Shank v. Woodworth

Grant, J.

Suit to recover $13.11 for goods sold and delivered. Plaintiff recovered verdict and judgment in justice and circuit courts.

1. The plea was the general.issue. In the circuit court the case was continued over one term. At the next term, the case being ready for trial, defendant asked leave to amend her plea by giving notice of the statute, of limitations. The motion was denied. This was within the discretion of the circuit court, and will not be reviewed upon appeal. Ripley v. Davis, 15 Mich. 75 ( 90 Am. Dec. 262 ).

2. It is urged that the evidence shows a claim barred by the statute of limitations, and that for this reason the court should have directed a verdict for the defendant. The statute can only be taken advantage of by plea. Whitworth v. Pelton, 81 Mich. 101 .

3. It appears that plaintiff was in partnership with his brother when these goods were sold, that the firm sued the defendant, that the parties appeared, and on July 7, 1887, the justice made the following entry upon his docket: “The parties to this suit having settled the matters in issue since last adjourned day, this suit, on motion of the plaintiffs, was discontinued, with costs to the plaintiffs, taxed at $2.10.” It is insisted that this was a bar to the present suit. A discontinuance by the plaintiff is not a bar to another suit. If there was a settlement, the justice’s docket was not evidence of it. The statute does not require this entry. The justice testified that the settlement was made out of court, and he knew nothing *644 about its terms. Tucker v. Rohrback, 13 Mich. 73 ; Franks v. Fecheimer, 44 Mich. 177 .

The judgment is affirmed.

The other -Justices concurred.