Elliott v. Whitmore

Martin Ch. J.: The objections of the plaintiff in error to the questions put to the witness Buck, were properly overruled by the justice. The object of the inquiries was to show that the property in question was exempt by law from seizure and sale upon execution, and the objections were not to the form, but to the purport, of the questions. Under the pleadings in this case we think this inquiry might be properly gone into.. It is not necessary in the declaration in replevin to describe specifically the character of the property, as that it is exempt from sale upon execution, any more than it,, is in an action of trespass or trover. It is sufficient to follow the [536] form, of declaring- prescribed by the statute. This statute is equally obligatory upon justices’ courts as upon the circuit courts; and its sufficiency is not questionable in either. — Comp. L. §3699. The provision of the statute relative to this subject is as follows: “It shall be sufficient for the plaintiff in his declaration, whether the original taking was lawful or otherwise, to allege with requisite certainty of time, place, and value, that the defendant received the, property to be delivered to the plaintiff when thereunto afterwards requested, and that the defendant, although requested so to do, has-not delivered the same to the plaintiff, but hath unlawfully detained the same,” &o. — Gomp. 'I. §5028. In the present instance the declaration is in this form, and under it the plaintiff could show the detention of the goods, his property therein, and his right to the possession thereof at the time of the commencement of the suit. Hence, he could show the illegality of the defendant’s possession, if the property and right to possession were established to be in him unless for such defendant’s claim. The defense interposed in this case is, that the property was seized and held under an execution issued by a justice of the peace upon a judgment in favor of Elliott, and against Whitmore, and that the goods were the property of Whit-more, and lawfully liable to be taken upon such execution; and upon the issue .thus tendered the question of the liability of the property to such seizure is raised. Under the Exemption Law, all wearing apparel of every person or family, and to each householder, all household goods, furniture, and utensils, not exceeding in value $250, are exempt from levy and sale upon execution (Comp. L. §4465) ; and when property thus exempted is seized upon execution, replevin will lie at the instance of the judgment debtor (Ibid. §§5009, 5011). The exemption of wearing apparel is absolute — that of household goods is limited to an amount not exceeding $250 in value; and if the officer holding the execution would protect himself against the consequences of [537] an action for seizing goods of this class, he should cause an inventory and appraisement of the whole of such property belonging to the debtor to be made, and in case an excess over §250 in value is found, a selection of such amount to be made therefrom.— Comp. L. §§4466, 4467. If he neglects the performance of this duty, or if he seizes property of a class wholly exempted, it is no hardship upon him that the debtor asserts his rights by this action. As, therefore, under the statutory form of declaration the question of the exemption of the property from seizure and sale upon execution can be properly raised, no argument can be drawn from such form against the plaintiff’s right of recovery. Whether the goods be unlawfully taken, or wrongfully detained, the declaration is in the same form, and under it every question can be tried that is triable in the action of replevin; and, as already remarked, in the present case the notice accompanying the plea of the general issue distinctly tendered the issue of exemption or non - exemption. The defendant certainly can not insist upon having a declaration specially framed to enable the plaintiff to maintain this right of exemption, any more than to maintain any other special right to the possession of property. There is nothing that we perceive in the affidavit accompanying the writ, inconsistent with the plaintiff’s claim. This is in the usual and prescribed form, and whether it be true or false, consistent or inconsistent with the plaintiff’s claim upon trial, it can not affect the issue or the judgment. The office of the affidavit is to confer jurisdiction ; and it can only be looked into to ascertain that fact, not made to operate as a defense upon the trial upon the merits. .It is only througlNproper pleadings that questions of - this character can be raised, when they can be raised at all. It is also assigned as error that the verdict and judgment are contrary to the law and the evidence. With the correctness of the judgment, so far as it is dependent upon [538] the evidence, this Court has nothing to do. The Circuit Court, in virtue of its statutory jurisdiction, has power to inquire into the evidence exhibited in the Justice’s Court* and to give judgment as the" right of the matter may appear. But this Court decided, 5u Miller vs. Chaffee, 1 Mich. 257, that, upon a writ of error in cases taken to the Circuit Court upon certiorari, this Court has no jurisdiction corresponding to that conferred upon the circuit courts in this respect, and that it can only correct errors of law. The same rule is recognized in Dibble vs. Rogers, 2 Mich. 404. The cases of Herring vs. Hock, 1 Mich. 501, and Snow vs. Perkins, 2 Ibid. 238, are not really, although they are apparently, in conflict with Miller vs. Chaffee. In the former case, the Court discusses the power of the Circuit Court in cases of certiorari to the county court to review the evidence, and then proceeds to show the judgment correct; while in the latter, the Court, in affirming the judgment, reviews the evidence, without comment upon the question of jurisdiction. In neither case was this question raised or referred to. But if these cases were in conflict with Miller vs. Chaffee, we should adhere to the doctrine of that case, as more consistent with reason, and with the jurisdiction and practice of this Court. In adhering to this rule, there is no hardship imposed upon suitors; for if, while the right of appeal is accessible to them, they choose to risk their case upon the more technical remedy of certiorari, it is but right that the consideration of the question of fact should be limited to the tribunal which, by our system of jurisprudence, has sole jurisdiction of this question in all other cases to which the writ of error may reach. The other Justices concurred. Judgment affirmed.