Petruchik v. Pawlovich , 289 Mich. 603 ( 1939 )

Plaintiff has joined two causes of action, one in assumpsit, the other in tort. In the assumpsit count the alleged indebtedness is fixed in the amount of $5,000. Notwithstanding this recital in the declaration, the uncontradicted testimony discloses that his sole assumpsit claim is one month's wages in the amount of $25. In the trespass count the ad damnum clause is in the sum of $20,000. Both claims were submitted to the jury and the verdict was for defendant.

Clearly plaintiff could not appeal as a matter of right, in view of the testimony, from the verdict on the assumpsit count. It conclusively appears that the amount plaintiff could recover under this count was less than $500. Therefore under Court Rule No. 60 (1933), plaintiff could not appeal except by first obtaining leave from this court.

The jury's verdict on the trespass count was also adverse to plaintiff. Therefore he had no right to appeal from such determination except he first obtained a certificate from the trial judge "that the controversy actually involved more than $500." See Court Rule No. 60 (1933). The certificate was not obtained and under the rule plaintiff had no right to appeal from the adverse verdict in his tort action without first obtaining leave from this court.

Leave to appeal was not obtained. The judgment entered in the trial court is affirmed, this amounting to a dismissal of plaintiff's appeal for the above reasons. Costs to appellee.

BUTZEL, C.J., and WIEST, BUSHNELL, SHARPE, POTTER, CHANDLER, and McALLISTER, JJ., concurred.