text:
    UDE v. FULLER.
    Automobiles — Highways and Streets — Contributory Negligence.
    In approaching a street crossing, plaintiff’s son, an infant of eighteen years, observed an automobile coming towards him from a side street at a high rate of speed. It was about one hundred feet away when he looked and he did not look again until he was ten feet away from the motor car. The day was clear. The view was unobstructed. He knew that it was dangerous to cross in front of a car so large and heavy as the one in question, but proceeded on his way without again observing the machine, and was struck and injured. Held, that his evidence failed to establish the son’s freedom from contributory negligence, and the court should have directed a verdict for defendant.
    Error to Kent; Connine, J., presiding.
    Submitted June 22, 1915.
    (Docket No. 100.)
    Decided July 23, 1915.
    Case by Samuel W. Ude against Clayton W. Fuller for damages caused by personal injuries to plaintiff’s minor son. Judgment for plaintiff. Defendant brings error.
    Reversed; new trial denied.

      Hatch, McAllister & Raymond-, for appellant.

      Edward N. Barnard, for appellee.
   Kuhn, J.

This is a personal injury case, brought by the plaintiff against the defendant for loss of services of plaintiff’s minor son and expenses incurred in caring for him on account of such personal injury. The son, while riding a bicycle, collided with an automobile driven by the defendant, at the junction of two public streets in the city of Grand Rapids. The accident occurred at noon on the 2d day of June, 1913, a bright, clear day. Henry Ude, the son, a young man 18 years of age, was going east on Oak street, west of Commerce avenue, and, according to his testimony, was riding on the south or righthand side of the street, about 2 feet from the curb. When he reached a point near the west curb of Commerce avenue, he saw the defendant driving an automobile on the east side of Commerce avenue about 100 feet away, going south at a high rate of speed — as he claimed, at the rate of 20 miles an hour. It appears that a building known as the Merchants’ Hotel was in the course of erection at the northwest corner of Commerce avenue and Oak street, and that building material was piled in the streets adjoining it. This is the reason assigned by the defendant for being compelled to drive upon the east side of Commerce avenue in driving south. The negligence complained of was that the automobile was being run at a righ rate of speed and that it was on the wrong side of the street.

On cross-examination Henry Ude described his conduct as follows:

“Q. How long did you look at the car?
“A. Just gave it a glance; saw it coming.
“Q.' And you saw it was coming fast or slow?
“A. Coming very 'fast.
“Q. And how long did you consider the question of whether you could get across in front of it?
“A. Why, just a minute. I could see that, where he was and where I was, coming at the rate of speed he should have, I could have got across any time.
“Q. That is what you thought. You said you supposed you could get across there, so you started?
“A. Why, certainly,
“Q. Did you increase or slacken your speed?
“A. I remained the same that I was going.
“Q. You remained the same?
“A. Going at the same speed I was going.
“Q. Did you look at the car while you were going?
“A. No; just the first time.
“Q. Did not pay any attention to that car, whether it slackened up or not?
“A. Why, no; not at the time.
“Q. Now, how close was the car to you the next time you saw it?
“A. About 10 feet away.
“Q. About 10 feet away, and you had your hat boxes in each hand, did you?
“A. Yes, sir; yes.
“Q. So that from the time you first saw the car, and concluded that you could go across in front of it, you did not look at the car again until it was about 10 feet from you?
“A. No, sir.
“Q. Where were you looking?
“A. Why, I was glancing around the other way, looking the other way, to see if there was anything coming from the other way.
“Q. Well, was there anything coming from the south?
“A. There was not.'
“Q. So that, when you started to cross that street, you knew that this car was coming down from the north, didn’t you?
“A. Yes, sir.
“Q. And you knew it was coming pretty fast, didn’t you?
“A. Yes, sir.
“Q. Did you increase or slacken your speed at all?
“A. I increased.
“Q. When?
“A. When I saw the car about 10 feet away from me.
“Q. Was that the first time you did anything to get out of the way?
“A. It was. * * *
“Q. And if when you started to go across the street, if you had looked up after you had first seen him, you could see him any time you looked at him, couldn’t you?
“A. Why, certainly.
“Q. There wasn’t any building material there to obstruct your view in any way?
“A. Not on the corner.
“Q. Any place to obstruct your view?
“A. No; there was not. * * *
“Q. Now, you say when you first saw that automobile it was going fast, do you?
“A. It was.
“Q. Well, you must have seen it move some distance to know whether it was going fast or slow, didn’t you?
“A. Well, a glance is enough to take that in.
“Q. Wéll, how long did you look at that when you saw that it was going fast?
“A. Gave it a glance, and that was all.
“Q. Just gave it a glance?
“A. I looked.
“Q. Well, how much faster was it going than you were?
“A. I could not say.
“Q. Well, you looked at it long enough to know that it was coming very fast, did you?
“A. Yes, sir. * * *
“Q. You were satisfied from a glance that the automobile was going fast, weren’t you?
“A. Why, certainly.
“Q. And you were going slow, weren’t you?
“A. Yes, sir. * * *
“Q. And was that the first time you looked when you got over to the corner?
“A. Yes; naturally, I looked to the corner.
“Q. No; I didn’t ask you-naturally. Was that the first time you looked at the corner.
“A. It was.
“Q. And you were just about to start across Commerce street then, were you?
“A. I was at the corner; yes.
“Q. You were at the west corner, going slow on your bicycle?
“A. Yes.
“Q. And you were north of the curb?
“A. Two feet. * * * '
“Q. But if you had paid any attention after that first glance at that automobile that was coming down there at that high rate of speed, you could have avoided this accident, couldn’t you ?
“A. I looked at this—
“Q. No; now, answer that question. You could have avoided this accident, couldn’t you?
“A. Yes, sir. * * *
“Q. You realized that auto was approaching that corner very fast?
“A. I did; yes, sir.
“Q. Before you started to cross?
“A. Yes, sir.
“Q. And then you started to cross and paid no more attention to it until it got within 10 feet of you?
“A. That is so.
“Q. And then you were in a place of danger, weren’t you?
“A. I was. * * *
“Q. Did you have a brake on your automobile, or on your bicycle?
“A. I do.
“Q. Safety brake?
“A. Yes; coaster brake.
“Q. Coaster brake. All you had to do is just push back on the pedals and it stopped your wheel?
“A. Yes, sir.
“Q. And you were going very slow?
“A. Yes, sir.
“Q. So that if you had made a glance or paid any attention to that automobile, after you first saw it, you would not have gone over in front of it, would you ?
“A. I would not.
“Q. You did not pay any attention, while you were going across there, to that automobile, after you saw it the first time, until you got yourself right in front of it, did you?
“A. I did not.
“Q. And you were going right across in front of the automobile ?
“A. Yes, sir. * * *
“Q. And yet you had it in your mind, when you looked at that car, that it was going at a high rate of speed?
“A.. I did.
“Q. A great, big car, wasn’t it?
“A. Yes.
“Q. And it is a dangerous thing to run in front of one of them, isn’t it?
“A. It is; yes.
“Q. You knew that?
“A. Yes, sir.
“Q. You had been riding around on the streets here on bicycles, hadn’t you?
“Mr. Barnard: Oh, that has all been gone over.
“Q. Haven’t you?
“A. Yes, sir.
“Q. And you know it to be a dangerous thing to get out in front of an automobile going at a high rate of speed, didn’t you?
“A. Yes, sir.
“Q. And there wasn’t any other thing on the street there to avoid, was there?
“A. There was not.
“Q. Nice, bright, clear day, was it?
“A. Yes; it was; yes, sir.
“Q. Right in the middle of the day?
“A. 12:05, about.”

It is urged by counsel for appellant that under this testimony it is very clear that Henry Ude was guilty of contributory negligence; and while the learned trial judge stated, after hearing this evidence, that he considered it a very close question, he submitted the question of the contributory negligence to the jury. In the instant case it appears beyond doubt that Henry Ude saw the automobile coming on Commerce avenue before he attempted to cross the street, when it was about 100 feet away, and that he continued on his way without looking again until he was within 10 feet of the automobile and it was too late for him to avoid the accident. In our opinion this situation presents a stronger case of contributory negligence than that presented to this court in Gibbs v. Dayton, 166 Mich. 263 (131 N. W. 544), in which case it was said:

“We are not prepared to hold as a matter of law that there was no evidence of negligence on the part of the automobile driver, but we are of the opinion that plaintiff failed to discharge the burden of proof resting upon him to show absence of contributory negligence on the part of decedent.
“The boy was experienced in the use of the bicycle and in riding about the streets in the course of his employment as a delivery boy. There was nothing to obscure his vision, and he had only the automobile and the other bicycle to avoid on a paved street 67 feet wide. If he had looked when he started to cross the street, he must have seen the oncoming automobile a few rods away, in which event it would have been negligent to attempt to cross directly in front of it. If he did not look until the automobile was upon him, he did not exercise common prudence. Zoltovski v. Gzella, 159 Mich. 620 (124 N. W. 527, 26 L. R. A. [N. S.] 435, 134 Am. St. Rep. 752). In view of this conclusion, it becomes unnecessary to .consider the other interesting questions presented by the briefs.”

In that case there was doubt as to whether the boy saw the oncoming automobile a few rods away, but here there is no question that the boy saw the oncoming car when it was still 100 feet away. We cannot escape the conclusion that it was conclusively shown by the .plaintiff’s own testimony that he failed to use that reasonable degree of care to avoid injury proportionate to the circumstances which the law makes essential to a recovery, and by his own negligence contributed to the accident, Stevenson v. Railway, 167 Mich. 45 (132 N. W. 451); Tolmie v. Taxicab Co., 178 Mich. 426 (144 N. W. 855). In our opinion this presents a clear case of contributory negligence, and, as it appears under the testimony of Henry Ude that the plaintiff cannot recover, the judgment is reversed, and no new trial granted.

