Punch v. Marblestone , 243 Mich. 23 ( 1928 )

Plaintiff commenced in justice's court two suits against defendant. The declarations were on the common counts in assumpsit. Plaintiff had judgment in each case. Defendant appealed. In the circuit the causes were consolidated and tried as one, and the jury brought in a general verdict, as appears by the calendar entries printed in the record, in the sum of $558.49. It is said that judgment was entered on the verdict. The judgment so entered is not in the record.

Defendant failed to settle and to have signed a bill of exceptions. He seeks review here on error without bill of exceptions under Supreme Court Rule No. 11. The record contains a so-called bill of exceptions, motions for new trial, and other matter which have no place in a return and record under the rule. We would be justified in refusing to sift the record to discover its material parts. Haney v. Grand Rapids TrustCo., 221 Mich. 160.

Most of the assignments of error relate to instructions to the jury and to motions for new trial. These cannot be considered in a case here under the rule. See Radics v. Hayes,233 Mich. 200; Young v. Grand Rapids Trust Co., 228 Mich. 115. The principal question discussed is splitting the cause of action, and the assignment of error on which it is raised relates to instructing the jury, and therefore may not be considered. Moreover, this defense could be used only by pleading the first action in bar of the second. Dutton v. Shaw, 35 Mich. 431. And to prevail it must be supported by proof. General Electrical Engineering. Co. v.Brumm, 218 Mich. 571; Gardner v. Patten, 15 N.Y. Supp. 324. Whether there was proof and whether the defense was urged to the trial court in the trial we cannot determine in the absence of a bill of exceptions.

No other question merits discussion.

Judgment affirmed.

FEAD, C.J., and NORTH, FELLOWS, WIEST, McDONALD, POTTER, and SHARPE, JJ., concurred.