
    Joseph J. Stevens v. Albert Harris and William Fish.
    
      Justices’ courts* — Special appeal — Demurrer—Jurisdiction—Appearance — Waiver of defects.
    
    1. An objection that the justice erred in holding, against the objection of the defendant, that the plaintiff’s declaration was sufficient in law, cannot be raised by special .appeal.* 
    
    2. In whatever form it be pub, any objection by a defendant in justice’s court that the plaintiff’s declaration is insufficient in law is sufficient to constitute a general demurrer.
    3. A general demurj'gr_í>y the defendant in justice’s court to the plaintiff’s declaration is a sufficient appearance to give the justice jurisdiction of the person of the defendant, which appearance is not defeated by the subsequent withdrawal of the demurrer.
    
      Case made from Isabella. (Hart, J.)
    Argued January 4, 1894.
    Decided March 6, 1894.
    
      Assumpsit. Plaintiff assigns error.
    Reversed, and case remanded for trial on the merits.
    The facts are stated in the opinion.
    
      Dodcls & Dodds, for appellant.
    
      F. G. Wallington and I. A. Fancher', for defendants.
    
      
       For cases bearing upon the proper construction of How. Stat. §§ 6999, 7009, which provide for a special appeal from a justice’s judgment in case there is any objection to the process, pleadings, or other proceedings, and the decision of the justice thereon, which would not be allowed to be made on the trial of the general appeal, and for a return by the justice as to all special matters stated and set forth in the affidavit for appeal, and of copies of all processes, returns, pleadings, and affidavits upon which any process issued or motion was made, and iso much of the evidence- and proceedings as may be necessary fully to exhibit the questions, motions, and decisions made and presented in the case, see:
      1. Wright v. Russell, 19 Mich. 346, holding that the statute does not confine the appellant to the objections actually made before the justice; and that it is as competent for a defendant to bring a jurisdictional objection, which he is not obliged to appear before the justice for the purpose of making, before the circuit court by special appeal as by certiorari.
      
      2. Albert v. Sutton, 28 Mich. 2, holding that questions as to the admissibility of evidence are not subject to review; and Dalton v. Laudahn, 30 Mich. 349; Manhard v. Schott, 37 Id. 234; Webster v. Williams, 69 Id. 135, — holding the same doctrine.
      3. McGraw v. Sturgeon, 29 Mich. 426, holding that the action of a justice of the peace in refusing to summon a second jury, after the disagreement of the first one, on the demand of the defendant, who refused to pay the required jury fee, and in trying the case ex parte on the refusal of the defendant to attend the trial without a jury, is not reviewable on special appeal.
      4. Deitz v. Groesbeck, 32 Mich. 303, holding that mere irregularities in the proceedings before the justice cannot be raised on special appeal; and Benjamin v. Dodge, 50 Mich. 41, holding that a special appeal is properly overruled where no question of jurisdiction is involved, and the case is in a situation to be retried on the merits.
      5. Maxwell v. Deens, 46 Mich. 35, holding that a defendant who, on being arrested on a civil warrant, joins issue and proceeds to trial on the merits, without motion or objection of any kind, cannot take a special appeal from an adverse judgment on the grounds of the insufficiency of the affidavit on which the warrant issued and error in the decision of the justice that it was in accordance with law.
      6. Fowler v. Hyland, 48 Mich. 179, holding that an objection that the justice had no jurisdiction over the subject-matter of the suit’, can be raised on special appeal; and Rosevelt v. Hanold, 65 Mich. 414, holding that a question affecting the jurisdiction of the justice-to render a judgment may as well be raised by special appeal as. in any other manner.
      7. Woodbridge v. Robinson, 49 Mich. 228, holding that an objection by a defendant, who did not appear, that the attorney who appeared for the plaintiff in her absence did not prove his authority, is properly taken by special appeal.
      8. Lymburner v. Jenkinson, 50 Mich. 488, holding:
      a — That the inference is very strong from the language of the statute that a special appeal is to reach only the decisions actually made by the justice, or which are necessarily involved in his action (Chappee v. Thomas, 5 Mich. 53, 57; Wright v. Russell, 19 Id. 346); and that, if this be the case, an error in fact must be rectified by some other process.
      b — That the purpose of the affidavit is to bring the case into the-circuit court, and to indicate the questions for consideration in. that court, and it is not evidence of the facts recited for any other purpose than tq secure a return.
      c — That, if the return shows a judgment apparently correct, the-general rule is that all special assignments of error stand disproved; and, if assignments of error of fact are admissible, the rule must be the same, at least to the extent that the burden of showing error when it does nob appear by the return is upon the party alleging it.
      ci^-That, if parties take ax>peals for the correction of faults which can be easily and inexpensively corrected without them, they will be entitled in the appellate court to demand nothing that they do not show an unquestioned right to; and all just intendments will favor the correctness of judicial action.
      e — That the rendition of two distinct judgments, one for costs on the special appeal, as if that were a distinct suit of itself, and .another for damages and costs on the merits, is substantial error.
      9. Webster v, Williams, 69 Mich. 185, holding that the allowance by a justice of the peace of an amendment to a declaration after the submission of the cause cannot be reviewed on sx>ecial appeal.
      10. Peterson v. Fowler, 76 Mich. 258, holding that a special appeal brings up only questions of law relating to the jurisdiction to proceed before the justice, which have been passed upon by him when properly brought to his attention; and, if the objections have in any manner been waived, the circuit court cannot entertain them.
      11. Freer v. White, 91 Mich. 74, holding that where, after the denial of a motion to quash attachment proceedings in justice’s court because of a fatal defect in the affidavit, the defendant, who had appeared specially for the purposes of the motion, removes (the case to the circuit court by special appeal, assigning as error such refusal, the entry by his attorney of his appearance in the ' circuit court will not be ti\ ated as a submission to the jurisdiction of the court.
    