In view of this conclusion, it is unnecessary to consider the other questions presented by the briefs.

Brooke, C. J., and Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.

The late Justice McAlvay took no part in this decision.


source: Caselaw Access Project

author: Kuhn, J.

license: Public Domain

text:
    ROGERS v. SAGINAW-BAY CITY RAILWAY CO.
    1. Evidence — Res Gestas — Hearsay—Exceptions to Rule.
    It is a general rule established by consensus of authority that the conditions necessary to permit in evidence statements in regard to a past occurrence, made by one who participated therein, are: first, that there is a startling occasion, startling enough to produce nervous excitement and render the utterance spontaneous and unreflecting; second, that the statement must have been made before there had been time to contrive and misrepresent; and, third, the statement must relate to the circumstances of the occurrence preceding it.

    2. Same.
    Where the only evidence of the manner in which the decedent was injured was the testimony of his son that dece- , dent informed him that defendant’s motorman started the street car on which he had been riding before decedent had removed, his foot from the step and while he was standing with one foot on the ground, and no testimony was offered to show that the accident had occurred immediately previous, and there was lack of proof whether plaintiff’s decedent had or had not lost control of his faculties, the trial court was correct in holding the evidence incompetent and in directing a verdict for the defendant.
    Error to Bay; Collins, J.
    Submitted June 22, 1915.
    (Docket No. 89.)
    Decided July 23, 1915.
    Case by Evelyn H. Rogers, as administratrix of the estate of John Rogers, deceased, for the unlawful killing of plaintiff’s intestate. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.
    Affirmed.

      De Foe, Hall & Converse, for appellant.

      Weadock & Duffy, for appellee.

       As to relative time of transaction and declarations to constitute them part of the res gestee, see note in 19 L. R. A. 733, and as to statements made by injured party, see note in 42 L. R. A. (N. S.) 952.

   Kuhn, J.

This action is brought by the plaintiff, as administratrix of the estate of John Rogers, deceased, against the defendant, to recover damages for injuries to the said John Rogers, which it is claimed resulted in his death; said injuries being alleged to have been caused by the negligent acts of the defendant company. On July 31, 1912, John Rogers, the deceased, was employed in the city of Saginaw on the west side, and his home was on the east side of said city, at the intersection of Washington and Carroll- streets, which is a distance of about two miles from the place of his employment. On this day he returned from his work between 5:30 and 6 o’clock in the afternoon. His home was situated at the southwest corner of the intersection of Washington street and Carroll street, where there is a double track of the defendant street car company on Washington street, and the car coming from the west side of the city passed north over Washington street on the east track.

The only evidence introduced in support of the plaintiff’s case was that of Reuben Rogers, a son of John Rogers, who testified that on the afternoon of the day in question he came out of the house between 5:30 and 6 o’clock, and saw his father coming from the northeast toward the southwest from Carroll street, which distance was measured to be about 150 feet, and the son estimated it would take about 25 seconds to walk that distance at the rate of speed his father was walking. The, deceased was limping and his face was drawn. At the same time the son noticed a car probably half a dozen car lengths from the corner of these two streets. He said to his father: “What is the matter, dad?” The latter replied: “That fellow started the car as I was getting off and jarred my hip.” The son thereupon assisted his father up to the porch of the house, where he seated himself in a chair. The son "testified that while his father was sitting there he noticed twitching of the face, and testified further as follows:

“Q. Did this conversation that started while he was on the walk continue as he came up onto the porch?
“A. Yes, sir.
“Q. State whether or not in that same conversation, as he approached and came up onto the porch, your father said anything further to you about his leaving the street car. You can answer that ‘yes’ or ‘no’ as to whether he stated anything further than you have said to us.
“A. Yes; he did.
“Q. Tell us, in his own language as near as you can remember, what else he said on the subject at that time?
“Mr. Weadock: Under the objection, your Honor.
“The Court: Yes; it will be under your objection and exception.
“A. He said that while he was in the act of alighting from the car one foot was on the running board and the other foot was nearly on the ground, and the car started and threw him to the pavement on his right hip.”

Mr. Rogers lived about four months after this injury. There was no proof of negligence on the part of the company other than that given' by the son Reuben Rogers, and no witnesses were produced who saw the accident, if any there were, or who had any knowledge of what occurred when Mr. Rogers was leaving the car, assuming that he did leave the car. At the close of the proofs the trial judge directed a verdict for the defendant, on the ground that the, testimony of the witness Reuben Rogers as to the statements made by his father was not admissible, because, under the circumstances of this case, they were not brought within the exception to the hearsay rule. The question of the admissibility of this evidence was also subsequently raised on a motion for a new trial, which, motion was denied. Counsel say that the only questions for our consideration are whether or not the testimony of Reuben Rogers is competent for the purpose of proving negligence on the part of the street railway company, or, in other words, proper as res gestse; and, second, if competent, Was there a question to be presented to the jury?

That the statement of decedent to his son — the only evidence in the case — is hearsay evidence of the fact asserted, is, from its very nature, indisputable. The only question we must decide is whether the trial judge was right in saying that it did not come within any exception to the rule excluding hearsay evidence as incompetent. It is the contention of the plaintiff that it does come within that exception which permits unsworn statements that are spontaneous exclamations to be received. But what is the basis of that exception, and what the nature of those statements? The exception is based upon the fact that such exclamations, by virtue of their origin, have a peculiar trustworthiness. It is well established by the authorities that the only conditions upon which such statements will be allowed in evidence are (1) that there is a startling occasion, startling enough to produce nervous excitement, and render the utterance spontaneous and unreflecting; (2) that the statement must have been made before there has been time to contrive and misrepresent; and (3) the statement must relate to the circumstances of the occurrence preceding it. 3 Wigmore on Evidence, § 1750 et seq.

But how can the second condition be met without direct and independent evidence of the time of the startling occasion with reference to the making of the ■statement? For aught that appears beyond the statement itself, the injury may have occurred three or four hours before the statement was made, and it does not appear that plaintiff’s decedent had lost at any time control of his faculties. In such an event, the element of spontaneousness is absent. And it is for the proponent to discharge the burden of proving spontaneousness, or the statement is rejected as hearsay. 16 Cyc. p. 1250. Had the plaintiff presented witnesses who could swear that' they saw the decedent on the street car in a normal physical condition, unhurt, shortly before the injury, it might with reason be claimed that then the condition of admissibility would have been met and the spontaneousness of the statement established. Manifestly, the decedent’s statement cannot be used for this purpose, because it has not yet been admitted. But, since the unsworn statement of John Rogers has not been proved to be a spontaneous exclamation, it is not within this exception to the hearsay rule. Not being within any other exception, it is objectionable and inadmissible as hearsay evidence. See White v. City of Marquette, 140 Mich. 310, 314 (103 N. W. 698), and Bernard v. Paper Box Co., 170 Mich. 238, 242 (136 N. W. 374, 42 L. R. A. [N. S.] 930), in which cases the element of spontaneousness was found wanting, though in both the time of the event was established. The question of the failure of proof as to the time of the happening of the event independent of the statement was considered in the well-reasoned case of State v. Williams, 108 La. 222 (32 South. 402), where it was said:

“Noble showed the time the statements were made with reference to the pulling out of the train, but the time at which Hebert was shot, with reference to that same fact, remained still to be ascertained in order to furnish the data upon which was to be tested the admissibility of the statements as res gestas. * * * Proof that Hebert’s declarations were made simultane.ously, or almost so, with the departure of the freight train, would still leave open for ascertainment the time those statements were made, with reference to that at which he was shot. The facts by and from which the admissibility of the statements as res gestae are to be tested have to be ‘testified’ to by persons cognizant of them. The admissibility itself of the statements being the very question at issue for decision, no part of them are to be used for the purpose of determining it. Counsel very correctly say: ‘There being no foundation for the admission of the declaration, it was used as its own foundation and was itself the basis on which it was admitted.’ ”

We think the case of Gilbert v. Railroad Co., 161 Mich. 73 (125 N. W. 745), is clearly distinguishable from the case now before us. In that case the testimony of the fireman of the engine was that he saw the brakeman lying on the rails at a distance from certain scales, where marks appeared in the snow, commencing at the scales and stopping where plaintiff’s decedent lay, indicating that plaintiff’s decedent had been dragged. The yardmaster testified that it showed where plaintiff’s decedent had been dragged, and that it' showed the hole in the scale in which plaintiff’s, decedent said he had caught his foot. These witnesses reached the decedent immediately after the injury, the time of which was established, and carried him about 400 feet to the depot, where the declarations as to the occurrence were made. In this case we find the corroborative evidence of eyewitnesses and the evidence of the physical surroundings further elucidated by the dying declaration of the plaintiff’s decedent. Under these circumstances these declarations were properly received as not objectionable under the hearsay rule, but were not, as in the instant case, the whole testimony in support of plaintiff’s case, unsupported and uncorroborated by a single further or additional fact or circumstance.

We are of the opinion that the learned trial judge reached a proper conclusion that the statements here involved came within no exception to the hearsay rule, and were therefore inadmissible; and, constituting the only evidence in support of the plaintiff’s case, by their exclusion there was nothing left in support of the plaintiff’s claim, and her right of action must therefore fail.

Judgment is affirmed.

Brooke, C. J., and Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.

