Johnson v. Kibbee
Michigan Supreme Court
Error to Wayne Circuit. This was assumpsit upon a promissory note; plea the general issue, with notice of special matters of defense. Proceedings were stayed for a considerable time, and when that stay was removed and the cause set down for trial, the defendant filed a plea of payment, in the form of a plea puis darrein continuance, to which no demurrer or replication was filed.
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Error to Wayne Circuit. This was assumpsit upon a promissory note; plea the general issue, with notice of special matters of defense. Proceedings were stayed for a considerable time, and when that stay was removed and the cause set down for trial, the defendant filed a plea of payment, in the form of a plea puis darrein continuance, to which no demurrer or replication was filed. The cause coming on for trial, it was tried upon the original issue, and judgment rendered for the plaintiff, and the defendant brought error.
1Opinion of the Court
Marston, J:
It is conceded by counsel in this case that at 'common law the effect of a plea puis darrein continuance is to destroy the issue previously formed; and that a new issue must be formed on the plea puis darrein, by replication or otherwise, and such undoubtedly was the rule. It is claimed, however, by defendant in error, that our statute *270(Comp. L., § 5792) abolishing special pleas would seem to prevent the making a special defense by plea, arising in a case subsequent to the filing of the plea of the general issue, and that no provision is made to meet the exigency of such a case;-…
2Cited by4 opinions
- Smith Sturgeon & Co. v. GrosslightMichigan Supreme Court · 1900
- Lessnau v. Catholic Order of ForestersMichigan Supreme Court · 1910
- Snyder v. QuartonMichigan Supreme Court · 1881
- Whittemore v. StephensMichigan Supreme Court · 1882