Franks v. Fecheimer

Marston, 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 was in the circuit, discontinued their suit. This they had a right to do. The judgment of the justice was one for costs against them only, and these they had paid on taking their appeal. The defendants had obtained no substantial right in the case when appealed which would preclude the plaintiffs and appellants from discontinuing their canse of action. Had the justice’s judgment been one in favor of the defendants for damages and costs, and the plaintiffs had appealed therefrom, then whether in such a case the plaintiffs could discontinue and thus deprive the defendants of the substantial right which they had acquired by the judgment, may be a different question. In the present case we have no doubt but that on the facts found, the justice’s judgment rendered against the plaintiffs, because the claim sued upon was not due at the time the action was commenced, would be no bar to the second suit. The judgment must be affirmed with costs. The other Justices concurred.