Toleikis v. Austin

Moore, J. The plaintiff filed his declaration against the defendants, John L. Austin, a justice of the peace of the village of Highland Park, Charles Seymour, chief of police of said village, and Charles Brown, a patrolman of said village. The declaration attempts to set forth a case because of the false imprisonment of the plaintiff and contains two counts. The defendants demurred to said declaration, claiming it did not state a cause of action. Upon the hearing the lower court entered an order sustaining said demurrers as to all of the defendants to the second count of plaintiff’s declaration, and sustaining the demurrers of the defendants Austin and Seymour as to the first count of the declaration, and overruled the demurrer of defendant Brown, the patrolman, to the first count of [334] the declaration. The plaintiff seeks to bring the case here by writ of error. Defendants assert that a writ of error will not lie in this case; that the province of a writ of error is only to review a final judgment. It is also claimed by the defendants that the declaration does not state a cause of action. • The case is one against three defendants sued jointly. The demurrer is sustained as to two of them, and overruled as to one of them. This leaves the case still pending for further proceedings in the court below. Under such circumstances the writ of error is not available. Perry v. Church, 107 Mich. 480 (65 N. W. 273), and the cases cited therein; In re Apsey’s Estate, 173 Mich. 426 (138 N. W. 1054). The case is dismissed, and the record remanded, with costs in favor of defendants. Kuhn, C. J., and Stone, Ostrander, Bird, Steere, Brooke, and Fellows, JJ., concurred.