text:
    PEOPLE, ex rel. ATTORNEY GENERAL, v. GRAND RAPIDS STICKY FLY PAPER CO.
    1. Quo Warranto — Judgment ón Pleadings — Error—Questions Considered.
    On error to review a judgment of ouster, rendered in quo warranto proceedings pursuant to a motion for judgment on the pleadings, the questions proper to be considered arise upon the practice followed and upon the information and plea.
    2. Same — Application for Leave to File — Hearing.
    The information having been filed pursuant to leave granted after hearing and contest, none of the matters produced at the hearing, except the information, are before this court on error.
    3. Same — Statute—Authority to File — Presumption—Security for Costs.
    Where the attorney general obtains leave to file an information in the nature of quo warranto against a private corporation, to determine its corporate existence, it will be assumed'that he is acting under the last clause of section 9950, 3 Comp. Laws, providing for the filing of such informations in every case in which satisfactory security for costs is furnished.
    4. Same — Judgment on Plea — Propriety.
    Where the plea to an information in the nature of quo warranto against a private corporation, to determine its corporate existence, admits that it became, and for more than a year remained, insolvent, a judgment of dissolution is properly entered oh the pleadings (§§ 9762, 9950, 9961, 3 Comp. Laws).
    Error to Kent; Wolcott, J.
    Submitted February 8, 1906.
    (Docket No. 109.)
    Decided May 24, 1906.
    Quo warranto proceedings by the people of the State of Michigan, on the relation of John E. Bird, attorney general, against the Grand Rapids Sticky Fly Paper Company to determine its corporate existence. There was judgment, of ouster, and respondent brings error.
    Affirmed.

      It is set out in the information, which was filed by leave of the court, that respondent is a corporation organized in December, 1902, under the provisions of Act No. 232, Pub. Acts 1885, and amendatory acts, for the purpose, expressed in its articles, of ‘ ‘ the manufacture, purchase, and sale of fly paper and all materials, tools, machinery, and appliances convenient, necessary, or suitable to such business, and the making and dealing in all other articles and products which may be conveniently handled in connection with such fly paper business,” the business to be carried on in Grand Rapids, in Michigan, where its office was located, for the term of 30 years; that it entered upon said business and in November, 1903, became and was insolvent, and so continued for a period exceeding one year; that in October, 1903, the O. & W. Thum Company, which was, and ever since has been, a corporation organized under the same legislative provisions for the purpose of manufacturing and selling sticky fly paper and its ingredients, and castor oil, and was, and is, engaged in such business at Grand Rapids, aforesaid, purchased and acquired seven-eighths of all the stock, preferred and common, of respondent corporation, and in November, 1903, •further acquired, through W. W. Hyde, acting as its agent and trustee, the remaining one-eighth of such stock, and so became and now is owner of all of the capital stock of respondent corporation and has control of the corporation, which is deprived of all power to manage and control its business except by and through the said the O. & W. Thum Company, which last-mentioned company had no Tight or authority in law to so acquire and hold said stock; that such purchase and acquiring of stock left respondent without lawful officers and those who were before its officers severed their connection with the company; that, prior to the occurrences just related, the respondent and the O. & W. Thum Company were in competition with each other and the stock of respondent was só disposed for the purpose of avoiding and suppressing competition in the business in which said the O. & W. Thum Company is engaged.

      It is further averred: That after the aforesaid disposition-of stock the assets of the respondent corporation were •sold, on an execution, by the sheriff, to said W. W. Hyde, purporting to act as trustee for certain creditors, but really for said the O. & W. Thun? Company. That respondent discontinued and abandoned its business. That it made no report to the secretary of State in the year 1904, prior to March 1st of that year, and did not intend so to do. That on April 20, 1904, a majority of the last board of directors of respondent did make and file in the office of the secretary of State the following document:
    “Grand Rapids, Mich., April 12, 1904.
    “We the undersigned, being a majority of the last board of directors of the Grand Rapids Sticky Fly Paper Company, do hereby certify that the attitude of said corporation towards the State of Michigan has been changed, in that all of the property and assets of said corporation have been sold and said corporation is now ■out of business.
    (Signed) “ Philip H. Travis,
    “ “ Albert G. Dickinson,
    “ “Joseph H. Brewer, •
    “ A majority of the last board of directors.”
    The facts already related are claimed to amount to, and to have been intended to amount to, ancbto operate as, a surrender of the corporate rights of respondent.
    It is further alleged that after the happening of the ■events already related, and on November 30, 1904, a corporation named like respondent was organized, and for the same purpose, and entered upon said business; that on December, 29, 1904, the O. & W. Thum Company transferred to each of four persons named one share of the • common stock of respondent, the remaining 41,476 shares • of common stock and 6,750 shares of preferred stock of respondent company being held by W. W. Hyde as trustee for the O. & W. Thum Company; that a stockholders’ meeting was held, a board of directors elected, officers elected by said board, and that the respondent now claims •never to have been legally dissolved, never to have surrendered its charter, and that it is now engaged in carrying on the business which it was organized to do; that this business is the same as .that carried on by the O. & W. Thum Company, and that the result is an unlawful combination to prevent competition and to create and enforce restrictions upon trade and commerce. Violation of the provisions of Act No. 355, Pub. Acts 1899, and of the laws of the United States, is charged. The proceeding is instituted under the provisions - of section 9950, 3 Comp. Laws, and a judgment that the rights, franchises, and privileges of respondent may be held and adjudged to be forfeited and surrendered and the corporation dissolved is prayed for.
    To this information it was pleaded that respondent was, on August 1, 1903, insolvent, and has since that date carried on no business, except in winding up its- affairs; that it has manufactured no fly papei or other product since August 1, 1903; that its stockholders, all of them, in the fall of 1903, sold and conveyed to W. W. Hyde all of its capital stock, he acting as trustee for the stockholders of the O. & W. Thum Company, after which respondent proceeded in good faith to close up its business, sell its assets, and pay its debts; that since August 1, 1903, respondent has engaged in no'business in competition with the O. & W. Thum Company; that the purchase of the capital stock of respondent was not made for the purpose of avoiding, suppressing, or preventing competition or for any illegal or unlawful purpose; that a large portion of the property of respondent was not sold on execution at the time mentioned in the information or at any time, but respondent, at that time, had several thousand cases of sticky fly paper which were outside the State; that it had a leasehold interest in property, which was not levied on or sold; that the pretended sale of its books of account, accounts receivable, and trade secrets were wholly ineffectual; that respondent did not discontinue and abandon its business, and the same was not taken over and absorbed by the O. & W. Thum Company, and its said alleged trustee, Hyde. It is denied that it intentionally omitted to file a report in 1904, prior to March 1st, and denied that the certificate filed was by authority of the O. & W. Thum Company. It is admitted that Wesley W. Hyde, trustee for certain creditors of respondent, assented to the filing of a certificate, but denied that he assented to the form, substance, or effect, of the one filed. It is denied that the Grand Rapids Sticky Ply Paper Company, alleged to have been organized November 30, 1904, was duly organized, since it assumed the name of respondent, contrary to.the statutes of the State; that the O. & W. Thum Company did not, on December 29, 1904, transfer or pretend to transfer to persons named in the information each one share of stock, and the remainder of the stock is not held by the said company. It is said that the new board of directors and new officers were elected by respondent’s stockholders for the sole purpose of closing the affairs of respondent and paying its debts, and the action taken solely in the interests of respondent and its creditors and not in the.interest of the O. & W. Thum Company or any other corporation or person. It is further pleaded that respondent has never, since the sale of its stock, claimed that it was engaged in carrying on the business for which it was organized any further than that it was engaged in selling its property, collecting its credits, and paying its debts; that it has now no property excepting its books of account, accounts receivable, trade secrets, and leasehold. Its debts have, except certain disputed claims amounting to $200 or $300, been paid, it has sold no fly paper since the fall of 1904 except 240 cases, and has none for sale now on hand; that it has proceeded diligently and in good faith to wind up its affairs.
    With the plea is a demurrer in the form following:
    “And the said respondent comes and defends the wrong and injury, when, etc., and says that the last two clauses of said information, and the matters therein contained in manner and form as the same are therein stated and set forth,’ are not sufficient in law for said plaintiff to have or maintain his aforesaid action thereof against this respondent, and the said respondent is not bound by law to answer the same because there is no allegation in said clauses or either of them, or in any part of said information, that this respondent is engaged in carrying on the business of the manufacture, purchase, and sale of fly paper and the materials, tools, machinery, and appliances, convenient ánd necessary or suitable to such business and the making and dealing in all other articles and products which may be conveniently handled in connection with such fly paper business, or any allegation that this respondent is engaged in carrying on any part of the business for which it was organized. And because the said two clauses or any other part of the said information do not contain any allegation of any fact showing a combination with the O. & W. Thum Company of any kind, or a combination of capital and skill to prevent competition in the making, manufacturing, and selling of fly paper, or to create and carry out restrictions in trade and commerce in fly paper or in restraint of trade and commerce between and among the several States of the United States, in violation of Act No. 255 of the Public Acts'of the State of Michigan for the year 1899, and in violation of public policy and of the laws of the United States. Also, that the last two clauses of said information are in other respects uncertain, vague, contradictory, and unintelligible, and that the said respondent is not bound by the laws of the land to answer the same, and this it is ready to verify. Wherefore by reason of the insufficiency of the last two clauses of said information in this behalf, the said respondent prays judgment, and that the said information may be dismissed, and the said relator barred from having or maintaining his aforesaid action thereof against this respondent, etc.”
    Without other pleadings, the relator moved for judgment for the following reasons:
    “1. Because said respondent’s plea admits that in the fall of 1903 all of the stock of said respondent was acquired by Wesley W. Hyde as trustee for all of the stockholders of the O. & W. Thum Company, a competing corporation, and admits that said Wesley W. Hyde, as such trustee, still holds substantially all of said stock, and shows that said corporation is absolutely controlled by said Hyde, as such trustee, contrary to law and public policy.

