Marvin v. Bowlby

Grant, J. (after stating the facts). 1. The court committed no error in proceeding with the trial. Circuit Court Rule No. 10 provides that, when a declaration is amended after plea or demurrer, “such plea or demurrer shall stand as the plea or demurrer to the amended declaration, unless the defendant shall, within ten days after receiving such amendment, file another plea or demurrer.” If the defendant had filed a plea or demurrer to the amended declaration within the time fixed by the rule, the question might arise whether the pleadings were in condition for a notice of trial. The defendant filed no plea or demurrer for 35 days after the declaration was amended by stipulation, and not until the case was called for trial. By not pleading within the 10 days, the case stood at issue. Defendant should have moved on the first day of court to strike the case from the docket or for a continuance. Peninsular Stove Co. v. Osmun, 73 Mich. 570 (41 N. W. 693). 2. It is urged that the court erred in directing a verdict .for the plaintiff as to some of the notes upon which re [644] covery was had. These are questions of fact, and their' determination depends upon the evidence. The record-does not show that it contains all the evidence that was introduced upon the trial. This allegation cannot, therefore, be considered. Metz v. People’s Sav. Bank, 129 Mich. 320 (88 N. W. 874). Judgment affirmed. Moore, C. J., Montgomery and Hooker, JJ., concurred. Carpenter, J., did not sit.