Michigan United Railways Co. v. Ingham Circuit Judge

On December 26,1907, Charles Daman, as administrator of the estate of Edward S. Daman, deceased, instituted a suit against relator and the city of Lansing to recover the pecuniary damages sustained by *479the death of said Edward, his son. The cause of action was based upon the concurrent negligence of the two defendants. January 10, 1908, the relator filed its individual plea of the general issue. On February 27, 1908, the city of Lansing filed a like plea. In June, 1908, the cause came on for trial; and, in view of the ruling of the respondent, at the close of the proofs that the city was not liable, and both counts of the declaration being founded on a concurrent liability, the relator could not be held alone, the plaintiff withdrew a juror, and submitted to a nonsuit. No formal order was made, and the case stood as though no trial had been had. July 27, 1908, an amended declaration was filed, including two new counts, alleging the individual liability of the relator alone and at the same time the respondent entered an order allowing such amendment. On the 29th day of December, 1908, relator filed its demurrer to the amended declaration. On January 25, 1909, plaintiff in said suit filed a motion to strike said demurrer from the files. February 8, 1909, respondent granted the motion. February 5, 1909, relator filed in this court his petition for an order to show cause why respondent’s order should not be vacated, and he be required to enter an order reinstating said demurrer. Respondent’s order was based upon Circuit Court Rule 10, subd. a, providing in part that:

‘ ‘ If such amendment is made after plea or demurrer, such plea or demurrer shall stand as the plea or demurrer to the amended declaration, unless the defendant shall, within ten days after receiving such amendment, file another plea or demurrer.”

The rule fully supports the conclusion of the circuit judge; and the application for the order is denied.