Hager v. Schliess

Moore, J. Some phases of this litigation were recently before this court. A reading of the opinion, found in 183 Mich. 610 (149 N. W. 1058), will make a long statement unnecessary here. The case was argued at the January term of £he court. Counsel for appellants says — we quote from the brief: [473] “As we view this case there is only one question involved, viz., whether the established rules and precedents of this court relating to the practice upon and disposition of pleas in chancery are to be sustained or are to be reversed, and we shall accordingly begin our argument with a discussion of this topic.” We cannot agree with the counsel that this is the question involved. His appeal was reinstated because he contended and the record showed that defendants had abandoned their right to answer in said cause, and had elected to abide by their, plea. The trial court found that the truth of the plea was established, but he was of the opinion that, though established, it is not sufficient in law to constitute a defense. We take it the question is, Vfas he right in so finding? This court has recently had occasion to construe Act No. 101, Pub. Acts 1907, entitled “An act to regulate the carrying on of business under an assumed or fictitious name.” The cases are Cashin v. Pliter, 168 Mich. 386 (134 N. W. 482, Am. & Eng. Ann. Cas. 1913C, 697); Sauer v. Construction Co., 179 Mich. 618 (146 N. W. 422); Axe v. Tolbert, 179 Mich. 556 (146 N. W. 418); Zemon v. Trim, 181 Mich. 130 (147 N. W. 540); and Cross v. Leonard, 181 Mich. 24 (147 N. W. 540). These cases are so recent and so accessible that we shall content ourselves with saying that they justify the conclusion that defendant’s plea, though true, was not a defense. The decree is affirmed. Brooke, C. J., and McAlvay, Kuhn, Stone, Ostrander, Bird, and Steere,. JJ., concurred.