      “2. Because the control of said respondent by said Hyde as trustee for all of the stockholders of said the O. & W. Thum Company, a competing corporation, necessarily operates in restraint of trade and competition, and in furtherance of monopoly, and constitutes an illegal trust under the laws of the State of Michigan, and is against the public policy of this State, and a violation of the anti-trust act of the United States, and a misuser of the charter of said respondent.
    “3. Because the information filed against said respondent alleges, and said respondent’s plea does not deny and therefore admits, that since the fall of 1903 said respondent has been without legal directors and officers, and that all of its then officers and directors ceased to be stockholders therein and severed their connection therewith in the fall of 1903, and that no other directors or officers were attempted to be elected until December, 1904.
    “4. Because said respondent’s plea admits that fora period of more than one year said respondent wholly neglected to have either directors or officers.
    “5. Because it is alleged in said information and not adequately denied by said respondent’s plea that said respondent did not make and file in the office of the secretary of State of the State of Michigan the annual report required to be filed in the year 1904 prior to March 1st, and that the neglect and refusal to file said report was intentional.
    “6. Because said information alleges and said respondent’s plea does not adequately deny, and therefore admits, that on, to wit, April 20, 1904, a majority of the last board of directors of respondent filed the certificate of dissolution set forth in said information with the authority of Wesley W. Hyde, trustee, for all of the stock of said respondent.
    “7. Because the said information alleges and the plea of said respondent does not deny, and therefore admits, that said respondent oh, to wit, the 25th day of November, 1903, became insolvent and so continued for a period exceeding one year.
    “8. Because the plea of said respondent avers that it became insolvent August 1, 1903, and has since then wholly abandoned and discontinued the business for which it was organized, and has been engaged in winding up such business.
    “This motion is based upon the information filed by said relator and the plea filed by said respondent thereto, now on file in said cause.” ^
    A motion to strike this motion from the files was denied. Judgment was entered pursuant to the motion, the judgment entry containing the following recital:
    “It appearing to the court from the information filed in said cause and the respondent’s plea thereto that in the fall of 1903 all of the stock of said respondent was acquired by Wesley W. Hyde, as trustee for the stockholders of the O. & W. Thum Company, a competing corporation, and said Hyde, as such trustee, still holds all of said stock except four shares of ten dollars ($10.00) each of the common stock of said corporation, and after the acquisition of all of said stock by the said Hyde as such trustee, the said respondent had no officers or directors whatever'for a period of more than one year and that no other directors or officers were attempted to be elected until December, 1901; and until after another corporation of the same name had been organized, and that said respondent did not make and file in the office of the secretary of State of Michigan the annual report required by law to be filed in the year 1901, prior to March 1st, and that a majority of the last board of directors of said respondent, on, to wit, April 20, 1901, filed in the office of' the secretary of State a certificate certifying that the attitude of said corporation toward the State of Michigan had changed in that all of the property and assets of said corporation had been sold, and that said corporation was out of business, and that on or about the 25th day of November, 1903, said respondent became insolvent and so continued for a period exceeding one year, and that for a period of about two years said respondent has wholly abandoned and discontinued the business for which it was organized except to wind up such business.”
    Respondent brings the case here by writ of error.

      Hyde, Earle & Thornton, for appellant.

      Bundy, Travis & Merrick, for appellee.
   Ostrander, J.

(after stating the facts). The questions proper to be considered and determined arise upon the practice followed and upon the information and plea. Extended statements of facts, entirely outside of the record presented to this court, appear in the briefs, and are made the basis for much that is said by way of argument. As an example, a quotation from the brief for respondent is here given:

“The closing appeal in relator’s brief, though untrue in statement of facts, does at last get down to the real question here. That question is: Shall respondent be dissolved and be prevented from using the- mails in closing up its business, solely because the new illegal corporation wants the exclusive use of the name, Grand Rapids Sticky Fly Paper Company ? All other questions raised by relator are mere masks behind which the real question has always lurked. Dickinson et al. got their money for their stock, and then Dickinson and perhaps some of the others went into the same business, as they lawfully might. But they illegally assumed respondent’s name for their new company. ' When the post office refused to deliver to the new company mail that came addressed ‘Grand Rapids Sticky Fly Paper Company,’ and when, after a contest in the post office department, it adhered to that decision, then this suit was brought in the -name of the people on relation of the attorney general, not to test the right of the respondent to the exclusive use of its name, but on the pretense that respondent had violated the antitrust laws. And then, having got into court, this pretense was abandoned. (We do not say that the attorney general was at all a party to this conduct.) The case is here in control of the new illegal corporation. Its counsel have had the sole management of it.” '

In various ways the briefs afford the information that an animated contest was made upon the hearing of the motion for leave to file the information.' None of the matters then produced, unless it may be the information itself, are before this court. The statute provides:

“It shall be the duty of the attorney general, whenever he shall have good reason to believe that the same can be established by proof, to file such information in every case of public interest; and also, in every other case in which satisfactory security shall be given to indemnify the people of this State against all costs and expenses to be incurred thereby.” 3 Comp. Laws, § 9950.

It is assumed that the information was filed upon the authority of the last clause of the section of the statute quoted.

It is complained that judgment was rendered on the motion of relator, and that the demurrer of respondent to certain parts of the information' was not regularly brought on for hearing; that the motion for a judgment amounted to .abandonment by relator of all charges in which the public has an interest, and that the case should be treated by this court, for this reason, as one not of pub-' lie interest, and as one now resting upon charges which would not have warranted the interposition of the attorney general nor have secured permission to file the information. These objections relator answers by saying that the plea of respondent admits facts which may be, and by the court were, treated as conclusive evidence of acts of surrender, misuser, and nonuser; that, if this court is of opinion that the admitted facts sustain a forfeiture, the judgment of the trial court must be affirmed, even though this court would not, as a court of original jurisdiction, have declared the forfeiture. Precisely what questions are open to review on error in proceedings of this nature, where the attorney general and the court "below have both exercised discretion in permitting the institution of the proceeding, we need not determine. We are of opinion that in this case the plea confesses acts, of respondent which are by statute made ground for its dissolution. It is charged that it became, and for a period of more than one year remained, insolvent. The fact is. admitted by the plea. It is provided by the statute (3 Comp. Laws, § 9762) that as a consequence “it shall be deemed to have surrendered the rights, privileges and franchises granted by any act of incorporation, or acquired under the laws of this State, and shall be adjudged to be dissolved.” There is statute sanction for the filing of an information against a corporation “whenever it shall have done or omitted any acts which amount to a surrender of its corporate rights, privileges and franchises.” 3 Comp.- Laws, § 9950. And 3 Comp. Laws, § 9961, states the judgment which shall, in such a case, be rendered. See People, ex rel. Attorney General, v. Bank of Pontiac, 12 Mich. 527.

The motion for judgment may be treated as a demurrer to the plea. The facts admitted by the plea amount, in law, to a surrender by respondent of its corporate privileges, generally, and it cannot be held that it was error on the part of the trial court to so determine. People, ex rel. Crawford, v. Molitor, 23 Mich. 341. The judgment is, therefore, affirmed.

It is proper to add, in view of the averments in the information and the plea, concerning a corporation organized in November, 1904, which assumed the name of respondent, that the. judgment in this proceeding does not determine or establish the rights or privileges of that corporation. - Whether the provisions of 3 Comp. Laws, § 8534, do or do not insure to a corporation, dissolved by order of court, the use of its name in closing its affairs, is' a question which does not arise upon this record.

Blair, Montgomery, Hooker, and Moore, JJ., concurred.


source: Caselaw Access Project

author: Blair, J.

license: Public Domain

text:
    QUINNIN v. QUINNIN.
    Mortgages — Foreclosure — Deeioienoy — Execution— Limitations.
    After a decree of foreclosure was filed in 1888, a personal decree for. a deficiency was granted on petition in 1895, but no execution was issued thereon until 1904. Held, that the execution was barred by lapse of time and was properly vacated on petition.
    Appeal from Shiawassee; Smith, J.
    Submitted February 8, 1906.
    (Docket No. 107.)
    Decided May 24, 1906.
    Bill by Mary E. Quinnin against Alexander Quinnin, Hallock Orsland, and others, to foreclose a mortgage: On petition of Alexander Quinnin to set aside an execution and levy for a deficiency. From a decree for petitioner, defendant Orsland appeals.
    Affirmed.