The late Justice McAlvay took no part in this decision.


text:
    PEOPLE v. SCHELSKE.
    1. Desertion — Criminal Law — Statutes—Husband and Wife— Intent.
    Where a respondent accused of deserting and abandoning his wife and minor child lost his position in 1907, and, against the desire of his wife, found employment upon the farm , of his parents, returning at the end of the week to visit the family, and where, during his absence after his second visit, his wife moved to the home of her father nearly a mile away, and remained there, and both parties retained keys of the homestead and returned occasionally to it, and it appeared that the respondent called upon his wife a number of times after her removal until in 1912, when such visits ceased, also that he only provided $39 during the intervening period for support of her and child, the trial court was not in error in declining to direct a verdict for the respondent upon his motion and contention that the proofs showed desertion prior to the date when Act No. 144, Pub. Acts 1907, took effect.
    2. Same — Intent to Abandon — Support.
    It is an essential element of the crime of abandonment that a permanent separation was intended. As long as the husband was making contributions to the support of his family it could not be said that he intended to abandon them.
    3. Same — Nonsupport—Intent.
    Held, also, that the jury were warranted in determining that after respondent ceased to furnish support for his family he became guilty of the offense of desertion as defined by the statute.
    4. Same — Statutes—Repeal—Savins Clause.
    Although the accused contended that he had abandoned his family before Act No. 39, Pub. Acts 1903, had been repealed, and that he' could not be prosecuted under the statute relating to desertion, as amended by Act No. 144, Pub. Acts 1907, because it contained no saving clause covering pending prosecutions, he was rightly convicted under the later statute hy the jury, that found, as instructed, that he committed the offense after the later act took effect.
    5. Same — Evidence—Assault—Misconduct of Prosecutor.
    Although it did not appear that certain questions asked by the prosecutor as to trouble that respondent had had with his father and whether or not he had assaulted his father because of a controversy between them over respondent’s family difficulties were material, the action of the prosecutor in asking questions relative thereto was not such prejudicial error as to require the reversal of the conviction, as it was made to appear that what-was done by respondent was in defense of his wife and not against her.
    6. Same — Evidence — Immaterial Testimony — Other Prosecution.
    An attempt on the part of the prosecutor to put in evidence a warrant and other proceedings in the prosecution for the purpose of showing that respondent had made an agreement to settle matters between himself and wife in consideration that the prosecution be dismissed, that he failed to carry out the settlement, where the court admitted the evidence.for the purpose of showing certain dates concerning which various witnesses had given testimony, did not prejudice respondent and it was not error to permit the proof to stand as substantive evidence of the dates, not as proof of the facts desired to be shown.
    7. Same — Trial—Charge—Elements of Offense.
    Instructions to the jury as to the grounds upon which conviction could be based were not erroneous where the court charged that before the respondent could be convicted of the offense they must be satisfied beyond a reasonable doubt, that he not only refused to provide necessary and proper shelter, food, care, and clothing for his wife and child, but that he wilfully and unlawfully deserted and abandoned them; that this meant more than going away or a mere separation; that abandonment and desertion meant to be separated from his wife wrongfully and with the intention of not resuming the marriage relation; and, further, that the offense consisted of two elements, of (1) desertion, and (2) following the same up by neglecting to provide proper support.

      8. Same.
    No error occurred in the instructions to the jury where, after having advised the jury that the offense must include as a necessary element failure to provide necessary food, shelter, and clothing, the trial judge charged that the burden was upon the people to satisfy the jury of the two propositions: the fact of desertion, and the fact of abandonment. The omission of some of the elements stated in the prior charge was not so misleading as to prejudice the rights of the accused.
    Exceptions before sentence from Van Burén; Des Voignes, J.
    Submitted June 17, 1915.
    (Docket No. 104.)
    Decided July 23, 1915.
    Albert F. Schelske was convicted of desertion.
    Affirmed.

      Grant Fellows, Attorney General, Earl L. Burhans, Prosecuting Attorney, and L. M. Phelps, Assistant Prosecuting Attorney, for the people.

      Thomas J. Cavanaugh, for respondent.

       As to what amounts to nonsupport by husband within criminal statutes, see note in 49 L. R. A. (N. S.) 588.

   Kuhn, J.

The respondent is charged by the information filed in this case with having violated the provisions of Act No. 144, Public Acts 1907. It is specifically alleged that on November 1, 1912, and on divers days between that date and October 3, 1914, he wilfully and unlawfully deserted and abandoned his wife and minor child without providing necessary and proper shelter, food, care, clothing, etc. He was found guilty, and the case is brought here on exceptions be-, fore sentence.

The respondent and the complaining witness, his wife, were married in 1899, later divorced, and remarried in 1905. They lived in' respondent’s house in South Haven until the spring of 1907, when the respondent, who was a piano tuner by trade, lost his position. After discussing with his wife the situation and the course they should pursue, he went, against her wishes, to the farm of his father at Grand Junction (which is near South Haven) on April 25th, to obtain employment. He returned to South Haven to visit with his family the next two week-ends, and on May 7th his wife moved to her father’s home near Grand Junction, about three-fourths of a mile from where respondent was living, without any warning to him. She has remained there ever since. The home in South Haven is still furnished as it was then, and they have each stayed in it on occasional separate trips to South Haven, each having a key to the house.

Save for small contributions made by the respondent, he has not supported her since May, 1907. She insisted on the witness stand that he deserted her when he went to his "father’s farm in Grand Junction. He called on her at the farm of her father frequently up to November, 1912, and a few times afterwards. It appears undisputed that his visits there were not welcomed by her family. It is claimed that on the visits he made after November, 1912, he proposed to his wife that she secure a divorce. The contributions made by the respondent during the period from May, 1907, to November, 1912, amounted in all to $39, and ceased at the time that the abandonment is charged in the information to have been first committed.

It is urged by respondent’s counsel that the trial court should have directed a verdict for the respondent at the close of the people’s case, because the proofs show that the desertion, if any, took place prior to September, 1907, and further because the act then in effect has since been repealed, and this prosecution was had under a statute which has gone into effect since that time; and also because the separation, if any, seems to have been mutual.

An examination of the testimony of the complaining witness is convincing that what occurred in April, 1907, could not be said to have been desertion and abandonment on the part of the respondent, because it is clear, from what took place, that it was not the intention of the respondent to permanently leave his home at that time. The elements of this offense are fully discussed by this court in the case of People v. Stickle, 156 Mich. 557 (121 N. W. 497), in an opinion written by Mr. Justice Ostrander, and in an opinion written by Mr. Justice Stone in People v. Albright, 161 Mich. 400 (126 N. W. 432). We are of the opinion that the learned trial judge very properly instructed the jury that under the information filed in this case it must appear that the abandonment and failure to support occurred on and after September 12, 1907. Neither are we of the opinion that it could be said that as long as the respondent was making contribution to the support of his wife and child he could be held to be guilty of having abandoned them. The definition of abandonment, which is approved in the case of People v. Stickle, supra, makes it an essential element of the crime that perpetual separation must be intended; and from the evidence in this case, as long as he was making those contributions we do not think it can be said that he intended to abandon his wife and child. The last payment made by respondent to his wife was in November, 1912, and from that time up to October 3, 1914, he had contributed absolutely nothing to their support. We are of the opinion, however, that the jury were warranted in finding the respondent guilty of the offense charged in the information, from all the facts and circumstances in the case, upon his failure to support them after November 1, 1912, and that, although up to that time he may not have formed any intention to permanently separate himself from them. We are satisfied that there was ^enough evidence to warrant the jury in coming to the conclusion that he had formed such an intent since that time and finding him guilty as charged in the information. The court did not err, therefore, in refusing to direct a verdict at the close of the people’s case.

While the respondent was on the witness stand he was interrogated with reference to certain trouble that he had with his father concerning his wife, and was. asked whether he did not strike his father as a result of this trouble and whether his father did not cause a warrant to issue for his arrest. It is contended that these questions tended to prejudice respondent and were not germane to the issue. We quite agree that it does not appear that the questions were material or related to the issue here involved, but we do not see how the answers could be said to have prejudiced respondent in the eyes of the jury, because it appears that' whatever he did was in defense of his wife and not against her.

At the close of the people’s case the following occurred :

“Mr. Lewis: We wish to offer from the files of case No. 5247 in this court the warrant, complaint, return, and recognizance to appear in the circuit court — that is, the files in the case preceding this that was dismissed last May. The purpose of it is merely to show that such proceeding was in process at that time, and we expect to show that the respondent at that time made the agreement to settle and adjust matters in consideration that the case should be dismissed on that understanding; that he failed to make the settlement as he agreed, and after several notifications from the prosecutor’s office he failed.
“Mr. Cavanaugh: Now—
“The Court: Just a moment, Mr. Cavanaugh. The fact that there was another case against him may appear, but the mere fact that there was an agreement for a settlement and it was not complied with is not of material force here because he is being now tried here on this offense, which is distinct and separate from the" other. There might have been a desertion in the other and not in this. I don’t see — this being a criminal case, I think, gentlemen — that so far as to what was said in the disposition of that, in the absence of a conviction I think there may be some doubt whether you could show that. But the fact that proceedings had been taken, that fact may stand.
“Mr; Cavanaugh: I take an exception.
“Mr. Lewis: I am told that there was a written agreement or bond signed by the respondent, and that this agreement was signed and taken_ by him for the purpose of getting other signers upon it, sureties.
“The Court: It was not completed and was not signed wholly. But the point that the court makes is this: that in a criminal case you can’t introduce circumstances which tend to convict of another violation in support of this if it was not a conviction. I think it may be stated as I have indicated, that due process has been made heretofore, and that it was not carried to fruition, and now these proceedings are taken to do so, but I don’t think that you can take anything that the defendant did at that time as evidence of his guilt. He may have wanted to have settled that case and waive personal rights. I think for that purpose I will sustain the objection.
“Mr. Lewis: The complaint and warrant may be in as showing the date?
“The Court: Yes, sir.”

