DANIELS v. CLEGG.

should introduce the evidence of the attempt seasonably to turn out to the right, or that the plaintiff's daughter might have avoided the collision, but that under this charge it would be sufficient for the protection of the defendant if these facts appeared from any of the evidence in the cause; and when the whole charge is taken together we think it can fairly be understood as stating only in effect, that the failure of the defendant to turn to the right would be evidence tending to show that the injury was caused by the negligence of the defendant,-and this is certainly true, but that if it appeared in any way from the evidence that the plaintiff's daughter, by the exercise of ordinary care, might have avoided the collision, the defendant was not liable. Thus understood the charge was correct; and we think the charge as a whole, must have been so understood by the jury.

Upon the whole case, therefore, we think the judgment should be affirmed, with costs.

The other Justices concurred.

James Evers and others v. Lydia Ann Sager.

Appeal from justice's courts: Amendments: Pleadings: Ad damnum: Jurisdiction. The statute (Comp. L., § 5458,) allowing amendments to the pleadings, or the filing of new pleadings in the circuit upon an appeal from the justice's court, does not warrant the introduction of a new cause of action, or such a variation in the plaintiff's claim as would have ousted the justice of jurisdiction if made in the court below, as by increasing the ad damnum beyond the limit of his jurisdiction.

Estoppel: Stipulation: Objection: Waiver. But a party who has stipulated for such amendments "as either party may desire," and made no objection to the declaration as amended, but pleaded to the merits, and after verdict against him, for the first time objects, in order to limit the recovery of costs, that it was not an amendment in the appeal case, but the institution of a new suit, is estopped from raising the point.

EVERS V. SAGER.

Appeal bond: Sureties: Principal: Amendments. The sureties on the appeal bond of the party thus waiving his right to raise this objection, would not be bound by his action, and the point is well taken on their behalf; and the amendment in question operates to discharge them from all liability; for, while their obligation must be understood as contemplating such amendments as the court has power to make irrespective of the stipulations of the parties, it cannot be understood as making them responsible for such acts of their principal as are uot contemplated by the statute, and as could only bind him personally on the principle of estoppel.

Statute construed: Costs. The statute (Comp. L., § 7388), providing that in certain actions the plaintiff shall recover no more costs than damages, does not apply to a case tried on appeal; but the costs in such a case are governed by another statute (Comp. L., § 5459), authorizing the court to award them to either party, as it may deem just and right in view of the particular circumstances of each

case.

Remedy: Error: Certiorari: Appeal bond: Principal: Sureties. Error, and not certiorari, is the proper remedy to review a joint judgment against a principal and his sureties upon a bond on an appeal of the cause from a justice's court.

Error to Kalamazoo Circuit.

Heard July 15. Decided October 8.

Severens, Potter & Boudeman, for plaintiffs in error.

Edwards & Sherwood, for defendant in error.

COOLEY, J.

In an action of trespass for assault and battery, brought in justice's court, and resulting in a verdict for the plaintiff of five dollars, the defendant appealed to the circuit court, where, by consent, the parties amended their pleadings. In amending the declaration, the plaintiff increased the ad damnum to a sum beyond the jurisdiction of a justice; but no objection was made to this, and a trial was had by jury upon an issue of fact, and a verdict rendered for the plaintiff of ten dollars. Thereupon the court ren- . dered judgment for the plaintiff for the damages found, and also for full costs, against not only the defendant, but also against his sureties on the appeal.

On error, several objections are made to this judgment. First, it is insisted that after an amendment had been made to the declaration, increasing the sum demanded to

EVEES v. SAGER.

one beyond the jurisdiction of a justice, the suit in effect became a new suit in the circuit court, and must proceed as such thereafter, and could no longer be regarded as an appealed case. The consequence would be a discharge of the sureties on the appeal, and possibly a different result as to the award of costs. The defendant in error disputes this position, relying upon certain cases in other states which are supposed to justify an increase in the sum claimed after an appeal has been taken, without in any manner affecting the identity of the case in the circuit with that in which appeal was taken.

