Township of Richland v. Cliff , 131 Mich. 628 ( 1902 )

Montgomery, J.

This is an action on a township treasurer’s bond in the penal sum of $4,000. The suit was originally instituted injustice’s court. Plaintiff recovered in both the justice’s court and at the circuit. Defendants bring error. The summons does not appear in the record, but the declaration complains of the defendants “in a plea that they render to the said plaintiff the sum of three hundred dollars, which they owe to and unlawfully detain from the said plaintiff,” — the usual form of commencement of a declaration in debt. 2 Stev. Mich. Prac. p. 515. The declaration then recites the bond, assigns a breach, and concludes with an allegation of damages.

The action is clearly an action in debt. The only question presented for our consideration is whether an action of debt on a bond of this character, with a penalty of more than $300, can be brought in justice’s court. This question must be answered in the negative, on the authority of Bishop v. Freeman, 42 Mich. 533 (4 N. W. 290); Durfee v. Dean, 52 Mich. 387 (18 N. W. 118); Gray v. Stafford, 52 Mich. 497 (18 N. W. 235). There is a statute conferring jurisdiction upon justices of the peace in actions on money bonds where the sum of the amount secured is $150 or less. 1 Comp. Laws, § 709. So, also, under a statute authorizing suit in assumpsit by a third party not the payee in a bond to recover his damages (1 Comp. Laws, § 890), we have held that a justice has jurisdiction if the amount actually involved is less than $300. Montgomery v. Martin, 104 Mich. 390 (62 N. W. 578). But neither of these statutes aids the plaintiff here.

Judgment will be reversed, and judgment entered in this court for defendants for costs of both courts, including an attorney’s fee of $10 for the trial below. The judgment entry w-ill show that the case is decided solely on the ground of want of jurisdiction, and judgment will be without prejudice to a new action in the proper forum.

Hooker, C. J., Moore and Grant, JJ., concurred.