It is urged that it was error to bring out the matter of the previous arrest and attempted settlement before the jury. It clearly appears that the trial judge did not allow this evidence to be introduced as proof in support of the conviction here obtained, but limited it to the complaint and warrant as fixing the date of this first arrest, inasmuch as there had been some testimony in the case by witnesses as to acts happening just before and just after the first arrest.

The trial judge charged the jury with reference to the offense as follows:

. “But before the husband can be convicted of this offense you must be satisfied beyond reasonable doubt, that is, a moral certainty, that he not only refused to provide necessary and proper shelter, food, care, and clothing for his wife and child, but that he wilfully and unlawfully deserted and abandoned them. This means more than going away; more than mere separation. It means in this case, that is, abandonment and desertion under this statute means, to be separate from wrongfully, without intention of again resuming the marital relation. The offense charged in the information consists of two elements: first, an act of desertion and abandonment; second, the following up of such an act of desertion and abandonment without providing the necessary and proper shelter and food. In this case, to convict, you must find an act of desertion and abandonment of the wife and child, plus a refusal or neglect to provide for them.”

This was a correct statement of the law with reference to this offense, in accordance with the decision of this court in People v. Albright, supra.

Later in his charge, the court said:

“Before the husband can be convicted, you, as a jury, must find he intended to abandon her as his wife, the same as though, beyond a reasonable doubt, that this act of abandonment at the time charged here, if he abandoned her, was with the intent that it should be perpetual as above defined, that he intended never to support her, or live with her again, or furnish her with proper shelter, food, etc.; in other words, that he intended to abandon her as his wife, the same as though he had no wife.”

Later he said:

“The burden is upon the people to satisfy you of these two propositions that I have just sought to acquaint you with; that is, the fact of desertion and the fact of abandonment. These two elements must appear to your satisfaction beyond a reasonable doubt.”

Criticism is made that in this last statement the court failed to charge that respondent’s failure to provide necessary and proper food, shelter, and clothing should be proved beyond a reasonable doubt. Undoubtedly the court inadvertently omitted this in this connection, but in view of the clear and concise statement of the offense and its necessary elements made by the court in the other parts of the charge quoted from supra, we do not believe that the jury could have been misled by his failure to again enumerate them all in the paragraph of the charge which is criticised.

We have carefully examined the other assignments of error, but deeming them without merit, and being satisfied that the case was properly submitted to the jury, and that the respondent had a fair and impartial trial, we. are of the opinion that the conviction should be affirmed. The trial court will proceed to judgment.

Brooke, C. J., and Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.

The late Justice McAlvay took no part in this decision.


text:
    EDWARD v. GRAND HAVEN BASKET FACTORY.
    1. Master and Servant — Statutes—Guarding Set Screws— Proximate Cause.
    In an action under Act No. 285, Pub. Acts 1909, for injuries to a servant caused by an unguarded set screw in tbe “chuck” of a veneer peeling machine, plaintiff’s act of selecting tbe “chuck” which he used in carrying on his work was not the proximate cause of the accident so as to relieve defendant of liability, although it was plaintiff’s duty to use the proper size for the work which he was doing, in which he also was shown to have made a proper selection. He "had the right to assume that the appliances furnished to him were reasonably fit for the intended purpose.

      2. Same — Negligence—Statutory Requirements.
    Act No. 285, Pub. Acts 1909, whereby it is provided that all cogs, saws, set screws, planers, etc., shall be guarded properly when deemed necessary by the factory inspector, was properly held by the trial court to apply to the portion of machinery which plaintiff selected, different sized parts being required to fit the various sized bolts or logs.
    3. Assumption oe Risk — Statutory Violation.
    The employee did not assume the risk of a violation by his master of the duty imposed by such statute.
    4. Same — Contributory Negligence.
    Evidence tending to show that plaintiff selected the “chuck” which had projecting set screws, though other “chucks” were at hand which had no set screws or were guarded properly, and in his inspection did not observe the screws and had not perceived them on any of the “chucks,” and that after turning on the machinery his attention was engaged by his work, cleared plaintiff of the charge of contributory negligence as a matter of law.

    5. Same — New Trial.

      Held) also, that the verdict was not contrary to the weight of the evidence.
    Error to Ottawa; Cross, J.
    Submitted June 8, 1915.
    (Docket No. 2.)
    Decided July 23, 1915.
    Case by George Edward against the Grand Haven Basket Factory for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Travis, Merrick & Warner, for appellant.

      Smedley & Linsey, for appellee.

       As to contributory negligence with respect to injury from projecting screw in moving machinery, see note in 48 L. R. A. 98.

   Kuhn, J.

The plaintiff was injured on September 28, 1909, while operating a rotary veneer peeler at the defendant’s factory in Grand Haven. He is a son of the president and general manager of the defendant corporation, and had worked for the defendant about five years.

The operation of the machine upon which the plaintiff was working at the time of the accident involved: first, the selecting from three pairs of chucks, which went with the machine, a pair of the proper size to handle the log which it was intended to place between them; second, the placing of one of these chucks over the end of the stub shaft driven by a large gear on the right-hand side of the machine and placing the other over the end of the similar shaft on the left-hand side of the machine; third, placing the log, known as the “bolt,” varying in length from 21 to 32 inches, in a horizontal position between the two chucks by means of a chain hoist, and then closing the chucks against the ends of the log by the use of power, which caused the two stub shafts to slide toward each other until the prongs of both chucks were firmly embedded in the ends of the log; and, fourth, the setting of the machine in motion by means of a lever at the right-hand side, thereby causing the log or bolt to revolve up and away from the operator and against a horizontal knife behind the bolt.

During the operation of the machine it sometimes became necessary for the operator to adjust certain parts of the machine while it was running, notably the “pressure bar,” so called, to obtain veneer of a uniform thickness. These parts which were adjusted while the machine was in motion were at the right-hand end back of the stub shaft, and they could be reached either from the front of the machine or from the rear. To reach them from the front, to feel the edge of the veneer as it issued from the machine onto the table at the back, it was necessary for the operator to reach over the right-hand end of the revolving log and over the revolving chuck and stub shaft. The plaintiff, on the day of his injury, selected from the lot of six chucks belonging to the machine, which were lying on the floor near the machine, a pair on one of which, two set screws projected a distance of 1% inches from 2 holes in the sleeve, which were 4% inches apart, measured on the circumference of the sleeve, and put them in position on the stub shafts, placing the one with the projecting set screws on the stub shaft at the right of the machine. He then hoisted into position in the machine a bolt which was from 22 to 24 inches in diameter, and started the machine in motion to peel the bolt. After the machine had run a few moments and the bolt revolved several times, the plaintiff, standing in front of the machine, stepped up on a crossbar of the machine and reached over to feel of the veneer and to tighten the pressure bar. This was done in the customary way, which was to stand on the crossbar, intrude his head and shoulders between the stub shaft and the upper crossbar of the machine, grasping the latter with his left hand for support, and reaching with his right hand about 10 inches beyond and considerably below the edge of the knife. It was while in this position that the plaintiff’s clothing came in contact with the revolving shaft and chuck, and one or both of the two square-headed set screws, which projected from the collar of the chuck, caught in his clothing, causing him to be drawn up over the shaft, with the injurious results complained of.

The trial of the case resulted in a verdict for the plaintiff in the sum of $5,000, upon which judgment was duly entered. A motion for a new trial, based on the ground that the verdict was against the weight of the evidence, being denied by the trial court, the cause is brought here by writ of error.

The following special questions were submitted to the jury at the request of counsel for the defendant, and were, together with their respective answers, returned by the jury with its general verdict:

(1) Did the plaintiff himself, -before he was injured, place upon the right-hand shaft of the machine the large chuck, which at the time had one or more set screws projecting from it? Answered “Yes.”
(2) Did the State factory inspector, or his deputy, order the defendant to guard the set screw which caused plaintiff’s injury? Answered “Yes.”
(3) Was the set screw, which caused the plaintiff’s injury, placed in or upon the machine in question by the defendant? Answered “Yes.”
(4) Would a man of ordinary powers of observation, in picking up the chuck in question, or in placing it upon the shaft, or in starting the shaft revolving under the same circumstances as surrounded the plaintiff, have seen the set screw? Answered “No.”

The questions which are raised on this appeal are thus stated by counsel for appellant in his brief:

(1) The injuries complained of were not proximately caused by any act or omission on the part of the defendant.
(2) There is no room for the application to this case of the statute relied on by the plaintiff, requiring set screws to be guarded in certain cases; consequently the plaintiff assumed the risk.
(3) The plaintiff was guilty of contributory negligence, as a matter of law.
(4) The verdict was against the weight of the evidence, and the motion for a new trial, based on that ground, should have been granted.

It appears that the chuck which' was used on the occasion of the accident was the only chuck among, the six which were used in connection with this machine which had the set screws projecting, and the negligence here relied upon to sustain the plaintiff’s cause of action is the failure of the defendant to perform its statutory duty to properly guard the exposed set screws. It appears also that these different sizes of chucks were used, depending upon the condition of the end of the bolt, and, if it happened to be shaky or hollow, a larger set of chucks was used. The plaintiff testified that he did not see the projecting set screws on the chuck in question before he placed it on the shaft; that he supposed they both had blind set screws like the smaller chucks, and that he never had occasion to tighten up the set screws on big chucks, as he used them very seldom; and that, by just shoving them on the shaft instead of tightening the set screws, they would, by adhesion to the end of the log, draw off from the shaft when the core was removed, thereby saving taking them off by hand.

