Franks v. Fecheimer
Michigan Supreme Court
Error to Shiawassee. Assumpsit for goods sold and delivered. A suit was brought before a justice and judgment given for defendant for costs, the only defense being that the account was not due. Plaintiffs appealed, but, after the appeal was filed, discontinued their suit and. paid the defendants’ costs, and brought a new suit in the circuit to which defendants pleaded the justice’s judgment in bar.
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Error to Shiawassee. Assumpsit for goods sold and delivered. A suit was brought before a justice and judgment given for defendant for costs, the only defense being that the account was not due. Plaintiffs appealed, but, after the appeal was filed, discontinued their suit and. paid the defendants’ costs, and brought a new suit in the circuit to which defendants pleaded the justice’s judgment in bar. It was conceded on the hearing that if the plea in bar was overruled, the plaintiffs were entitled to judgment for the amount.of their claim. Plaintiffs had judgment, and defendants bring error.
1Opinion of the CourtMarston, C. J.
Under the facts found by the court in this case the judgment must be affirmed. The plaintiffs had undoubtedly the right to show that the judgment of the justice of the peace was not on the merits. The court so found as a fact, and held that it would be no bar to the present action.
Plaintiffs in error rely upon Comp. L. § 5456, which provides that upon an appeal being discontinued or dismissed, upon the same being certified to the justice, he shall proceed as if no appeal had been taken. The appeal taken in this case was neither discontinued nor dismissed, but the plaintiffs, after the case…
2Cited by7 opinions
- McKinney v. CurtissMichigan Supreme Court · 1886
- Windsor v. St. Paul, Minneapolis & Manitoba Railway Co.Washington Supreme Court · 1905
- Munro v. MeechMichigan Supreme Court · 1893
- Shank v. WoodworthMichigan Supreme Court · 1897
- Barnett v. WorrellSupreme Court of Oklahoma · 1915
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