      Stewart & Heald (Francis A. Stace, of counsel), for petitioner.

      Franklin L. Lord, for appellant.
   Blair, J.

Complainant’s husband, the appellee, purchased of Samuel J. Brown a hotel property with the furniture, on January 14, 1886, and gave back a bond, and mortgage, signed by himself and his wife, for $8,800. The complainant signed the mortgage as well as the bond, merely as the wife of the appellee. Afterwards, on April 20, 1886, the appellee sold the property to defendant Mary E. Wilson, who assumed and- undertook to pay the bond and mortgage, and the appellee, with his wife, executed a conveyance thereof to said Mary E. Wilson. After this, and about December 6, 1886, Samuel J. Brown assigned to the complainant an interest in the bond and mortgage, to the amount of $4,800.

On April 6, 1887, the complainant commenced this suit to foreclose the mortgage, and on February 25, 1888, a decree was made. Both complainant and Brown appealed to this court from that decree, each claiming that her and his interest respectively took precedence of the other. The case is reported as Quinnin v. Brown, 72 Mich. 304. And this court decreed, on November 1, 1888, that complainant should be fully paid before (anything should be paid to Brown, 'affirming the decree below in all other respects. Under the decree as modified by this court, the property was sold, March 23, 1889, by a circuit court commissioner, to Samuel J. Brown, and from the proceeds the complainant was paid in full, and the commissioner reported a deficiency of $4,403.95. Nothing further was done in the case until December 5, 1894, when Samuel J. Brown assigned all his interest in the decree to the appellant.

August 13, 1895, the appellant filed his petition in this case, stating the assignment to him, and that he had assigned an interest therein to Jeremiah Lynch, and praying that he and Lynch be substituted as defendants for Brown, and also setting forth that there was a large deficiency (without saying how much), and praying a personal decree against Mary E. Wilson and the appellee, which petition was granted by an order made September 3, 1895. The appellee claims that no notice of the petition or of the hearing thereof was given to him. Jeremiah Lynch subsequently died, and the appellant now has all his interest in the decree. Nothing more was done until June 17, 1904, when appellant caused an execution to be issued and levied on the lands of the appellee. On October 28, 1904, the appellee filed his petition to vacate the execution and the proceedings thereunder, and also to vacate the order on which the execution purports to have been issued. In his petition the appellee claims as the ground upon which he asks relief:

“1. Because he was released from all personal liability by Brown.

“2. Because the answer claiming the benefit of a cross-bill by Brown was never served on him, and he was never served with any subpoena or process to answer the same, or notice thereof, and never did appear thereto, and said answer claiming the benefit of a cross-bill was never taken as confessed by him.

“3. Because the original decree of foreclosure does not decree or adjudge that he is liable for any deficiency.

“4. Because the order for execution for the deficiency made September 3, 1895, was made without any service of notice upon him.

“5. Because the issuing of the writ of execution after the lapse of over 15 years after the making of the decree as modified by this court, and more than eight years and nine months after the making of the order of September 3, 1895, without any further showing or notice, was irregular and not in accordance with the laws of this State.”

Appellant contends that appellee’s petition should have been dismissed, since a final decree cannot be modified or vacated by petition. Conceding the correctness of appellant’s position in this regard, it was competent for appellee to attack the validity of the execution upon the ground that it was barred by lapse of time. The decree in this court was made November 1, 1888, and was filed in the circuit court November 19, 1888. The execution in question was issued June 17, 1904. The execution was invalid, and was properly vacated by the circuit court. Shelden v. Barlow, 108 Mich. 375; Smith v. Pegg, 111 Mich. 232. It is unnecessary to discuss the other questions raised.

The decree of the circuit court is affirmed, with costs of both courts to appellee.

Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.


author: Montgomery, J. Blair, J.

text:
    DETROIT UNITED RAILWAY v. SMITH.
    1. Specific Performance — Laches.
    Where the purchaser in a contract for the conveyance of land was in actual occupancy of the land to the knowledge of all the parties concerned, and a demand for a deed would) have been unavailing because of the refusal of the vendor’s successors in title to convey, the failure to make such demand for several years after the execution of the contract was not laches preventing the vendee from afterwards enforcing specific performance.
    2. Contracts — Mutuality.
    A contract, by which the owner of land agrees to convey a portion of it for a railroad right of way, in consideration of the payment of a certain sum per acre, on compliance with certain conditions as to crossings, iencing, etc., is not void for want of mutuality.
    ”3. Witnesses — Competency—Transactions with Decedents.
    On a bill by a railroad company against certain heirs to enforce specific performance of a contract, by which their ancestor agreed to convey certain land for a right of way, testimony of complainant’s agents, who negotiated the contract, as to what occurred at the time, is incompetent (§ 10212, 3 Comp. Laws, Act No. 30, Pub. Acts 1903).
    4. Equity — Trial—Effect of Verdict.
    On a bill for the specific performance of a contract to convey land the verdict of a jury is merely advisory.
    5. Specific Performance — Execution of Contract — Mental Competency — Evidence.
    On appeal from a decree granting specific performance of a contract to convey land, evidence examined, and held, to show that the vendor was mentally competent at the time the contract was executed.
    Appeal from Oakland; Smith, J.
    Submitted February 9, 1906.
    (Docket No. 122.)
    Decided May 24, 1906.
    Bill by the Detroit United Railway against Dennis Smith, Alice Smith, Elizabeth Axford, and others, for the specific performance of a land contract, and to restrain the prosecution of actions at law. From a decree for complainant, defendants Smith and Axford appeal.
    Affirmed.

      Geer, Williams, Martin & Butler, for complainant.

      George O. Kinsman, for appellants.
   Montgomery, J.

This is a bill filed for specific performance. Saron Beardslee was in his lifetime the owner of a farm in Oakland county, through which ran a highway known as the Old Territorial Road. The complainant’s predecessor, the Detroit, Rochester, Romeo & Lake Orion Railway, contemplated the construction of an electric railway following the line of the highway, but, desiring to build on private right of way, sought a right of way from occupants extending three rods westerly from the center line of said highway.

On the 13th of August, 1899, Saron Beardslee conveyed to complainant’s predecessor such a right of way across his farm. Later it was thought desirable to locate the track on the easterly side of the highway as it passed through Beardslee’s farm, and also to have a right of way four rods in width from the center of the highway. Negotiations were opened which culminated, on October 24, 1899, in an agreement signed by Mr. Beardslee, by which he agreed to the change in location, and agreed to convey the four-rod strip in consideration of a payment of $35 per acre for the additional rod, and subject to the same conditions as to crossings, fencing, etc., as were embodied in the deed of August 13th. It was provided that the deed was to be given when the company had laid its tracks. Authority was given to the company to proceed to build its road. Saron Beardslee died November 9, 1899. The railway having been completed, and complainant, having succeeded to the rights of the Detroit, Rochester, Romeo & Lake Orion Railway, files this bill against the legatees under his will and those claiming under them, to specifically perform the contract of October 24th. The court below granted complainant relief but on condition that certain grades and crossings be perfected, and gave no costs to either party. The defendants Dennis and Alice Smith and Elizabeth Axford appeal.

The claims of appellants are best' stated in the language of the brief: It is the claim of the defendants that the complainant has no right to the relief prayed in its bill of complaint for the following reasons:

First. That at the time of the alleged execution of the contract in question by Saron Beardslee, he, Saron Beards-lee, was not in a condition mentally to understand and comprehend the nature of the contract.

Second. That John Winter and Oliver H. Lau fraudulently took advantage of the mental condition of Saron Beardslee at the time the contract is alleged to have been made, and fraudulently put or caused to have placed his name to the contract.

Third. That there was laches on the part of the complainant in attempting to have this alleged contract enforced and in bringing this action. •

Fourth. That the complainant never made any demand on the defendants for a deed, and never made any tender of the purchase price before this action was commenced; and never returned or offered to return the deed of August 13th, but retained possession of it, and still retains possession of it.

.Fifth. That, if the contract is found to be a valid and binding contract in consequence of its execution by Saron Beardslee, there has been no such compliance with the terms thereof on the part of the complainant as to entitle it to a decree of specific performance.

Sixth. That the contract is not mutual in its operations as between the parties to it, and specific performance cannot be enforced in favor of the complainant.

There has been no such laches as to bar the complainant’s remedy. During all the time since the construction of the track soon after the contract was made complainant and its predecessor have been in,the actual occupancy of the strip to the knowledge of all parties concerned. The demand for a deed would evidently have been without avail as the appellants have seen fit instead of disclaiming or demurring specially to contest complainant’s right to a deed and to follow the contest through two courts.

The court below found a substantial compliance except in some minor details, and imposed such equitable conditions as compensated for any dereliction of complainant in that regard.

The contention that there was no mutuality is answered by Welch v. Whelpley, 62 Mich. 15. See, also, Bigler v. Baker, 40 Neb. 325 (24 L. R. A. 255).

