Morgan v. Hoey

Brooke, J. (after stating the facts). The first and principal error relied upon by the defendant on this appeal is the denial of defendant’s motion to dismiss the case in the Bay circuit, by reason of the fact that a similar case for the same cause of action was pend [659] ing between the same parties in the Alpena circuit on the day that the summons was issued in the case at bar. It is asserted by counsel that the circuit.court for the county of Alpena, having obtained jurisdiction of the parties and the subject-matter, the circuit court' for the county of Bay could not take jurisdiction of the same parties and. the same subject-matter while the suit first commenced was pending and undetermined in the circuit court for the county of Alpena, citing Maclean v. Wayne Circuit Judge, 52 Mich. 257; Barnum Wire & Iron Works v. Speed, 59 Mich. 272; Shields v. Riopelle, 63 Mich. 458; Speed v. Common Council of Detroit, 98 Mich. 360 (22 L. R. A. 842) ; Wells v. Montcalm Circuit Judge, 141 Mich. 58 (113 Am. St. Rep. 520) ; In re Carney’s Estate, 199 Mich. 663. There would seem to be no doubt that on the day the summons was filed and served in the case at bar (August 16, 1918), the Bay circuit was without jurisdiction to entertain the action. However, on the 20th day of August, thereafter, plaintiff filed a discontinuance of his suit in the Alpena circuit and paid, or offered to pay, the taxable costs in connection therewith, and on August 27, 1918, defendant entered his general appearance in the case at bar. Plaintiff's declaration having been filed on August 29th, defendant, on August 31st, demanded a bill of particulars which was thereafter filed and served on September 12th. The motion to dismiss was not made until September 21st — some 30 days after the discontinuance of the action in the Alpena circuit and long after defendant had appeared generally and demanded a bill of particulars. Defendant relies upon the provisions of section 12456 of the Compiled Laws of 1915 and Circuit Court Rule No. 31, § 6, which provides: “A motion attacking a pleading must be filed and [660] served within fifteen days after the receipt of the pleading attacked, and not afterwards,” * * * —and it is said that the motion to dismiss should have been granted because, on the day the summons was issued in the Bay circuit, the court was without jurisdiction. Counsel says: “For obvious reasons, plaintiff must rest his right to commence his suit in the Bay circuit court, upon the conditions that existed when he issued process and had it served upon the defendant, not afterwards.” Had defendant appeared specially and moved to dismiss upon the grounds stated, we are of the opinion that the motion should have been granted; but we do not think that it was the legislative intent, as indicated by the enactment of section 12456, supra,, to change the principle of the practice which had theretofore existed, which was that jurisdictional irregularities are waived by a general appearance. See 1 Green’s Michigan Practice (3d Ed.), page 378, and cases cited. Several errors are assigned upon the admission of testimony and the charge of the court. These we have examined and find them to be without merit, except one, relative to the amount recovered, which was cured by the reduction of the judgment on the motion for new trial. The record discloses a sharply contested question of fact which was disposed of by the jury favorably to plaintiff’s contention under a charge which, taken as a whole, was eminently fair. The judgment is affirmed. Moore, C. J., and Steere, Fellows,' Stone, Clark, Bird, and Sharpe, JJ., concurred.