It is urged that the plaintiff’s act in selecting the chuck in question and placing it on the machine was an independent cause of the accident, intervening between the act of the defendant in permitting the set screws to exist in said chuck, and the accident. It may be conceded that it was the duty of the plaintiff to use the proper sized chuck for the work in hand, but it does not appear that he did not use the proper chuck suitable for the work he was then engaged in. He used the chucks furnished by the defendant for this purpose, and we can see no merit in the contention that the defendant’s negligence, if any there was, was not the proximate and direct cause of the accident. He used the appliances furnished him by the defendant, and had a right to assume that the appliances so furnished him were reasonably safe and fit for the purposes for which they were intended.

We cannot agree with the contention of counsel that the statute (section 15 of Act No. 285, Pub. Acts 1909), which reads as follows:

"All vats, saws, pans, planers, cogs, set screws, gearing and machinery of every description shall be properly guarded when deemed necessary by the factory inspector”

—does not apply in this case. The question of whether or not the set screws on this chuck were to be guarded under the order of the factory inspector was left to the jury as a question of fact. These chucks were part of the machinery, and it was necessary to have different sizes of chucks in order to accommodate the different kinds of bolts.

Being satisfied that the jury was warranted in finding a violation of the statutory duty, it follows that the servant did not assume the risk, under the well-established doctrine in this State. Wallin v. Railway Co., 172 Mich. 466, and cases cited on page 473 (138 N. W. 270).

Neither are we of the opinion that it can be said that the plaintiff should be’ held guilty of contributory negligence, as a matter of law. It is urged that he should be held guilty of such negligence because of his failure to observe the set screws, because of his blind selection of the chuck-bearing set screws, and because of placing his body where he did place it just before he was hurt, and because of his choice of the more dangerous of two available methods of doing the work at hand. The chuck in question was produced at the argument in this court, and, from the demonstration there made, it would seem possible that, if the set screws happened to be on the lower side of the chuck while it was lying on the floor, the plaintiff might have picked the chuck up and placed it on the stub shaft without having seen the set screws. It further appears, and it is undisputed, that the larger sized chucks were rarely used, and the plaintiff testified that he had never seen projecting set screws on any of the chucks. As soon as the bolt was placed on the machine and the power turned on, the plaintiff’s attention might have been directed to other parts of the machine, especially to the testing of the veneer and adjusting the pressure bar. We do not think that the plaintiff’s contributory negligence is so clearly established, under the facts of this case, that we can decide it, as a matter of law, and we are therefore of the opinion that the question was properly submitted to the jury. Roberts v. Food Co., 142 Mich. 589 (106 N. W. 68); Swick v. Cement Co., 147 Mich. 454 (111 N. W. 110); Beghold v. Auto Body Co., 149 Mich. 14 (112 N. W. 691, 14 L. R. A. [N. S.] 609); Schulte v. Pfaudler Co., 150 Mich. 427 (113 N. W. 1120); Neifert v. Metler, 165 Mich. 354 (130 N. W. 630). Neither can we say, as a matter of law, that the verdict is against the weight of the evidence.

No reversible error being made to appear, the judgment should be, and it is therefore, affirmed.

Brooke, C. J., and Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.

The late Justice McAlvay took no part in this decision.


text:
    McCORMICK v. BRADBURY.
    1. Fraud — Evidence—Measure of Damages — Market Value.
    Upon an issue of fraud in selling certain land to plaintiff, evidence as to the value of the land was admissible to fix the measure of damages and ought not to have been excluded.

    2. Same — Witnesses—Competency.
    The testimony of a witness who stated that he did not know the market value of the property was erroneously admitted to prove its value.
    Error to Kent; Brown, J.
    Submitted June 29,1915.
    (Docket No. 113.)
    Decided July 23, 1915.

      Case by Bella McCormick against Ivor C. Bradbury for fraud. Judgment for plaintiff for an insufficient amount, and she brings error.
    Reversed.

      Corwin & Souter, for appellant.

      Eastman & Eastman, for appellee.

       As to measure of damages for fraudulent representations in sale or exchange of real estate, see notes in 8 L. R. A. (N. S.) 804; 16 L. R. A. (N. S.) 818.

   Kuhn, J.

The plaintiff, who, with her sister Rebecca, resided at Peru, 111., where they own and manage a farm, brought this action to recover damages because of certain fraudulent representations alleged to have been made by the defendant, which resulted in the purchase by her of certain lands near Oldham, S. D. The defendant, who lived at Oldham, S. D., removed to Grand Rapids, Mich., where this suit was brought. The jury found for the plaintiff, but assessed her damages at $200, and the plaintiff has appealed for the reason that the damages are inadequate. It is her claim that the land is poor and almost worthless, and her damage was not less than $1,600, according to the great weight of the evidence.

The question of the value of this land became one of the vital issues in the case, and witnesses were sworn on behalf of both plaintiff and defendant, who testified as to its value. The deposition of Andrew Olson, a witness produced on behalf of the plaintiff, was offered, which read as follows:

“I live one mile south and three-quarters of a mile west from Oldham. I lived there in 1881, and lived there ever since, except one year. I have seen the Vermillion Flats a good many times and have traveled across it. This particular land lies 40 acres north and 120 acres south of the road lying west of Oldham and is 80 rods wide and 1 mile long. The Drilling property lies on the south and west of the south 40. I have had occasion to be over that property several times this year.
“Q. What would be the market value of that land in 1905 and 1906? (Objected to as incompetent and no foundation laid and witness hasn’t stated his competency to testify as to the value of the land lying down in the flats.)
“A. The only way I could tell would be to put the value on it by what the other land right around there sold at.
“Q. By using that as a basis, what it sold at around there, what would you say the land was worth? (Objected to as no foundation laid, and witness by his testimony shows that he is incompetent to say what price it would be worth during 1905 and 1906.) _
_ “Mr. Walker: I think that the objection that is made there on the record is well taken because it says no foundation is laid, and the witness by his testimony shows that he was incompetent to say what it would be worth during 1905 and 1906.
“The Court: Evidently the questions have to be taken for what they are fairly worth. Here the deposition is not very full on the subject. Probably if the witness was here we would require more showing, but I will take the answer to the question.
“A. $1,600 for 160 acres.
“Q. Mr. Bradbury bought that land in 1905 for $1,-900; do you think he paid all it was worth?
“A. Indeed he did.
“Mr. Walker: I move to strike out that answer.
“The Court: I think I will let the answer stand.”

Subsequently, on motion of counsel for defendant, the court struck all this testimony from the record. This is assigned as error, and we are of the opinion, in view of the fact that the measure of damages really turned upon the value of this land, that the exclusion of this testimony, which was favorable to the plaintiff’s theory, must be said to have been prejudicial error. That the evidence was admissible we think is clear under, the rule laid down in Stone v. Covell, 29 Mich. 359. See, also, Wallace v. Finch, 24 Mich. 255, 257, where this court said:

“The witness was a farmer who had then resided in the vicinity of the property for several years, and was well acquainted with it. He owned a piece of land near these premises, and had known of the sale and purchase of lands near by. Nothing more was needed to show that he was competent to testify respecting the value of the premises.”

Error is also assigned because the court admitted the testimony of one Patrick C. Murphy, which was taken by deposition, and read as follows:

“I live three miles north of Oldham, in Whitewood township. I have lived there 33 years. My business is farming. I have been on the township board as assessor in Whitewood township. I think it was 5 years the last time, 2 years before. About 7 or 8 years altogether. I am not assessor now. I was not assessor of the township in 1905 and 1906. Beginning in 1907, I was assessor for 5 years. I am acquainted with the Bella McCormick land. I know where it is and am familiar with it. I think it was assessed at $8 per acre in 1907. I cannot swear to it.
“Q. What was the basis of value in the assessment?
“A. One-third.
“Q. What was the basis of the value as compared between the assessed value and market value of land during those years?
“A. I don’t know. In the assessment of this land in the years subsequent to this, I assessed it at one-third of its value, to the best of my knowledge. I think it was assessed at $8.50 in the year 1908.
“Q. Are you acquainted with the market value of land in that vicinity?
“A. Well, I do not know.
“Mr. Corwin: I object to all the testimony of the witness and move to strike it out, for the reason that he does not show himself competent to testify. I move that it be stricken out, because he says he does not know the market value.
“The Court: It may stand for what it is worth, taking all he says about what he knows as showing how much convincing force there is in it.
“Mr. Corwin: An exception.”

The witness having testified that he did not know the market value of the land, we do not think this testimony wag admissible. We should have hesitated to reverse the case if this was the only error alleged, because the jury were instructed that it should stand for simply what it was worth.

In view of the fact that the case will have to be sent back for a new trial, it is unnecessary to consider whether or not the verdict was contrary to the great weight of the evidence, which question is raised by proper assignment of error.

The judgment will be reversed, and a new trial granted as to all the issues involved.

Brooke, C. J., and Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.

The late Justice McAlvay took no part in this decision.


author: Steere, J.

text:
    TOWNSHIP OF CLEARWATER v. BOARD OF SUPERVISORS OF KALKASKA COUNTY.
    1. Municipal Corporations — Townships—Counties—State Legislature — Statutes.
    Townships and counties, being organized as municipalities, purely for public purposes, and their rights and duties not being based on contract, their powers, rights and duties may at any time be modified or abolished by the legislature.
    2. Highways and Streets — State Legislature — Townships— Counties — Municipal Corporations.
    It is within the power of the legislature to provide by statute (Act No. 355, Pub. Acts 1913) that, in consideration of previous expenditures by a township for State reward roads and county road taxes paid out of proportion to benefits, tbe township 'should have, under certain contingencies, through a process of rebate, relief in part from the burden of such taxation for a time thereafter.
    3. CONSTITUTIONAL LAW-STATUTES-RETROSPECTIVE ACT.
    Act No. 355, Pub. Acts 1913, is not retrospective, in a sense forbidding it, because a part of the requisites for its action and application is drawn from a time antedating its passage.
    4. Highways and Streets — Townships—Municipal Corporations.
    Until 1893, all public roads, outside of cities and villages, were township highways, and were under the control, eare and management of the township in which they were situated, except the few State and Territorial roads, opened by special legislation, and these also, after construction, were under the care and supervision of the township highway commissioners of the several townships through which they passed.
    5. Same — County Road System — State Reward Roads — Construction of Statute.
    On certiorari to review mandamus proceedings to compel the board of supervisors of respondent county to refund to relator county road taxes paid since the enactment of the county road system, as certified by the township clerk, in conformity with the provisions of section 26, Act No. 355, Pub. Acts 1913, respondent contending that only taxes paid since the enactment of the statute should be refunded, the various acts passed since 1893 are reviewed and, it being manifestly the intent of the legislature that the intended benefits of the county road system should ultimately be equitably distributed to the townships taxed for that purpose, it is held, that the whole period in which the county road system has been in force and county highway taxes collected from the respective townships is the basis for computation, and the judgment of the circuit court denying the writ is reversed.
    6. Statutes — Construction of Statute — “Proviso”—Words and Phrases.
    A proviso to a statute is a limitation or exception to a grant made or authority conferred, the effect of which is to declare that the one shall not operate, or the other be exercised, unless in case provided, and a proviso to a section in a statute creating and defining a right or power is to be accepted according to its natural, common, and most obvious meaning, strictly construed and limited to tbe objects fairly within its terms, as gathered both from the section of which it is a part, and a general purview of the whole context.
    Certiorari to Kalkaska; Lamb, J.
    Submitted June 29, 1915.
    (Calendar No. 26,481.)
    Decided July 23, 1915.
    Mandamus by the Township of Clearwater against the Board of Supervisors of Kalkaska County to compel respondent to return to relator certain county road taxes. An order denying the writ is reviewed by relator on certiorari.
    Reversed.

      Parm, C. Gilbert (J. D. Armstrong, of counsel), for relator.

      Ernest C. Smith, for respondent.
   Steere, J.

This case turns upon the construction of section 26,, chap. 4, of Act No. 355, Pub. Acts 1913, which is as follows:

“Sec. 26. The adoption of the county road system in any county shall not prohibit any organized township from building State reward roads with moneys raised by tax or by bonding, and in townships where money has been raised by bonding to build State reward roads, the township clerk shall certify to the board of supervisors at the annual meeting thereof the amount of such bonds remaining unpaid, and the county road tax paid by such township shall be returned to the township each year to be applied in payment of such bonds until they are fully paid: Provided, however, that no township shall be entitled to the return of its county road tax until it shall have paid as much money in county road taxes as may have been expended on county roads within said township by the county road commissioners.”

The circuit court of Kalkaska county denied an application for a writ of mandamus to compel respondent to return to relator certain county road taxes it had paid, and which it claimed should, be refunded under the provisions of said section 26. Relator now seeks, by certiorari to mandamus a reversal of said order of denial.

Clearwater is a township of Kalkaska county, where the county road system has been' in force and operation for about 14 years. In 1912 Clearwater township by popular vote issued its bonds to the amount of $6,000 for the purpose of building State reward roads through its own territory. The money thus obtained was expended for such purpose within its boundaries, the work of construction continuing from the autumn of 1912 through the ensuing season until'the fall of 1913 or the first days of the season of 1914. Clear-water township had each year since the county road system was in force in Kalkaska county regularly paid its proportion of county road taxes assessed against it. The amount of taxes so paid by it during the years in which the county road law had been in force exceeded the amount expended in the township by the county road commissioners during the same time, but the amount of county road funds expended in the township by the county road commissioners subsequent to the passage of said Act No. 355 exceeded thé county road taxes paid by said township during the same period.

At the annual October, 1913, meeting of the board of supervisors of said county a certificate in behalf of Clearwater township was presented to and filed with the board by the Clearwater township clerk, certifying in due form to the raising of $6,000, as before stated, by township bonds to build State reward roads, that said bonds were outstanding and unpaid, and requested the board by proper action to refund to the township all moneys paid by it for the current year as county road taxes, that the same might be applied in payment of said bonds. The board of supervisors declined to act favorably upon said application, denying that the township was legally entitled to repayment of its portion of the county road tax as claimed. The township thereupon instituted proceedings in the circuit court of said county to obtain a writ of mandamus directing the board of supervisors to refund said taxes. An order to show cause was issued upon said application, and an answer thereto duly filed by respondent. When the matter was brought on for hearing in the circuit court, issues were framed upon the petition of the relator and respondent’s answer as follows:

“First. Did the township of Clearwater issue its bonds and raise money for the building of State reward roads in the sum of $6,000, as alleged in the petition?
“Second. Was the certificate of the clerk of Clear-water township made stating the amount of such bonds remaining unpaid, and said certificate presented to the board of supervisors of Kalkaska county at its annual October meeting, October, 1918?
“Third. Had the township of Clearwater paid as much money in county road taxes as has been expended on county roads within said township by the county road commissioners of Kalkaska county?
“Fourth. Has the township of Clearwater expended in the building of State reward roads the sum of $6,000 and upwards of the moneys raised upon the above-mentioned issue of bonds of said township as alleged in the petition herein ?”

The issues were tried before the court without a jury, and all answered in the affirmative except the third, the answer to which was as follows:

“Yes, if the issue is intended to include all county road taxes paid by the township since the adoption of the county road system by Kalkaska county; and the answer of this coúrt is no, if the issue is confined to the county road taxes paid by said township since the passage of the statute under which this action is brought.”

The court thereupon denied said application for a writ of mandamus, for the reason indicated by the concluding portion of its answer to issue No. 3. The question at issue is the meaning of the proviso in section 26, which declares:

“That no township shall be entitled to the return of its county road tax until it shall have paid as much money in county road taxes as may have been expended on county roads within said township by the county road commissioners.”

Relator contends this means the total balances as they appear each year, and should be determined by a computation covering the period during which the county road system has been in force in Kalkaska county and the township compelled to pay county road taxes; while respondent urges that the law in its intent is prospective, and the proviso does not permit consideration of bonds issued and county road taxes paid by the township, nor county road money spent within its territory, prior to its enactment, but only expenditures by the county on roads within the township and county road taxes paid by the latter after the law went into effect can be considered.

It cannot be said that relator’s construction and method of computation are prohibited, because involving a retrospective construction of the law. The rights and duties of these municipalities are not based on any contractual relations. They are organizations purely for public purposes, and their powers, rights, and duties may at any time be modified or abolished by legislation. A law is not retrospective, in a sense'forbidding it, because a part of the requisites for its action and application is drawn from a time antedating its passage. It was within the power of the legislature to provide, in consideration of previous expenditures for State reward roads and county road taxes paid out of proportion to benefits, that the township should under certain contingencies have, through a process of rebate, relief in part from the burden of such taxation for a time thereafter. So far as that question is concerned, the proviso is open to either construction contended for; and the more serious question is: What was the legislative intent?

Under the settled policy in this State, through all the changes in our highway laws until 1893, public roads outside of cities and villages were under the control, care, and management of the townships in which they were situated, and were all township highways, constructed at township expense, except the few State and Territorial roads opened by special legislation, which, after construction, were also under the care and supervision of the highway commissioners of the several townships through which they passed.

In 1893 (Act No. 149, Pub. Acts 1893) the so-called “county road law” was enacted, optional with the counties, providing for an additional system of roads to be developed and maintained by the county, instead of the townships, and authorizing taxation for their construction and maintenance. In counties where this law was put in operation, the township highway laws remained in force as before, with the burden still upon each township to construct, maintain, and be responsible for its system of township highways. The funds raised by taxation under the county road law were expended by the county authorities upon county roads in any part of the county they deemed advisable. This made it possible, if not probable that some townships through which county roads were projected, calling for heavy expenditures, might be especially favored and benefited, and relieved from extending or maintaining their township highways, while others, through which no county roads ran and remote from them, yet had the full burden of highways within their own territory, and received little, if any, benefits from the county roads for which an extra burden of county tax was imposed upon them.

In 1905 (Act No. 146, Pub. Acts 1905) the State reward law was enacted, providing that under certain contingencies a State reward per mile should be paid by the State to counties and townships constructing roads of certain kinds and qualities.

In 1909, in an effort to get the scattered highway laws together and in more harmonious working condition, Act No. 283, was passed “to revise, consolidate and add to” existing laws upon the subject. In this law legislative attention was first given to the .possible inequality of additional burden and benefits which might result, and perhaps had resulted, between townships where the county road law was in force, and section 26 first appears in that act substantially as we have it now, except that the proviso under consideration was omitted. This section, however, as then enacted, gave unrestricted opportunity and right for a township, in which county roads had been or were about to be constructed or improved at heavy expense, to bond for township roads with the prospect that the county would ultimately be compelled to meet these bonds by rebating to the township its county highway taxes, and the township thus get the benefit of more than its just proportion of the county road money. After two years’ trial in that form, section 26 was amended by Act No. 168, Pub. Acts 1911, to read as follows:

“Sec. 26. The adoption of the county road system in any county shall not prohibit any organized township from building State reward roads: Provided, however, that the provisions of this act shall not apply to townships which have already bonded in good faith for the purpose of building roads under the provisions of section 26 of chapter 4, Act No. 283 of the Public Acts of 1909, prior to the passage of this act. All acts and parts of acts contravening the provisions of this act are hereby repealed.
“This act is ordered to take immediate effect.”