The first two questions above stated are all which remain to be considered. The circuit judge, on defendants’ motion, impaneled a jury, which found that Saron Beards-lee was mentally competent when the contract was made. The circuit judge also reached the same conclusion,and also negatived in his finding the contention of defendants as to fraud. The defendants contend that the circuit judge, permitted the jury to consider testimony which was incompetent under section 10212 of the Compiled Laws, as amended by Act No. 30 of the Public Acts of 1903. The testimony referred to was that of the agents of the contracting company who negotiated with Beardslee for the contract. We think their testimony was incompetent under the statute cited. The verdict of the jury was, however, at most, only advisory. The circuit judge was not bound to order a jury in the first instance, nor to accept its finding when made. Maier v. Wayne Circuit Judge, 112 Mich. 491; Detroit National Bank v. Blodgett, 115 Mich. 172. The circuit judge having determined the case on its facts, and an appeal having been made from his decision, it is open to this court to decide the question of fact. We are satisfied that the circuit judge reached the correct conclusion. We reach this decision although the witnesses who express an opinion as to the mental competency of Beardslee testify that they do not believe that he was competent on the 24th of October.' We base our conclusion on the facts and circumstances surrounding the transaction and on the subsequent conduct of the interested parties. Saron Beardslee’s two sons-in-law were present on the day the negotiations were had, and assisted in staking out the proposed right of way strip. It would appear from their testimony that the chief controversy arose over a difference of $15 per acre between the asked and the offered price of the strip. Afterwards Saron Beardslee proceeded to his house, and a meeting was had with the agents of the company, the contract was signed in the presence of Saron Beardslee’s son, John Beardslee, who signed the contract as a witness. The company then went on, graded the road, and laid its track at an expense of nearly $14,000, with no protest or claim other than .that made by some of the defendants that the road was not being built according to the contract. No one asserted that there was no contract because Saron Beardslee was incompetent. The case in this feature closely resembles Burt v. Mason, 97 Mich. 127. As was said of similar conduct in that case, These acts are the most persuasive evidence of his competency.”

The decree is affirmed, with costs.

Grant, Ostrander, and Hooker, JJ., concurred.

Blair, J.

I concur upon the ground that the appellants are estopped to assert the incompetency of Saron Beardslee. Burt v. Mason, 97 Mich. 127; Norfolk, etc., R. Co. v. Perdue, 40 W. Va. 442.


author: Montgomery, J.

text:
    O’CONNOR v. CARPENTER.
    1. Constitutional Law — Dub Process — Taz Titles — Notice — Sufficiency.
    A notice by a tax sale purchaser to the owner of the original title which complies with section 140 of the general tax law, but which makes no reference to section 143, as amended by Act No. 128; Pub. Acts 1901, and concludes with the statement that if the payment demanded is not made, the party giving the notice will institute proceedings for possession of the land, does not constitute due process of law, and is ineffectual to bar the owner from contesting the tax title as provided by said Act No. 128.
    2. Same — Statute—Validity.
    Section 143 of the general tax law, as amended by Act No. 128, Pub. Acts 1901, is an attempt to compel one who is in full possession of his property, and wljo thereby makes the most positive assertion of his rights, to resort to a court, not to gain his own, but to restrain another from asserting an unwarrantable claim, and is therefore unconstitutional as a deprivation of property without due process of law.
    3. Same — Non jurisdictional Defects.
    The-statute not being a curative act, it.cannot be sustained as amounting to a prohibition against raising a question of the validity of a tax title based on a defect arising out of an omission of an act which might originally have been dispensed with.
    Case made from Ingham; Wiest, J.
    Submitted February 13, 1906.
    (Docket No. 131.)
    Decided May 24, 1906.
    Ejectment by William O’Connor against Frank L. Carpenter and others. There was judgment for plaintiff, and defendant Carpenter appeals.
    Reversed.

      Frank L. Carpenter, in pro. per.

      Thomas, Cummins & Nichols, for appellee.
   Montgomery, J.

Plaintiff brought ejectment against appellant and three other defendants for an undivided half of lot 10 of Seymour’s subdivision of the S. W. \ of section 10, city of Lansing, according to plat thereof, which premises the plaintiff claims in fee. The defendant admittedly held the original government title. The plaintiff’s tax title was admittedly invalid originally because of. his failure, on making the purchase, to pay the taxes then assessed against the land.- See Hughes v. Jordan, 118 Mich. 27. The plaintiff relied upon section 143 of the tax law (Act No. 229, Pub. Acts 1897), as amended by Act 128 of the Public Acts of 1901, as precluding the defendant from raising the question of the validity of his tax deed, the plaintiff having shown the service upon the original owner of the notice given by him as purchaser of the tax title, which notice complied with section 140, Act No. 229, Pub. Acts 1897.

It is claimed by the appellant that the title to the act of 1901 is not broad enough to cover the provisions of the act itself, but the most important question is whether, assuming that the title is sufficiently broad .to cover the statute in its terms, the method provided for defeating the title of the original owner is due process of law. The provision is:

“Every person personally served with the notice provided for [by section 140], * * * who shall refuse or neglect to pay or tender to the purchaser as aforesaid the sum provided for in said act within the time therein limited, and. who shall have neglected within the said six months to commence suit to set aside the said tax deed shall thereafter be barred from questioning the validity of such tax title or tax deéd mentioned therein.”

It is significant that the notice given to the owner of the original title contains no reference to this amended section, nor does the notice in terms require the owner to take any steps to test the right of the purchaser of the tax title within six months or any other stated time. Indeed, so far as any implication could arise from the terms of the notice, it would be that no necessity would arise for action on the part of the real owner and occupant. The notice concludes with the statement that, if the payment demanded is not made, the party giving the notice will institute proceedings for possession of the land. Such a notice to one not versed in the law might induce a feeling of security rather than excite concern or apprehension. One owning and occupying land, knowing his title to be good and being assured by a claimant that unless unwarranted demands were complied with an action would be instituted to test the title, might well await in security such action. Is a notice, calculated on its face to lead the occupant into a feeling of security, due process of law by which the title of the true owner can be divested by mere inaction ? It is obvious that, as no notice which, in terms calls for any action is given, the only process of law is the statute itself. It is as though the statute had provided that all who own and possess lands against which an identified person claims a tax title, must institute proceedings to attack such tax title within six months. Such is not due process of law. It is an attempt to compel one who is in full possession of his property and who thereby makes the most positive assertion of his rights, to resort to a court, not to gain his own, but to restrain another from asserting an unwarrantable claim. In Cooley on Constitutional Limitations (6th Ed.), p. 449, it is said:

“One who is himself in the legal enjoyment of his property cannot have his rights therein forfeited to another for failure to bring suit against that other within a time, specified to test the validity of a claim which the latter asserts but takes no steps to enforce.”

See, also, Groesbeck v. Seeley, 13 Mich. 329.

It is argued that while the statute may be held not to amount to due process of law in so far as it purports to give validity to a void tax title, the invalidity of which arises out of a jurisdictional defect resulting from a failure to do some act which could not have been dispensed with, it may still be sustained as amounting to a prohibition against raising a question of the validity of a tax title based on a defect arising out of an omission of an act which might originally have been dispensed with. We are not able to make this distinction. The statute in question is not a curative act. It purports to be a statute of limitations. It makes no distinction between tax titles of varying degrees of validity. The attempt is to prohibit the owner and occupant from attempting any contest after the lapse of a certain length of time. This prohibition purports to be based on the owner’s laches rather than on the nature of the tax title. Nothing in the statute purports to cure defects in such tax title. The effort is to prohibit the true owner from revealing those defects after a certain date.

-It results, from the views above expressed, that, the judgment must be reversed, and a new trial ordered.

McAlvay, Grant, Blair, and Moore, JJ., concurred.


text:
    WILCKE v. DUROSS.
    1. Judgment — Equitable Relief — Jurisdictional Defect — Lack of Service.
    Where, in. a suit in justice’s court, process was by mistake served upon defendant’s daughter of the same name, instead of upon defendant, and defendant did not appear, the judgment founded thereon is void, and is properly set aside in chancery, though defendant knew of the mistaken service on the day it was made, and was kept advised by counsel of the progress of the case.
    2. Equity — Jurisdiction—Amount Involved — Lien on Land.
    Chancery has jurisdiction to set aside adjudgment and execution for less than $100 where the execution has been levied and constitutes a lien on land of much greater value.

      3. Certiorari — Propriety —Justice’s Judgment — Service on Wrong Person.
    Certiorari is not appropriate to review a justice’s judgment, founded on process mistakenly served on defendant’s daughter of the same name, since the return could not show th© defect.
    4. Equity — Costs—Discretion op Court.
    Complainant in a bill to set aside a judgment will be allowed only actual disbursements, where she had actual knowledge of the mistake in serving process which invalidated the judgment, and though she did not appear, was kept fully advised of the progress of the case, and made no objection until a transcript had been filed in circuit court and levy made on her real estate.
    Appeal from Wayne; Mandell, J.
    Submitted February 14, 1906.
    (Docket No. 171.)
    Decided May 24, 1906.
    Bill by Lucy Wilcke against Joseph Duross and Henry Weber, copartners as Duross & Weber, and Henry A. Dickson, sheriff, to set aside a judgment and execution. From a decree dismissing the bill, complainant appeals.
    Reversed, and decree entered for complainant.

      Emil W. Snyder, for complainant.

      Hang & Yerkes, for defendants Duross and Weber.
   Montgomery, J.

