author: Steers, J.

text:
    ROGERS v. KEE.
    1. Physicians and Surgeons — Malpractice—Evidence.
    The evidence being in conflict as to the issue whether plaintiff was, at the time he consulted the defendant, his medical adviser, suffering from a fracture of the femur, the questions of the existence of such fracture and of the physician’s care or negligence in diagnosing his injury were for the jury.
    2. Same — Negligence—Surgical Work — Diagnosis.
    One who employs a physician is entitled to a thorough examination, such as the condition of the patient and circumstances permit, with such diligence and methods of diagnosis for discovering the nature of the ailment as are usually approved and practiced by medical men of ordinary skill and learning in similar localities; defendant’s failure to use such skill in discovering the existence of the fracture would be actionable negligence.

    8. Same.
    Evidence examined, and held, to raise an issue of fact whether the failure of plaintiff’s fracture to knit properly was due to the negligence of defendant who diagnosed the trouble successively as sciatica, paralysis, and locomotor ataxia.
    4. Same — Actionable Negligence.
    Any want of ordinary care which diminishes the chances of recovery, prolongs the illness, or renders the condition of the patient worse than it would have been if due skill and care had been employed, amounts to an injury recognized by the law.
    6. Same.
    And though experts testified that plaintiff, whose leg became shortened and crippled because the fractured bone knit imperfectly, made as satisfactory a recovery as if he had received proper treatment; until the testimony should prove that treatment was useless, the question was one of fact as to defendant’s negligence;

      6. Same — Charge—Instructing Jury.
    The court correctly charged the jury that if they found the result was all that could reasonably be expected, provided proper care had been provided, and the fracture discovered, the condition of the hip would not be a basis for damages; that defendant could not be held liable for the direct result of the original injury; that if they found that the hip was not in as good condition as it might be expected to be, under reasonable care and proper treatment, and plaintiff experienced pain or suffering to which he would not have been subjected under proper diagnosis, setting, treatment, etc., he was entitled to damages therefor.
    Error to Delta; Flannigan, J.
    Submitted April 12, 1912.
    (Docket No. 40.)
    Decided July 22, 1912.
    Case by Abraham Rogers against David N. Nee for malpractice. Judgment for plaintiff. Defendant brings
    error.
    Affirmed.

      I. O. Jennings {Bowen, