Black v. Spears , 209 Mich. 1 ( 1920 )

Brooke, J.

(after stating the facts). In this court it is contended that the court was in error in holding that recovery under the first count was barred by reason of the adjudication in the case of Spears v. Black, supra; likewise in error in holding that recovery under counts two and three was barred by the statute of limitations. We will consider the last question first. Subdivision 3 of section 12323, 3 Comp. Laws 1915, provides:

“Actions against sheriffs for the misconduct or neglect of themselves, or their deputies, actions for trespass upon lands, for assault and battery, for false imprisonment, for malicious prosecution * * * shall be brought within two years from the time the cause of action accrues and not afterwards.”

Subdivision 2 of said section provides:

“Actions to recover damages for injuries to person or property shall be brought within three years from the time said actions accrue, and not afterwards.”

The law relative to the limitations of • actions in force prior to the passage of the 1915 act will be found in section 9728, 3 Comp. Laws 1897, which provides:

“Sec. 1. The following actions shall be commenced within six years next after the cause of action shall accrue, and not afterwards, that is to say: * * * All actions of replevin and trover, and all other actions for taking, detaining, or injuring goods or chattels; all other actions on the case, except actions for slanderous words, or for libels.”

The time therefore within which an action for malicious prosecution could have been commenced prior to the passage of the 1915 act was six years. It is earnestly contended on the part of plaintiff that counts two and three of the declaration are distinctly counts “for the recovery of damages for injury to property,” and cannot properly be construed as they were by the learned trial judge: “As counts for malicious prosecution.” . It is perhaps unimportant to determine the technical meaning of the language employed by the pleader in those two counts. Reduced to their final analysis they charge the oppressive and unlawful execution of a process admittedly legal in its issuance, but assuming the construction of the trial judge to have been correct, we are of opinion that he was in error in holding that recovery under counts two and three was barred by the statute of limitations. Chapter 9 of the judicature act deals with the limitations of actions. Section 9 (3 Comp. Laws 1915, § 12319) of the chapter provides:

“All actions and rights shall be governed and determined according to the law under which the right accrued, in respect to the limitations of such actions or right of entry.”

This is a general provision and in our opinion affects all actions whether personal or involving real estate. Inasmuch as plaintiff’s right of action, if he has any, accrued on January 24, 1914, and his action was started on January 22, 1917, it must be held under the provision of section 9 to have been commenced seasonably. It is strenuously urged on the part of defendants and appellees that the case should be affirmed under the provisions of section 28, chap. 50, of the judicature act (3 Comp. Laws 1915, § 13763). This position is predicated upon'the alleged fact that upon Monday following the seizure of plaintiff’s stock on the preceding Saturday, the stock was tendered back to plaintiff who declined to accept its return with the remark: "You bought something,” and the further contention, apparently uncontradicted, that the stock was tendered back to plaintiff on February 12th in writing.

A careful reading of this very voluminous record convinces us that after the seizure of the stock on the writ of attachment, defendant in that suit, plaintiff in this, deliberately sought to create a situation from which he might reap a profit. Upon the stand he denied the unconditional tender of the stock to him on the Monday following the seizure, thus raising a question of fact for the determination of the jury.

We are constrained to hold that the fact that he attempted to capitalize the original wrong of defendant, if there was one, is not a bar to his recovery for such damages as naturally and properly resulted from the alleged wrongful act. It seems plain from this record that the defendant William J. Spears was present when the seizure was made, aiding and advising the undersheriff in his act. Under such circumstances defendants would be liable for such damages, if any, as would naturally flow from any oppressive execution of the process. The subsequent conduct of the plaintiff in refusing to accept a redelivery of his stock, when, and if, tendered, should be considered by the jury in passing upon the question of damages,.but should not be held to destroy the cause of action unless the jury should find that the .tender was made at a time when no damages could have resulted.

The judgment must be reversed, and a new trial ordered, with costs to plaintiff.

Moore, C. J., and Steere, Fellows, Stone, Bird, and Sharpe, JJ., concurred. Justice Kuhn took no part in this decision.