The defendants Duross and Weber instituted a suit in justice’s court to recover of complainant a demand of $65.47. A return of a constable showed service upon complainant. Duross and Weber proceeded, to take judgment for their claim and costs, and later took a transcript to the circuit court, caused execution to be issued, and placed in the hands of defendant Dickson, as sheriff, who levied the same upon property of complainant of the value of $2,000 or more. Complainant thereupon served notice on Duross and Weber, and also upon the sheriff, stating that the judgment was void for the want, of personal service upon her.

Complainant soon after filed this bill setting up the above facts, and also that she had a just and meritorious defense to the claim of Duross and Weber as she was advised by counsel. She prayed that the judgment be set aside and for general relief. An issue was made upon the question of service, and the answer also contained a demurrer clause.

The circuit judge in his opinion found the facts as follows :

“Through error on the part of the constable, the summons of the said cause was served upon the daughter of the said complainant, a person by the same name as the complainant. The complainant was informed by her daughter of the service upon her of the said summons on the evening of the service thereof. It appears that the complainant consulted with an attorney, and was advised to pay no attention to the said suit. Complainant was kept advised of the progress of the suit by the attorney; knew of its pendency, and knew that judgment had been entered against her, and took no steps whatever to protect her rights or guard her interests. Some time during the fall of 1904 levy was made upon her real estate in the city of Detroit, and she thereupon filed this bill: ”

but refused relief on the authority of Finn v. Adams, 138 Mich. 258.

The circuit judge in applying that case proceeded upon the understanding that the judgment there involved was void. This is a mistake. That judgment was admittedly good at law, and it was sought to set up equitable grounds cf attack. In this case no jurisdiction was obtained to render judgment as against complainant. That a remedy exists in equity to relieve against such a judgment in a proper case cannot be doubted. 2 Freeman on Judgments (4th Ed.), § 495.

The objection that $100 is not involved is answered by the fact that one purpose of the bill is to relieve property of much greater value from a cloud. Matteson v. Matteson, 132 Mich. 516.

Certioiari would not have been an appropriate remedy, as no return would have disclosed the true facts. O'Connor v. White, 124 Mich. 22.

The complainant was entitled to relief. The testimony shows, however, that complainant knew of the service on her daughter on the day it was made, that an attorney was consulted on her behalf at once, and that instead of appearing and making objection she permitted the case to proceed to judgment, and permitted the transcript to be sued out, and permitted the levy to be made before taking any proceedings. While we cannot say that she by her inaction conferred jurisdiction upon the justice, we do-hold that when one voluntarily chooses a remedy which is designed or the necessary effect of which is to impose-large costs upon his adversary, when a simple, inexpensive remedy is open, the court will, in the exercise of its discretion as to costs, take into account the oppressive conduct of the complainant.

The decree will be entered for complainant, but without costs of the lower court, and for actual disbursements only in this court, exclusive of a solicitor’s fee.

McAlvay, Grant, Blair, and Moore, JJ., concurred.


author: Grant, J.

text:
    PEOPLE v. CHRISTIAN.
    1. Public Lands — Trespass—Criminal Law — Intent—Necessity —Statutes.
    By amending section 1394, 1 Comp. Laws, providing for the punishment of “willful” trespasses on State lands, by omitting the quoted word, the legislature disclosed a clear intention to dispense with the element of intent or willfulness, which it was entirely competent to do. (Aot No. 310, Pub. Acts 1903.)
    3. Limitation of Actions — Statute—Validity—Reasonableness —Tax Homestead Lands. „
    Act No. 84, Pub. Acts 1903, limiting to six months the time within which action may be brought to annul the State’s title to lands theretofore deeded to the State as State tax homestead lands is not invalid asprescribing an unreasonable period.
    3. Criminal Law — Evidence—Best Evidence — Degrees of Secondary Evidence.
    Where respondent on trial for trespassing on State land offers to prove by parol the contents of a letter he claims to have received from the commissioner of the State land office and lost, it is error to reject his testimony on thé ground that a letter-press copy of the letter may be found at the office of the commissioner, since there are no degrees of secondary evidence.
    Exceptions before judgment from Alcona; Connine, J.
    Submitted February 15, 1906.
    (Docket No. 214.)
    Decided May 24, 1906.
    Frank Christian was convicted of trespass under Act No.i^lO, Pub. Acts 1903.
    Eeversed.

      Henry K. Gustin, for appellant.

      John E. Bird, Attorney General (Charles W. McGill and George L. Hauser, of counsel), for the people.
   Grant, J.

The respondent was convicted under Act No. 210, Pub. Acts 1903, of inducing and directing another to cut and remove certain timber from State tax homestead lands. The statute provides that every person not lawfully authorized, who shall enter upon or induce or direct any person to enter upon such lands and cut timber therefrom, shall be deemed guilty of a felony, and be punished by imprisonment in the State prison for a term not exceeding two years, or by a fine not exceeding $500, or by both such fine and imprisonment.

The act which this amended (1 Comp. Laws, § 1394) provided for the punishment of a “willful ” trespass, making it a misdemeanor, punishable by imprisonment for not more than one year, or by a fine not exceeding $500, or both.

1. The main question in the case is: "Was it necessary for the people to show the intent to commit a trespass, or to induce another to do it ? It is admitted that the trespass was committed by the direction of the respondent, that' the State had a tax deed, and that it was recorded in the office of the register of deeds in the county where the land trespassed upon was situated.

Respondent claims that he relied upon a quitclaim deed from some third person, without any examination of the title. The legislature evidently intentionally left out the ingredient of willfulness or intent. Experience had shown the difficulty in proving the trespass to be willful or intentional. It is of no consequence that the crime is called a felony. It might as well have been called a misdemeanor. People v. Rotter, 131 Mich. 250. In that case the punishment was not to exceed $500 or imprisonment not more than three years, or both, and the offense was termed a misdemeanor.

If the contention of the respondent be sustained, the statute is of little worth, because any one can purchase a quitclaim deed, which of itself is suspicious, and say he acted in good faith. It is just as competent for the legislature to make an act of trespass per se criminal as it is to make the opening of a saloon per se criminal. The saloon-keeper is responsible for the acts of his bartender, though he be ignorant of the act. The power of the legislature to do away with intent in such case is undoubted. People v. Longwell, 120 Mich. 311. In that case we said:

“ It is as easy for liquor dealers to employ clerks and agents who will carry out their instructions not to make prohibited sales as it is to employ those who will obey their instructions not to open their places of business contrary to law.”

See, also, 12 Cyc. p. 148. It is just as easy for lumbermen to ascertain the title to the lands from which they propose to take timber, especially where the title is a matter of public record. Trespasses upon public lands have become notorious. Considering the law previous to the amendment, and as amended, and the particular mischief to be remedied (Michigan Dairy Co. v. Runnels, 96 Mich. 109), we think there is no difficulty in reaching the conclusion that the legislature intended to eliminate the question of intent. See, also, Clark & Marshall on the Law of Crimes (2d Ed.), p. 63; Caldwell v. Ward, 83 Mich. 14. A similar statute was so construed by the supreme court of South Dakota. State v. Dorman, 9 S. Dak. 528. The court in that case say that it is ruled by State v. Sasse, 6 S. Dak. 212, wherein the respondent was convicted of selling intoxicating liquor to a minor, and it was held that good faith was unimportant. See, also, People v. Rotter, supra, and authorities there cited.

2. The people introduced the State tax homestead deed, dated August 25, 1896, and recorded September 23, 1896, in the office of the register of deeds of Alcona county. The deed recites that the lands were bid off to the State at the tax sales in the years 1877 to 1895, inclusive, and -that they were, in compliance with the law, deeded to the State as tax homestead lands. The people further introduced the State tax land list, which showed the various years for which they had been bid off to the State. The trespass was committed in December, 1904.

It was urged that it was the duty of the people to introduce all the tax proceedings upon which this tax deed was based, and to show their validity. The statute (Act No. 84, Pub. Acts 1903) imposes a limitation to the right to bring suit to six months from the time the act took effect. The act took effect in September, 1903. A like statute of limitations was held valid by this court. Semer v. Auditor General, 133 Mich. 569.

3. Error is alleged upon the refusal of the court to permit the respondent to testify to the contents of a letter he claims to have received from the commissioner of the land office some time in the fall of 1904, and which he claimed was lost. He claims that he “wrote the land, commissioner, asking him what claim they had to this land. I got a reply that they did not have any claim against that particular forty.” Before the judge ruled, upon the question, counsel for respondent stated that he had telegraphed for a certified copy of the letter-press copy of such letter, but had not received it. The court then held:

“ I think the formal objection is well taken. If there is a letter-press copy, and that letter in the office of the official who wrote it, it could be easily procured.”

We are compelled to hold that this was error.

There are no degrees in secondary evidence, and for this reason the conviction must be reversed.

McAlvay, Blair, Montgomery, and Moore, JJ., concurred.


text:
    CARPENTER v. AUDITOR GENERAL.
    1. Appeal and Error, — Decisions Reviewable — Finality.
    An order striking a bill from the files is a final determination of the right of the complainant to pursue her remedy against the movant, and is appealable.
    2. Same — Review—Failure to Appeal — Acquiescence.
    The failure to appeal from a decision sustaining a demurrer to a bill is an acquiescence therein.
    3. Judgment — Chancery Decree — Tax Sales — Collateral Attack.
    Chancery decrees under which lands were sold for taxes cannot be collaterally attacked.
    4 Equity — Bill—Motion to Strike — Propriety.
    A bill, the main purpose of which is to set aside chancery decrees under which complainant’s lands were sold for taxes, but which does not state a case for relief on either of the grounds provided by section 70 of the general tax law, is subject to a motion to strike from the files.
    5. Same — Operation and Eepect.
    Where some of the defendants have answered a bill and others have been defaulted, the striking of the bill from the files on motion of another defendant in his own behalf does not affect the defendants who had answered, or who had been defaulted and the suit remains in the trial court for such action as it may deem proper.
    Appeal from Osceola; Me Alvay, J.
    Submitted February 16, 1906.
    (Docket No. 180.)
    Decided May 24, 1906.
    Bill by Libias L. Carpenter against Perry F. Powers, auditor general, and others, to set aside sales of land delinquent for taxes: On motion of defendant auditor general to dismiss tbe bill. From an order granting tbe motion, complainant appeals.
    Affirmed.
    On August 3, 1903, tbe complainant, tbe owner of tbe original title to tbe lands described, filed her bill of complaint against the auditor general, State treasurer, and ten other parties. The bill covering 18 pages of typewriting was not paragraphed as required by Chancery Rule No. 1. The defendants, the auditor general and State treasurer, moved to strike the bill of complaint from the files for that reason. Before the day fixed for hearing the motion complainant divided her bill into 39 paragraphs, with a prayer containing 12 paragraphs. The defendants, auditor general and State treasurer,. then demurred mainly upon the following grounds:
    1. That the bill was multifarious, setting forth several separate and distinct causes of action.
    2. That the defendant State treasurer was not responsible for the alleged illegal action of one of his employés in purchasing tax titles on the complainant’s land.
    3. That the invalidity of the various assessments mentioned in the amended bill, hnd all questions pertaining thereto, were foreclosed by the decree of the court in the regular proceedings to enforce tax liens, and can only be inquired into by a petition in those proceedings.
    4. That the several allegations were so vague, indefinite, uncertain, argumentative, and conflicting, and without any substantial and material basis therefor, that the defendants were unable to specifically make answer thereto.
    5. That the complainant has been guilty of laches in making no effort to see that the several assessments were proper, and has made no attempt to pay the taxes.
    6. That she has a complete and adequate remedy under Act No. 229, Pub. Acts 1897.
    The defendants Savidge, Brambery, Rathbun, and Myers demurred for the same reasons. The demurrers were sustained by an order of the court, entered March 7, 1904, and the complainant given 20 days' in which to amend her bill of complaint. On May 19, 1904, an amended bill was filed to which defendants Brambery, Savidge, Rathbun, and Myers made answer. On June 1, 1904, the defendant the auditor general moved to strike the last-amended bill of complaint from the files for the reason that it did not avoid defects and imperfections alleged, and sustained as ground of demurrer to the first amended bill, except that the State treasurer was not made a party. This motion was granted, and from the order striking said bill of complaint from the files the complainant has appealed.

      Eugene Carpenter, for complainant.

      John E. Bird, Attorney General (Charles W. McGill, of counsel), for defendant Auditor General.
   Grant, J.

(after stating the facts). The order striking the bill from the files was a final determination of the right of the complainant to pursue her remedy against the auditor general, and was, therefore, a final order from which an appeal will lie. Webster v. Hitchcock, 11 Mich. 56.

The decision of the court in sustaining the demurrer is not before us. Complainant, not having appealed from that decision, has acquiesced therein. Her amended bill,

except in one point, viz., in eliminating the State treasurer therefrom, does not remedy the other defects for which the demurrer was sustained. We may say that one of the main purposes of the bill is to set aside the decrees of the court in chancery under which the complainant’s lands were sold. This cannot be done by collateral attack. Cook v. Auditor General, 124 Mich. 430; Monroe v. Winegar, 128 Mich. 309.

The bill is not one for leave to file a bill of review or a petition to open the decree for the correction of errors. Neither does the complainant bring herself within section 70 of the general tax law (1 Comp. Laws, § 3893), which provides that no sale shall be set aside after confirmation, except where the taxes were paid or the property was exempt from taxation. Neither is any want of jurisdiction alleged in the court wherein the decree was made. Berkey v. Burchard, 119 Mich. 101. It follows that the amended bill of complaint was properly stricken from the files as to the auditor general.

As to the other defendants who have answered, or who have been defaulted, the suit remains in the court below for such action as the circuit court may deem proper. The auditor general was the only party making the motion to strike from the files, and is the only party affected by the granting of the motion. .

Decree affirmed.

Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.


author: Blair, J. Blair, J.

text:
    CULVER v. SOUTH HAVEN & EASTERN RAILROAD CO.

    1. Appeal and Error — Decision on Review — Former Review-Law of the Case.
    The decision of the court on error is the law of the case for all subsequent reviews of the same case.
    3. Same — Review—Questions Considered — Exceptions—Necessity.
    Alleged error of the trial court in overruling a motion for new trial cannot be considered in the absence of exception to the ruling.
    3. Costs — Appeal—Prolix Record and Brief.
    Where the record and brief on error are unnecessarily long because of the attempt of plaintiff in error to raise questions decided upon a former review of the case, plaintiff in error will be permitted on reversal to tax as costs the expense of printing only such parts of the record and brief as the court deems necessary to raise the questions open for review.
    on rehearing.
    1. Master and Servant — Personal Injuries — Evidence —Question for Jury.
    In an action against a railroad company for injuries to a switehman, evidence considered, and held, to present a question for the jury whether the place on the track where a witness made certain measurements was the place where plaintiff was injured. ^ j.
    ‘2. Same —Evidence—Admissibility —Conditions at Place op Injury.
    Plaintiff claiming to have received his injury because of his having caught his shoe between a projecting fish-plate bolt anda spike in a tie, testimony of a witness as to measurements made from the spike hole after the accident, is not objectionable on the ground that the conditions were changed, as for the purposes of measurement they were the same.
    Error to Yan Burén; Carr, J.
    Submitted February 13, 1906.
    (Docket No. 120.)
    (Docket No. 3.)
    Decided May 24, 1906.
    Motion for rehearing granted July 24, 1906.
    Reargued October 4, 1906.
    Former opinion reversed October 29, 1906.
    Case by William Culver against the South Haven & Eastern Railroad Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      W. J. Barnard (Edward Maher, of counsel), for .appellant.

      Thomas J. Cavanaugh and L. A. Tabor, for appellee.

       Rehearing denied December 17, 1906.

   Blair, J.

This case has been previously before this 'Court, and is reported in 138 Mich. 443. Counsel for defendant then contended:

“ (1) The verdict was against the overwhelming weight of the evidence.

“ (2) That Culver was not in the exercise of ordinary care, being guilty of contributory negligence.

“ (3) That the defendant did not receive a fair trial, owing to misconduct.

(4) That the learned trial court erred in ruling upon evidence.

“ (5) That the learned trial court erred in charging the jury.”

In disposing of the case this court said:

“ 1 and 2 may be considered together. Was the verdict overwhelmingly against the weight of evidence? Can we say, as a matter of law, Culver was guilty of contributory negligence? Without going into details, we may say an examination of the record satisfies us the plaintiff presented a ease making it the duty of the trial judge to submit it to'a jury under proper instructions.

“3. This assignment of error relates to the conduct of plaintiff’s counsel during the taking of testimony and while presenting the case to the jury. We have no hesitancy in saying that if the conduct of Mr. Tabor, about which complaint is made, was the only improper conduct of counsel, we should reverse the case, and direct a new trial. The misconduct, however, was not confined to counsel upon one side. We do not feel it our duty to attempt from this record of nearly 300 pages to decide who-of the counsel was most to blame. We do say the conduct of Mr. Tabor on one side and Mr. Maher on the other, was such as ought not to be permitted in any court of record anywhere. * * *

“4. Did the court err in the admission of evidence? As a rule, he did not, but in one instance we think an error was made, which may have made a difference with the final result. * * *

“5. Did the trial judge err in his charge to the jury? He gave all of defendant’s requests to charge which it was proper for him to give. . With one exception, we think the remaining portion of his charge was a correct statement of the law.”

Notwithstanding this final determination of the law of this case, counsel for defendant now raise precisely the same questions, with a few additional ones, upon a record of 772 pages, including 330 assignments of errors, and present their argument in a principal brief of 194 pages and a reply brief of 76 pages.

The error in the charge referred to in our previous opinion was corrected upon the present trial, and the only rulings of the court which are open to review upon this record are those relating to the admission of evidence and the conduct of counsel. We think the court erred in permitting the witness Johnson to testify to certain measurements made from a spike hole long after the accident, without any showing that the condition of the track was the same as at the time of the accident. As this testimony was directed towards one of the most important issues of fact in the case, we feel constrained to reverse the case because of its reception.

