
    
      Wayne Circuit.
    
    PETER L. MILES vs. FREDERICK L. SEITZ.
    
      When Demurrer may be Argued.
    
    When there is a demurrer to one count and pleas to the others, the demurrer may be heard and disposed of before the trial of the issue of fact, and permission should be given to call it up for argument at any time when the court can hear it.
   By the Court,

Brown J.:

This is a motion on behalf of the plaintiff for the immediate argument of a demurrer to one count of his declaration, there having been ,a plea to the remaining counts. The case was noticed for trial and placed among the issues of law and those of fact. Section 4,347 of the Compiled Laws provides that a notice of trial of every issue of fact shall be served, &c. Section 4,348 directs that a note of issue joined in any case shall be served on the clerk. Rule 58 prescribes a classification of all cases in which notes of issue have been filed, directs their separate arrangement under the heads of “ Issues of Fact,” “ Issues of Law,” “Imparlances,” and “Criminal Causes,” but does not require all cases which might be arranged under those heads to be placed on the docket, nor attempt to prescribe the order in which they shall be heard. Under the practice in this country issues of law are frequently not placed upon the docket, imparlances rarely and criminal cases never. The statute requiring notes of issue, I think, is limited by the preceding section to issues of fact. I know of no rule either requiring issues of law to be placed on the docket or prohibiting the court from hearing such issues at any time, even when there is an issue of fact in the same case. A contrary course, and an obligation on the part of the court to hear cases in their order on the docket, would enable a defendant to obtain at least one continuance of a cause, simply by filing a demurrer. It seems to me parties would be deprived of their constitutional right to a speedy trial by such a course. My own impressions upon this subject have been fully confirmed by the opinions of my predecessors, and by those of the most extensive practitioners at this bar. As the demurrer must be disposed of before the issue of fact can be tried, I will permit it to be taken up at any time when the court is not engaged with jury cases.

(Sep. 9, 1868.)

Moore & Griffin for Plaintiff.

Levi Bishop for Defendant. 
      
       Criminal cases have been placed on the docket of the Wayne Circuit since 1873 at least, when the editor commenced practice at this bar.
     