The provisions of the statute applicable *693to this case are sections 782, 789, 1 Comp. Laws 1897. They read as follows:
“Sec. 782. In every action where the title to land shall in anywise come in question, the defendant may give notice thereof, under the general issue, upon the return day or any adjourned day of such action, and he may also give notice as in other cases of any other matter of defense.”
“Sec. 789. If the judgment in such suit in the circuit ■or district court shall be for the plaintiff, he shall recover double costs; if it be for the defendant (other than judgment of nonsuit), and the. presiding judge of the court before which the issue is tried shall certify that the title to lands did not come in question, the defendant shall not recover costs, but shall pay costs to the plaintiff.”
We think the learned circuit judge was clearly in error. When the defendant has removed his case to the circuit coui't under this law, the statute contemplates that the trial upon the merits should be had in that court. The proper practice in these cases is that followed in Dolahanty v. Lucey, 101 Mich. 113, and Newcombe v. Irwin, 55 Mich. 620, and many other cases which might be’ cited.
The writ will issue, directing the circuit court to set aside the order of dismissal, and to proceed with the trial of the case.
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