In 1918 the section was again amended to substantially the form in which it first appeared (in 1909), with the provision under consideration added.

Clearwater township is, and was when this section as amended went into effect, a township “where money has been raised by bonding to build State reward roads.” In such case the law made it imperative for the township clerk to “certify to the board of supervisors, at the annual meeting thereof, the amount of such bonds remaining unpaid,” whether the township was entitled to a return of its county highway taxes or not. It was manifestly the judgment and intent of the legislature that the townships should have the intended benefits of the section as originally enacted, safeguarded against abuse by the conditions added in the closing proviso. Both the wording and history of this legislation point to a purpose to provide some method by which, in the long run as the system of county roads develops, the benefits may ultimately be equitably distributed to the townships taxed for that purpose in approximate proportion to the burden of taxation imposed upon them. If such is the purpose of this section, and we are impressed that it is, the whole period in which the county road system has been in force and county highway taxes collected from the respective townships best serves as the basis for computations to accomplish such purpose.

Had it been the legislative intent by this proviso that the balance which must settle whether a township was entitled to a rebate or not should be limited to each year, and determined by the difference between county highway taxes assessed against it and the county highway money expended within its territory that year, the intent could have been made plain beyond cavil in such few and simple words that a failure to so indicate in a section which was three times the subject of legislative consideration and action is persuasive to the contrary.

Section 26, as originally passed and as amended, without the proviso, entitled every township “where money has been raised by bending to build State reward roads” to an annual refunding of its county highway tax until such bonds are paid, without restriction and irrespective of the amount of county road funds which may have been spent within its territory in excess of taxes paid and benefits out of proportion to burdens borne.

A proviso to any enacting section in a statute which creates and defines a right or power is to be accepted, according to its natural, common, and most obvious meaning, strictly construed and limited to the objects fairly within its terms, as gathered both from the section of which it forms a part and a general purview of the whole context. This proviso manifestly is restricted to the section in which it appears, limits it, and takes something back from the power first declared. In that particular it cannot be expanded beyond the strict meaning of the language used. A proviso “is a limitation or exception to a grant made or authority conferred, the effect of which is to declare that the one shall not operate or the other be exercised unless in case provided.” Voorhees v. Jackson, 10 Pet. (U. S.) 449. There' can be no intent in a statute not fairly expressed in words. The “case provided” here, and expressed in simple words without other conditions, or limitations, is that the township, before it is entitled to a refund of its taxes, “shall have paid as much money in county road taxes as may have been expended on the county roads within said township by the county road commissioners.”

We are unable to find expressed in the words of this proviso a legislative intent that adjustment must be made yearly on the basis of each year’s transactions, regardless of what has gone before, and conclude, for the reasons stated, that relator was entitled to the writ of mandamus as petitioned.

The order denying the same is reversed.

Brooke, C. J., and Kuhn, Stone, Ostrander, Bird, and Moore, JJ., concurred.

The late Justice McAlvay took no part in this decision.


text:
    LOWE v. SCHUYLER.
    1. Mortgages — Foreclosure—Injunction—Usury—Accounting.
    Defendant loaned the complainant a sum of money for which he took four promissory notes bearing interest at 7 per cent, and requiring the mortgagee to pay all taxes assessed on account of the mortgage and notes. Complainant made irregular payments upon the obligation, although he did not carry out the provisions of the instrument and became delinquent. There were two mortgages securing the amount of the loan and defendant commenced foreclosure proceedings by advertisement, claiming an excessive amount. Upon complainant’s filing a bill to restrain foreclosure and for an accounting and alleging usury, the court granted complainant, mortgagor, permission to redeem upon the payment of an amount less than that claimed by the mortgagee. Held, that general averments in complainant’s bill setting up the excessiveness of defendant’s claim and asking for an accounting and charging usury were sufficient to raise the issue as to the amount due to the defendant.
    2. Usury — Mortgages—Oral Agreement.
    While a valid agreement may he made to pay interest upon past due interest in consideration of an extension of time for payment, the contract must he in -writing under the statutes of this State, which do not authorize interest upon interest in the case of oral contracts.
    3. Same — Interest—Compound Interest.
    In computing interest no sum can he allowed on interest after the maturity of the debt; therefore simple interest alone is due upon the principal sum until the date of settlement.
    Appeal from Muskegon; Sullivan, J.
    Submitted June 25, 1915.
    (Docket No. 75.)
    Decided July 23, 1915.
    Bill by James F. Lowe against Estella A. Schuyler to restrain foreclosure of a mortgage by advertisement. From a decree for the complainant defendant appeals.
    Affirmed.

      Clink & Farmer, for complainant.

      Hatch, McAllister & Raymond, for defendant.
   Steere, J.

Complainant filed this bill to restrain statutory foreclosure of a real estate mortgage for an alleged excessive amount, and for an accounting, to determine what amount, if any, was due from him to defendant upon said mortgage. On August 7, 1894, defendant loaned the complainant $340, taking three promissory notes therefor, payable successively in 3, 4, and 5 years, secured by a mortgage upon his farm. These notes bore interest at 7 per cent., and the mortgage required complainant to pay all taxes assessed on account of said mortgage and notes. Three days later she loaned him $100 secured by a second mortgage payable in 6 years. Payments were credited upon this mortgage from time to time, and it was discharged March 28, 1910. It only came into this case in connection with the accounting, where it became necessary to distinguish and eliminate payments made upon it, in the mutual accounts between the parties, from other credits complainant was entitled to, and which should be applied upon the first mortgage. Complainant, from time to time, but irregularly, made payments in labor and money, but failed to fully meet his payments, either as they fell due or subsequently, and became long delinquent. On November 1, 1913, defendant instituted statutory foreclosure proceedings by advertisement, claiming the amount due and unpaid on said mortgage to be $616.87.

On November 26, 1913, complainant filed this bill, alleging dealings and transactions between the parties upon open account involving mutual credits; that complainant had fully paid defendant all sums due upon the open account and also sums to be applied upon said mortgage; that there was no such amount due upon said mortgage as stated in the statutory foreclosure demand, and asking for an accounting between the parties to determine the amount, if any, due and owing to defendant upon said mortgage and notes, offering to pay any balance found in defendant’s favor, and asking leave to redeem from said foreclosure. Defendant answered, denying any dealings or transactions between the parties on an open account; alleging that all payments in labor or money made by complainant on said mortgage had been duly credited; that there remained due and unpaid upon said mortgage the full amount stated and demanded in the statutory foreclosure; denied that complainant had in his bill made or stated any case entitling him to relief in a court of equity, and on that ground asked the benefit of a demurrer.

The case was heard upon pleadings and proofs taken in open court. The testimony related to various transactions between the parties extending over the years this mortgage was running, involving services rendered, money paid, credits given, and indulgence granted by her upon the mortgage, taxes paid by each at different times upon the land covered by the mortgage, and numerous talks, promises, and understandings reached between the parties at different times, not necessary to further state here. In the final analysis, there was little, if any, disagreement, as to time and amount of payments made and credits given, or the amount of principal yet. unpaid on the mortgage.

Complainant contended in the trial court that the loan was usurious, owing to the provision requiring him to pay taxes on the mortgage, the rate of which, added to the interest stipulated, exceeded the interest rate allowed by law, and also urged a certain method of computation of interest on partial payments more favorable to him than that contended for by defendant.

Complainant’s method for computing interest and contention that the loan was usurious were not sustained by the trial court, which found, practically without question by either side, that payments had been made upon the mortgage amounting to $291.42; then proceeded to compute interest under the rule stated in Wallace v. Glaser, 82 Mich. 190 (46 N. W. 227, 21 Am. St. Rep. 556), and found unpaid and due upon said mortgage the sum of $517.97. Complainant was granted permission to redeem from the statutory foreclosure, within a stated time, upon payment of that amount, with subsequent interest, and all costs of said foreclosure; the decree being without costs to either party in this suit.

From this decree defendant appealed, contending, as stated in her counsel’s brief:

“First. That the relief administered by the court was based upon issues not made by the pleadings.
“Second. That the contract was not in fact usurious, and even though it were, that that question is not within the issues made by the pleadings, and that in any event the complainant, not having appealed, could not ask for relief on that ground from this court ; the relief granted below being based solely upon a claimed incorrect computation of interest.
“Third. That the computation of interest in the statutory foreclosure proceedings was correct.”

We are unable to accept defendant’s view that the relief administered by the court was based upon issues not made by the pleadings. That complainant pleaded and unsuccessfully gave prominence to his claim of usury at the hearing is true, but it is alleged in his bill, and was also insisted upon at the hearing, that while defendant claimed and sought to foreclose the mortgage for $616.87 “in fact there is no such amount due upon said indenture of mortgage, either for principal or interest, nor any amount,” and the bill prays that defendant “may come to a just and equitable account with your orator as to the amount of money due and owing to her upon said indenture of mortgage and notes, if any, your orator being ready and willing and hereby offering to pay * * * whatever sum shall be found to be due and owing to her on said indenture of mortgage and notes.” While the court refused to grant the principal relief which complainant sought, we think the bill is broad enough to cover the partial relief granted. That an excess which complainant assumed, claimed and at first sought to show arose from failure to give full credit for payments made, turned out, so far as the court found any excess on an accounting, to have been occasioned by an improper method of computation, did not preclude the court from granting relief to the extent of the excess thus found, and was fairly within the issue raised by the allegation that no such amount as defendant claimed was due upon the mortgage “either for principal or interest.” Inasmuch as complainant’s contentions as to usury and method of computation were overruled by the trial court and he has not appealed, there is nothing before this court for consideration upon those propositions.

