Kelso v. Saxton

Graves, J. This is a writ of error to a judgment of the circuit court affirming the judgment of a justice off [667] ■¡¡he peace in an action of replevin. The suit was brought by Saxton against Kelso for “one cow, seven years old, color, red with white,” and “two yearlings, red and white in color.” The animals were seized upon the writ and delivered to Saxton. Kelso moved to dismiss the case upon the ground that the description was not sufficient, and the justice granted the motion so far as it related to the “yearlings,” but denied it as to the cow, and this refusal to dismiss the entire case is made a ground of error. The objection to the description was not tenable, and the justice erred in sustaining any part of it. Farwell v. Fox, 18 Mich., 166. As however the error was in Kelso’s favor he cannot complain of it. The charge of error that the justice refused to receive testimony as to the value of the yearlings contradicts the record. When the justice decided the motion the plaintiff in error proposed to go into evidence upon the value of these animals, but the justice advised that it should be deferred until the case relating to the cow should be gone through with, and both parties acquiesced. After this ruling Kelso pleaded the general issue and demanded a jury, and the issue was then tried. The objections to the rulings by the justice in regard to evidence are all frivolous and require no attention. After the evidence • was all in, the parties by their attorneys addressed the jury and the case was submitted, no evidence of the value of the yearlings having been introduced, and the jury found in Saxton’s favor as to the cow, and the justice specially returns that when the jury rendered their verdict neither Kelso nor any one in his behalf was present, and that he (the justice), after considerable inquiry, became satisfied that Kelso and his attorney had gone home and would not appear, and that he therefore entered judgment in Saxton’s favor on the verdict for the cow, and on the other hand gave judgment that Kelso should have return of the yearlings. [668] In this there was no error. In leaving the case and omitting to produce any evidence whatever of the value of the yearlings, the plaintiff in error submitted to have judgment for return of the property instead of judgment for the value. The judgment is affirmed with costs. The other Justices concurred.