for trial upon the merits.

The other Justices concurred.