   Montgomery, J.

This case originated in justice’s court, and was removed to the circuit by special appeal. At the circuit the special appeal was brought on to be heard, and the circuit judge held that the justice never obtained jurisdiction, and dismissed the case.

The affidavit for special appeal presented two points, which we quote:

“ 1. That the said justice erred in holding that the return of the officer to the summons was a good return, against the objections of defendants’ counsel.
“2. That the said justice erred in holding that the declaration of the plaintiff was sufficient, under the law, against the objections of deféndants’ counsel.”

The latter objection was not one which could be raised by special appeal. Albert v. Sutton, 28 Mich. 2; Dalton v. Laudahn, 30 Id. 349; McGraw v. Sturgeon, 29 Id. 426; Manhard v. Schott, 37 Id. 234.

We think that the constable’s return of service was insufficient. But it is contended by appellant that the defendants, by raising the question of the sufficiency of the declaration, and in effect entering a general demurrer, waived the defect, and conferred jurisdiction upon the justice. The return upon the subject is that “the motion set forth in the affidavit is erroneous to discontinue the case on the plaintiff’s declaration, for the attorney withdrew the motion.”

This return so far corroborates the statement in the affidavit as to show that the question of the sufficiency of the declaration was presented, but afterwards withdrawn. A demurrer in justice’s court must be general, and may be either written or verbal. ' How. Stat. § 6875. A general demurrer to a declaration is simply an objection to it on the ground that it is insufficient in law. It cannot be doubted that, in whatever form it be put, any objection in justice’s court, by the defendant, that the plaintiff’s declaration is insufficient in law, would be held sufficient to constitute a general demurrer. The record shows that defendants presented that question to the justice. A general demurrer is a sufficient appearance to give the court jurisdiction. Thompson v. Association, 52 Mich. 524; Norberg v. Heineman, 59 Id. 214. The fact that the defendants had- previously moved to dismiss the case on other grounds does not render a general appearance any the less effectual to confer jurisdiction. Manhard v. Schott, supra. When a defendant appears and objects to jurisdiction, and his objection is overruled, he must then elect either to stand upon his objections or to go into the merits. When he raises the question of the sufficiency of the declaration in law, this is as much an effort to have a determination of the case as would be the tendering of an issue of fact. The return does not show affirmatively that the objection to the declaration was passed upon, though, if the affidavit is true, this is to be fairly inferred. But, whether the demurrer was withdrawn before it was finally passed upon by the justice or not, we "cRrnot think the appearance of defendants can be defeated by any subsequent, attempt to withdraw the demurrer.

We think the circuit judge was in error in dismissing the cause. His judgment-will be reversed, with costs, and the case remanded to the circuit court for Isabella county, to stand for trial upon the merits.

The other Justices concurred.  