Notwithstanding what was said upon the subject in the former opinion, counsel on both sides traveled outside the legitimate bounds of argument. We trust that upon the next trial of this case the circuit judge will, if necessary, adopt strenuous means to compel counsel to keep within their proper field of argument.

We cannot consider the alleged errors of the court in overruling the motion for a new trial, for the reason that no exceptions were taken to such denial. Ginn v. Coal Co., 143 Mich. 84. The great bulk of this record and of the briefs of appellant is unnecessary in consequence of the prior decision of this court, and for that reason we shall limit appellant’s taxation of costs for record and briefs to 100 pages of record and 30 pages of brief.

The judgment is reversed, and a new trial granted, with costs to appellant as above limited.

McAlvay, Grant, Montgomery, and Moore, JJ., concurred.

ON REHEARING.

Blair, J.

The judgment in this case was reversed upon the ground that the trial court erred in admitting testimony of measurements made by the witness Johnson long after the plaintiff’s injury, in the absence of evidence that the conditions remained unchanged. Upon plaintiff’s application, a rehearing was granted, and the case re-argued upon this single point. As the record stood at the time the ruling was made, we are still of the opinion that it was erroneous, but, after further consideration, we are satisfied that the error was ‘cured by testimony subsequently introduced. The testimony introduced by plaintiff tended to show that he was injured by catching his shoe between a projecting fish-plate bolt and a spike in a tie, at a joint of two rails, opposite a gap in the right of way fence east of a certain box factory. Johnson testified that he made his measurements “right opposite ” the break in the fence:

“Q. Where was it in relation to the point where Culver was injured ?

“A. I couldn’t tell exactly, not far from there.

“Q. Where was it in relation to a joint between the rails ?

“A. Bight close to a joint.”

Plaintiff’s witness, Bundy, testified that he saw the bolt and spike in question on the day of the injury: “I noticed a break in the board fence at about that point, almost opposite where I saw this. I noticed the box factory, and this was about 75 feet east of the box factory. It was at the third joint east of the box factory;” that the bplt was next to the joint on the west side, and the spike was two inches further north; that he went to this point the day after the accident, and the bolt and spike were gone. Defendant’s witness, Bitter, testified:

“I commenced work for the S. H. & E. Co., August 13, 1902, and I pulled spikes out of the ties wherever we found them, some of these old narrow gauge spikes. We found them in surfacing, but not very often. Prom August 18th, when I took charge of Boyer’s section here, up to and including this day of September, or until Boyer returned in October, there was no change in the condition of this track from Kalamazoo street west to the west end of the box factory.”

Defendant’s section foreman, Boyer, who had charge of the track where the injury occurred, testified that he was away at the time of the accident and did not go over the track again till October 18th.

“When I was down there working, I discovered a break in the fence. There is a break and a vacant space, and then it commences again. Why, I noticed right about north of this break in the fence to the west there must be a joint there somewheres. I noticed after I came back to work a spike hole right north of that joint; that was one of the old ties that was left at the time the track was spread and to spread the track, we removed the row of spikes that was south of the rail, and shoved the rail over. * * * I examined this particular tie to which .my attention has been called during the last trial and found the same tie there that was there before the accident and after the accident, and it had a spike hole in it when I last saw it. There was a spike hole in the track, yes, sir; but that was after I came back. * * *

Q. You found the same tie there then that was there before the accident and there after the accident, as you saw it?

“A. Yes, sir.

Q. And had it the spike hole in it when you last saw it?

“A. Yes, sir. ' * * * I don’t know that the spike hole was there on the day of the accident, no, sir. All I kno,w is I found a spike hole at the time that I last testified, and after the road was in the possession and control of other people, yes, sir.”

Defendant’s general manager and, later, superintendent, testified:

“I think I saw in the tie at the conjunction of two rails, at about the point indicated on the map by the letter ‘ A ’ a spike hole about six inches north of the south rail at that time.”

The letter A on the map was opposite the west end of the gap, which extended easterly from that point some 60 feet. '

It is argued that as there were at least two rail joints opposite the gap, and the testimony of Johnson did not point out which of the joints, 30 feet apart, he measured from, the testimony of the different witnesses is not so definite as to the locality of the joint as to show that they were testifying about the same joint that Johnson measured from. This argument was given some weight in our former consideration of the case, but, upon further reflection, we have concluded that the testimony presented a question of fact for the jury as to the identity of the point where Johnson made his measurements with the point where plaintiff and his witnesses claimed his. foot was caught by the bolt and spike. It cannot, of course, be claimed by plaintiff that no change was made-after the injury, since it is undisputed that there was no-such bolt and spike, as he claimed to have been caught by, at the point in question the day after the accident. But the removal of the spike would leave the spike hole, and, for the purposes of measurement, the conditions would be unchanged.

The judgment is affirmed.

McAlváy, Montgomery, Hooker, and Moore, JJ.s, concurred.


text:
    E. S. KNOWLES & SON v. CAVANAUGH.
    1. Replevin — Affidavit—Writ— Sufficiency — Names of Parties.
    An affidavit and process in replevin by a partnership are not so defective as to oust the justice of jurisdiction, though the names of the partners are not given, where the affidavit, by reference to the mortgage under which plaintiffs claim the property, sufficiently identifies plaintiffs.
    2. Justices of the Peace — Pleadings—Amendment—Statutes —Effect.
    Section 764, 1 Comp. Laws, does not take away from justices of the peace the power of granting amendments which they theretofore possessed, but confers upon parties in justice’s court the absolute right to amend the pleadings at any time before they are closed, leaving with the justice the discretionary power to permit amendments after the pleadings are closed which justices possessed before the passage of the-statute.

      8. Same — Special Appeal — Amendment at Circuit.
    Where defendant in replevin in justice’s court appears specially and moves to dismiss the cause on the ground that the individual names of the partners composing the plaintiff firm are not stated in the writ, notwithstanding which judgment oh the merits is rendered against him without amendment of the writ or declaration, and defendant takes a special appeal, the circuit court properly denies plaintiffs’ application to amend at the trial, since if an amendment was necessary at the circuit, it was equally necessary in justice’s court.
    4. Same — Statutes—Application.
    Sections 918 and 10268, Comp. Laws, authorizing amendments in circuit court in cases appealed from justices’ courts, do not apply to orders relating to questions properly raised by special appeal, but to general appeals only, where the cases are .to be tried upon the merits de novo.
    5. Pleading — Declaration—Duplicity.
    A declaration is bad which combines in one count a declaration in replevin with one in assumpsit for the balance due on a promissory note.
    ■8. Judgment — Pleadings to Sustain.
    A judgment, following a declaration which attempts to combine in one count a declaration in replevin with one in assumpsit on a promissory note, and adjudging plaintiffs entitled to the possession of the property taken under the writ, and giving them judgment for the balance due on the note, is void as without pleadings to support it.
    7. Justices op the Peace — Special Appeal — Amendments—Void Judgment.
    Where the judgment rendered by a justice of the peace is void, as without a supporting declaration, it is not error for the circuit court on special appeal to refuse an amendment of the declaration.
    ■8. Same — Questions Considered.
    It is not necessary that objections be made before the justice in order that they may be raised in an affidavit for special appeal.
    Certiorari to Jackson; Parkinson, J.
    Submitted Febuary 14, 1906.
    (Docket No. 158.)
    Decided May 24, 1906.
    Replevin by E. S. Knowles & Son, a copartnership, in justice’s court, against William J. Cavanaugh. There was judgment for plaintiffs and defendant took a special appeal to the circuit court. There was an order denying a motion to amend the declaration, and plaintiffs bring certiorari.
    Affirmed.

      F. A. Lyon, for appellants.

      D. P. Sagendorpk, for appellee.
   Blair, J.

This is an action of replevin commenced' before a justice of the peace. The affidavit for the writ contained, among other things, the following:

“E. S. Knowles & Son, of the township of Moscow, county of Hillsdale, being duly sworn, deposes and says: That he is one of the firm of E. S. Knowles & Son, doing-business in the .township of Moscow, county of Hillsdale, State of Michigan; that he makes this affidavit for and on behalf of himself and said son; that said E. S. Knowles & Son are entitled to said property by virtue of a certain chattel mortgage given by William J. Cavanaugh to E. S. Knowles & Son. ”

On the return day, the said E. S. Knowles and his son, Jay Knowles, comprising the firm, appeared before the. court with their attorney and declared orally, as follows::

“Wm. J. Cavanaugh, defendant herein, was summoned to answer E. S. Knowles & Son, plaintiffs herein, in a plea of replevin, wherefore the said defendant unlawfully detains certain goods and chattels, the property of said plaintiffs, by virtue of a certain chattel mortgage and note datéd May 31, 1904, of the amount of $93 upon which note there appears two indorsements, as follows: One dated October 18, 1904, for $10; and one dated November, 1904, Received by horse, $35, which chattel mortgage being given to secure the payment of said note. The mortgage being read and introduced as evidence upon which the plaintiff dated his claim. Mortgage being due, and after demand of payment of balance due on said note, which was refused by said defendant, the plaintiffs bring the action to recover possession of the property mentioned in said mortgage, and asked judgment for the amount due on note, and interest on same, and costs, attorney’s fees, and counsel fees, as provided for in said chattel mortgage, and the retention of said property and costs of this suit.”

