Tower v. Lamb

Martin Ch. J.: Lamb, the plaintiff below, brought his action in a justice’s 'court against Tower and two other defendants, Burch and Cooper. The declaration was in trespass, and the damages ‘claimed $500. A discontinuance was entered as to Cooper, and, after trial, judgment was rendered against Tower and Burch for $100 and costs. From this judgment Tower •appealed to the county court, and there Tower, Burch (and, by some error, Cooper) all entered their appearance by attorney. Upon trial in the county court, judgment was rendered against Tower and Burch for $200. The cause is brought to this Court upon writ of error, by Tower alone. The errors assigned are, — 1st, The insufficiency of the declaration; 2d, That the claim of $500 damages ousted the .justice of jurisdiction; 3d, That the county court had no .jurisdiction of Tower (and Burch, as the appeal was by Tower alone; and, 4th, That there was no judgment rendered by the justice from which Tower could appeal, and the proceedings in the county court were, for these reasons, void. The first error assigned is, very properly, not urged by the plaintiff in error. The second is within the rule of Wells v. Scott, 4 Mich. 347, where it was held that this Abjection comes too late after appeal, when the objection is not raised in the appellate court. The third error assigned is based upon the fact that Tower alone appealed. But the appearance of Burch obviated any objection which can be made in this court, by either Tower or Burch, to the ,juris<£6tion of the county court. It is, moreover, one which Tower, as appellant, can not take, as he suffers no injury by a joint judgment, and had most certainly submitted himself to the jurisdiction of that court; and Burch is not a party assigning errors. But the record showing that Burch did appear, no objection to the jurisdiction or judgment of the court can prevail. The fourth error assigned is that no proper judgment [364] was rendered by the justice, from which Tower could appeal.' But he did appeal, and without objection to the form of that judgment; and that fact, and the further one of a judgment in the county court, makes this objection come, too late. After appeal and trial, no error can be assigned upon the form of the justice’s judgment. The judgment of the court below is affirmed, with costs. The other Justices concurred.