It is insisted defendant’s computation of amount in the statutory foreclosure is justified by Rix v. Strauts, 59 Mich. 364 (26 N. W. 638), and also an agreement by complainant to pay interest on interest after the indebtedness became due, in consideration of forbearance, or extension of time; citing Gay v. Berkey, 137 Mich. 658 (100 N. W. 920). It is unquestionably the rule in this State that a valid agreement may be made to pay interest upon past due interest in consideration of extension of time, but the claimed agreement in this case was oral. The statute authorizing interest upon interest in cases of this kind does not include or contemplate verbal contracts. Voigt v. Beller, 56 Mich. 140 (22 N. W. 270).

Apparently, and as computed by the trial court, defendant’s method of computing partial payments results in an interest rate forbidden by law; but aside from that consideration it includes interest on interest beyond that authorized by the statute as finally construed and settled in Wallace v. Glaser, supra, which fully establishes in this State the so-called United States, or Massachusetts, rule. Not only does this case hold that computation of interest on interest can only continue until the debt matures and from that time simple interest be cast upon the principal until the time of liquidation, but this construction finds support in the preceding cases of Buchtel v. Mason, 67 Mich. 605 (35 N. W. 172), and McVicar v. Denison, 81 Mich. 348 (45 N. W. 659). The notes in this case fell due at different times, and in computing interest upon them each should be treated as a separate debt.

Whatever opportunity for a different construction of the statute or uncertainty as to the proper rule for computing interest on interest may have arisen under previous decisions, the rule announced in Wallace v. Glaser, supra, is, and has been for a quarter of a century, the law of this State, and we conclude the learned circuit judge who heard this case made a proper application of that rule.

The decree is affirmed, with costs of this court to complainant.

Brooke, C. J., and Kuhn, Stone, Ostrander, Bird, and Moore, JJ., concurred.

The late Justice McAlvay took no part in this decision.


author: Brooke, C. J.

text:
    SMALL v. NEWAYGO CIRCUIT JUDGE.
    1. Appeal and Error — Bond—Amendment—Motions por Mandamus.
    Where the defendants in a cause filed a defective bond on appeal, not properly executed by the sureties or by all of the joint defendants in the ease, and upon motion being made to strike the instrument from the files as insufficient, defendants tendered an amended bond, which conformed to the requirements of law, the trial court should have authorized the filing of the amended instrument under the provisions of 3 Comp. Laws, § 10410, the showing of defendants establishing the fact that an appeal was purposed in good faith.
    2. Same — Time—Exceptions.
    The objection that the defective bond was not filed within the statutory period of 20 days was not properly before the court where tbe bond bad not been presented to tbe trial court and tbe same was based on tbe proposition that judgment bad been rendered on tbe 24tb day of December, but the record showed, erroneously, that judgment was uttered on tbe 23 d.
    Mandamus by Fred L. Small and others against Joseph Barton, circuit judge for the county of Newaygo, to compel respondent to enter an order authorizing relators to file an amended bond on appeal and vacate an order granting the motion to strike the appeal bond from the files.
    Submitted June 15, 1915.
    (Calendar No. 26,705.)
    Writ granted July 23, 1915.

      Warner, Baudabaugh & Person, for relators.

      George Luton and William J. Branstrom, for respondent.
   On the 23d or 24th day of December, 1914 (upon the question of date the record is not clear), one John McKinley, as plaintiff, secured a judgment against relators herein, as defendants, in the circuit court for the county of Newaygo. Upon the same day an order was made that:

“All proceedings in this cause, except taxation of costs, be stayed for a period of 20 days, and a further period of 60 days upon the filing of a good and sufficient bond, the sureties thereon to justify in twice the amount of the judgment, said bond to be approved by the clerk of this court, for the purpose of moving for a new trial, settling a bill of exceptions or such other steps as counsel may advise.”

On the 13th day of January, 1915, relators filed a bond in the penal sum of $2,200, with Thomas Rice, William L. Case, and H. B. Woodward as sureties. The bond was executed by three of the relators in person, and by the other six of the relators by Fred L. Small. The sureties signed the justification underneath the body of the bond, but did not sign the bond in any other place, though they are named in the body of the bond. The order of December 24th. required .said bond to be approved by the clerk of the court. Such approval does not, however, appear anywhere upon the bond, although the record of the circuit court disclosed that it was received by the county clerk on January 13, 1915. On January 16, 1915, plaintiffs costs were taxed in the sum of $413.09. On February 9, 1915, plaintiff moved the court below for an order striking said bond from the files upon the following grounds:

“(1) That on or about the 13th day of January, 1915, a paper writing purporting to be a bond to stay proceedings on judgment in said cause was received by the clerk of said court, which purported bond was signed by only three of said defendants and was not regularly signed by any of the sureties mentioned therein.
“(2) That the said bond was not approved by the circuit judge, nor was any notice of the time and place when same should be presented to circuit judge for approval ever served upon the adverse parties, as is provided by section 10355 of Compiled Laws of 1897.
“(3) That Fred L. Small, one of said defendants, subscribed the names of six of said defendants to said purported bond without any authority from said defendants to do so whatsoever.
“(4) That said purported bond is null and void for want of proper execution, want of proper notice of approval, and as the same remains a part of the record and files in said cause, it is a fraud upon said court, this plaintiff, and said defendants who did not sign same.”

Answering said application the attorney, for the defendants in said action (relators here) filed the following affidavit:

“Albert G. Day of said county being duly sworn says that he never saw the bond filed to stay proceedings in this case until the evening of February 10, A. D. 1915, but that on the 14th day of January, 1915, George Luton, one of the attorneys for plaintiff, told affiant that the bond had been filed, and on said 10th day of February, 1915, George Shepard, the clerk of this court, informed affiant that on or about the Monday following the filing of the bond, said George Luton inspected said bond then in the office of said clerk. Affiant further says, that no exceptions have been taken to said bond, and the time to take exceptions has expired, as affiant understands the practice, because the plaintiffs attorneys have had more than 10 days after having knowledge of the bond being in the clerk’s office to take said exceptions; that he is. informed by the stenographers who have the stenographic record of the testimony taken in the case that a copy of the testimony taken in the case has been prepared for the counsel for the defendants at our expense of more than $86. And affiant further says that the judgment rendered in this case is rendered upon a joint and several obligation, and therefore any one or more of the defendants are entitled to appeal from said judgment, without the concurrence of the rest of the defendants, or even against the wishes of .the remainder of the defendants, and that the appeal claimed in this case is taken in the utmost good faith and is being prosecuted as fast as possible, and plaintiff’s attorney refused this day to stipulate to allow the bond to be amended.
“Albert G. Day.
‘Subscribed and sworn to before me February 15, 1915. John Bailey,
“Notary Public.”

And upon the same day made the following motion:

“Now comes the defendants and ask leave of the court to withdraw the bond mentioned in the affidavit above for the purpose of having the sureties therein mentioned sign the same, and that the bond, when signed by said sureties or others who shall justify, be filed as of the 13th day of January, A. D. 1915.”

The motions came on for hearing on the 1st day of March, 1915, and the following order was made:

“It is ordered and adjudged, that the said motion be granted and that the said paper writing purporting to be a bond to stay proceedings on judgment, dated the 9th day of January, A. D. 1915, be and the same hereby is stricken from the files in said cause and is held for naught, with costs of this motion, including an attorney fee of $10 to be paid by defendants within 30 days from the service of a copy of this order upon said defendants or their attorney.”

Relators pray:

“(1) That a writ of mandamus be issued from and out of this court, commanding Joseph Barton, circuit judge of the circuit court for the county of Newaygo, respondent, to set aside the order made in the case of John McKinley v. Fred L. Small, et al., on the 1st day of March, 1915, which order was so made striking from the files in said cause the bond filed in the same for a stay of proceedings.
“(2) That should this court deem the bond so filed in said cause insufficient or irregular for any cause that the writ of mandamus to said judge commanding him to grant the prayer of the petitioners and by permitting them to file an amended bond in said cause as of date of the one now on file.
“(3) That an order be made in this cause by this court extending the time for the settlement of a bill of exceptions in said case of John McKinley v. Fred L. Small, et al.
“(4) That peremptory order be issued out of this court directed to the circuit court for the county of Newaygo in the case of John McKinley v. Fred L. Small, staying all proceedings in said court and cause until the further order of this court.”

Brooke, C. J.

(after stating■ the facts). We find it unnecessary to consider the rather elaborate briefs touching the question as to the validity or invalidity of the bond filed. It is beyond dispute that the relators and their sureties filed the bond in the utmost good faith with the intention of securing to relators the right of appeal from the judgment rendered against them and to secure a stay of proceedings pending such appeal. A motion having been made by relators for leave to withdraw the alleged defective bond and substitute in its place one properly executed, and such motion being before the court at the time consideration was given to the motion to strike the alleged defective bond from the files, it was the plain duty of the court to have granted the first motion and to have denied the latter. 3 Comp. Laws, §§10409 and 10410.

In this court the claim is made on behalf of respondent that the alleged defective bond was not filed until the twenty-first day after the rendition of judgment. Attorneys for both plaintiff and defendants file affidavits showing that the judgment was rendered on the 24th day of December, while the judgment entry appearing in the record shows that it was rendered on the 23d day of December. The question is of no importance here, as it was not raised in the court below. Flynn v. Circuit Judge, 136 Mich. 23 (98 N. W. 740).

The writ will issue requiring respondent to vacate said order and to enter an order granting relators 5 days in which to file a properly executed bond with sufficient sureties, and 20 days in addition thereto in which -to settle a bill of exceptions.

Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.

The late Justice McALVAY took no part in this decision.