As shown by the justice’s return, the defendant appeared specially by attorney and “motioned to dismiss the cause on the following objections:" Insufficient return of the officer; the copy served on defendant was not certified to, therefore, not a certified copy; also the names as they appear on the writ are not correct, the son’s name not being mentioned.” The justice rendered judgment in favor of plaintiffs, as follows:

“The court finds the defendant did unlawfully detain said goods and chattels, and assess the damages sustained by the plaintiffs by the unlawful detention of said goods and chattels, fifty-two and thirty-five one-hundredths dollars ($52.35), and costs of three and thirty-five one-hundredths dollars ($3.35), and direct that the plaintiffs may retain the property taken for the purpose of selling same and collecting the above-mentioned damages and costs.

“ And on the 29th day of April, 1905, I rendered judgment in favor of E. S. Knowles & Son, plaintiffs, and against the defendant for fifty-two and thirty-five one-hundredths dollars ($52.35), damages, and three and thirty-five one-hundredths dollars ($3.35) costs of suit.”

Defendant removed the proceedings to the circuit court by special appeal, relying upon, the objections made in justice’s court and others set forth in the affidavit for appeal. When the special appeal came on to be heard in the circuit court, plaintiff’s counsel, as shown by the return of the circuit judge, asked leave to amend—

“The affidavit, process and other proceedings in said cause so that the individual names of said plaintiffs, namely, Ezra S. Knowles and Jay D. Knowles, copartners, doing business under the firm name and style of E. S. Knowles & Son, should appear therein as such plaintiffs, and also to amend the plaintiffs’ declaration so as to properly set forth the said plaintiffs’ said cause of action.

“ I further certify and return that the said defendant’s attorney then and there claimed and contended that said affidavit, process and other proceedings were fatally defective; that the court had no jurisdiction to hear, try and determine said cause; and that the said circuit court had no jurisdiction to grant or allow said amendments.

“I do hereby further certify and return that I, as said circuit judge, who heard said special appeal, did then and there overrule the motion and request of said plaintiffs’ counsel for leave to so amend said affidavit, process and other proceedings .in said, cause, and. did then and there grant said special appeal and rendered judgment quashing said affidavit, process and other proceedings and dismissing said cause, for the reason, and only for the reason, that I did not think that I, as said court, had the power to grant said amendments, but stated in open court that if I thought I had such power I would grant such leave to so amend such process, affidavit and other proceedings in said cause.”

The plaintiffs have- caused the proceedings to be removed to this court for review upon writ of certiorari.

We do not think that the affidavit and process were so fatally defective as to oust the justice of jurisdiction. The reference to the mortgage in the affidavit sufficiently identified the plaintiffs to authorize the justice to entertain jurisdiction. Barber v. Smith, 41 Mich. 143; Emerson v. Spring Co., 100 Mich. 131; Stever v. Brown, 119 Mich. 196; Beattie v. Hill, 60 Mo. 72.

We also think that counsel for appellants have placed the proper construction upon section 764, 1 Comp. Laws. It was not the intention of that statute to take away from the court the power of granting amendments, which it theretofore possessed, but rather to grant to the parties to a cause in justice’s court the absolute right to amend the pleadings at any time before they are closed, leaving with the court the discretionary power to permit amendments after the pleadings were closed which it possessed before the passage of the statute. Phelps Manfg. Co. v. Enz, 19 Conn. 58; Bennett v. Collins, 52 Conn. 1.

In the case before us, however, the justice was not requested to, nor did he, exercise his discretionary power to allow an amendment stating the names of the partners. •On the contrary, notwithstanding the objection of defendant’s attorney which squarely presented the point, plaintiffs’ attorney did not ask for an amendment, but asked for judgment on the merits upon the record as it stood, and final judgment was thereupon rendered upon such .record. It was not until the special appeal came on for hearing before the circuit court that any request was made for an amendment.

If, as seems to be conceded by appellants’ brief, an amendment stating the individual names of the partners was essential to the validity of a judgment for plaintiffs in the circuit court, such an amendment would be equally essential in justice’s court and the circuit judge would be justified in denying his authority to allow such amendment. The case before us differs from Stever v. Brown, supra, in that here there was no plea of the general issue, as in that case, to waive the objection, and if the objection was one that could be raised by special appeal, which we do not determine, it could not be obviated by amendment in the circuit court.

The statutes referred' to by appellants as conferring such authority, viz.-, sections 918, 1 Comp. Laws, and 10268,' 3 Comp. Laws, do not apply to orders relating to questions properly raised by special appeal but to general appeals only, where the case is to be tried upon the merits de novo. '

We think, however, that it was clearly necessary for plaintiffs to procure an amendment to their declaration, which sought to combine in one count a declaration in replevin -with one in assumpsit for the balance due on a promissory note.

The judgment followed the declaration, and not ■ only found that plaintiffs were entitled to the possession of the property taken on the writ, but gave them judgment for the balance due on the promissory note.

We think that the declaration conferred no jurisdiction to render the judgment. The judgment was void, and the court did not err in holding that he had no power to allow an amendment. Loranger v. Davidson, 110 Mich. 605.

While these objections were not made before the justice, they were properly raised in the affidavit for special appeal. Wright v. Russell, 19 Mich. 346.

The judgment is affirmed, with costs of this court to defendant.

McAlvay, Grant, Montgomery, and Moore, JJ.„ concurred.


author: MoAlvay, J.

text:
    HATT v. TOWNSHIP BOARD OF NAPOLEON.
    1. Highways and Streets — Discontinuance—Notice—Jurisdiction.
    Proceedings to discontinue a highway are void, as lacking-jurisdiction, where a life tenant of land affected by the discontinuance, who lives thereon with his tenant, is not served, with the statutory notice, though the tenant, who is also the reversioner, is served.
    2, Same — Necessity of Objection.
    It is immaterial that the life tenant takes no proceedings to-procure an adjudication of the invalidity of the proceedings,, since if the proceedings are invalid as to any of the parties, they are invalid as to all.
    Error to Jackson; Smith (Clement), J., presiding.
    Submitted February 14, 1906.
    (Docket No. 155.)
    Decided May 24, 1906.
    Certiorari by Uriah Hatt to review an order of the> township board of Napoleon township, and others, affirming an order of the highway commissioner discontinuing a highway. There was judgment for respondents, and relator brings error.
    Reversed, and proceedings quashed.

      D. P. Sagendorph, for appellant.

      Wilson & Cobb, for appellees.
   MoAlvay, J.

The proceedings in this case were begun before defendant J. E. Yining, commissioner of highways of the township of Napoleon, Jackson county, for the purpose of discontinuing a certain highway. From his determination of the necessity of such discontinuance and award of damages thereon, an appeal to the township board was taken under the statute by plaintiff, Uriah Hatt, and others, which appeal was heard before said township board and the action and award of the highway commissioner was affirmed. Appellant by certiorari re- , moved said matter to the circuit court for Jackson county, where the action of said township board was affirmed by said court; Hon. Clement Smith, circuit judge of the fifth circuit, presiding. The case is brought here by writ of error.

The material question in the case is whether the highway commissioner acquired any jurisdiction to act in the case in taking proceedings toward discontinuing this, highway. Among the parties claimed by appellant to be interested as owners and occupants of land through which this highway, sought to be discontinued, passed, was one Thomas Miles. It is alleged by the appellant, and admitted by the appellees, that said Thomas Miles was the owner of á life estate in this land upon which he resided. Thomas H. Miles was at the time tenant of Thomas Miles, and was also occupying this land; Thomas Miles living with him. No notice was served upon Thomas Miles by the highway commissioner, and he took no part in the proceedings, nor is he mentioned in the notice given by the commissioner, his affidavit of service of said notice, on his determination. Thomas Miles, after such determination, gave notice of his intention to remove the case by certiorari to the circuit court for Jackson county, but no further steps were taken by him. The commissioner had knowledge of the relation of Thomas Miles to this land. The record shows that in another proceeding to lay out a highway through this land, claimed to be owned by Thomas Miles and occupied as aforesaid, for the purpose of giving a road by which appellant could get out from his land after the road in question was discontinued, the highway commissioner served a notice upon said Thomas Miles on the same day he served notice of discontinuance upon appellant and others.

It is claimed by appellees that the tenant, Thomas H. Miles, was the person occupying these premises, and that service upon him was sufficient. This record shows that Thomas Miles was the owner of a life estate in part of this land through which the highway passed, and that ha also occupied it, and had occupied it for years. Tho statute requires that when land is occupied service shall be made upon the occupants. Failure to make service upon Thomas Miles was a fatal defect in the proceedings. The commissioner acquired no jurisdiction to proceed, and the township board was without jurisdiction. This court has so held. Wilson v. Township Board of Burr Oak, 87 Mich. 240. The fact that Thomas Miles is not complaining does not cure the irregularity. If as to any of the-parties the proceedings were invalid, they were invalid as to all. Brush v. City of Detroit, 32 Mich. 43.

It is not necessary to consider the other errors assigned. The judgment of the circuit court is reversed, and the proceedings quashed, with costs of both courts against the appellees.

Grant, Montgomery, Hooker, and Moore, JJ., concurred.