The first case referred to is Palmer v. Wylie, 19 Johns., 276, where under a statute which provided that the court of common pleas, after it had possessed itself of a cause by appeal from a justice, should "proceed and give judgment as the very right of the case shall appear, without regard to the previous trial had thereon," the supreme court of New York held that the common pleas might render a judgment exceeding the justice's jurisdiction. The case is not reasoned, the court simply remarking that the statute "dispenses with all matter of form, and every thing inconsistent with the mere justice of the case between the parties." This case was followed in Jackson v. Covert, 5 Wend., 139, in an opinion equally concise, the court contenting itself with saying that "the plaintiff below, it is true, would not have recovered more than fifty dollars had the defendant submitted to the justice's judgment; but when he appealed to the common pleas, that court was not limited in jurisdiction, and the plaintiffs were entitled to recover all the damages they could prove, if they were entitled to recover any thing."

We do not find these cases applicable to our statute. We have no corresponding provision to that referred to in the case in Johnson, and which the court understood to authorize the common pleas to proceed in the case precisely as though it were a new one in that court. The case of Dressler v. Davis, 12 Wis., 58, arises under a statute

28 MICH.-7.

EVERS V. SAGER.

more like that of New York than like our own. In that case, after an appeal from a justice, the plaintiff so amended his declaration as to claim damages beyond the justice's jurisdiction, and recovered verdict for the sum claimed. The statute provided that the action should be tried in the appellate court as cases originally brought there; and the court was of opinion that the New York cases were in point, and that the statute would permit any amendment and any recovery which might have been made or had in a case commenced in the appellate court. This case, therefore, like the cases in New York, rests upon a peculiar provision of statute not adopted here. Our statute throughout treats the case in the appellate court as the same case which was tried before the justice, only brought up (where the appeal is general) for a new trial. Amendments to the pleadings, or the filing of new pleadings in the cause, are allowed "as right and justice between the parties may require" (Comp. L., § 5458), but this has never been understood in this state as warranting the introduction of a new cause of action, or such a variation in the plaintiff's claim as would have ousted the justice of jurisdiction if made in the court below. And we are referred to no other cases more nearly in point than those above mentioned.

The plaintiff in error, James Evers, was sole defendant in the court below, and he stipulated with the plaintiff that "either party may amend the pleadings therein as they may desire," and he made no objection to the amended declaration which claimed the increased damages, but pleaded to the merits, and after verdict against him, for the first time, in order to limit the recovery of costs, insisted that the case ceased to be a case on appeal when the amendment was made. These facts render the present case peculiar and exceptional, and we are of opinion that when the defendant pleaded to the amended declaration, which on its face purported to be amended in pursuance of his stipulation, as it was in fact, he precluded himself from insisting afterwards. that it was not an amendment in the appeal case, but the

EVERS v. SAGER.

institution of a new suit. In this case, at least, where the recovery in the circuit court was not beyond the jurisdiction of the justice, and where there is no reason to suppose the parties intended any new suit, we think justice requires us to overrule the objection if the rules of law will admit of our doing so. And we think the previous rulings of this court will justify this course.

In Wells v. Scott, 4 Mich., 347, a plaintiff claimed in justice's court a sum beyond its jurisdiction. The defendant took no objection on that ground, and the plaintiff recovered judgment. The defendant appealed to the circuit court, where a second trial on the merits was had, and the plaintiff again had judgment. On error to this court the objection for the first time was taken, that the justice had no jurisdiction of the case. The court held that the objection came too late, and that the party, by going to trial in the circuit court upon the merits, without raising any objection to prior proceedings, must be regarded as having waived any errors he might otherwise have taken advantage of. This case was approved and followed in Tower v. Lamb, 6 Mich., 362. In both cases there was a recovery beyond the jurisdiction of the justice, and the proceedings before the justice were void for want of jurisdiction. The defendants. in each case treated them as valid, and appealed them to a higher court where the jurisdiction was ample, and where, consequently, it was competent to waive the defect which existed below. In this case there was no defect below, and if it is competent for a defendant on appeal to waive such a defect by a mere failure to bring it to the notice of the court, still more clearly must it be competent for him by his express assent to waive that which only becomes a defect at all by relation back to the case as it stood before appeal taken. He has consented in an appellate court, to have the case put in this shape, and as the jurisdiction of that court is unlimited, his objection that the case is no longer the same is purely technical, and should not be allowed under the circumstances.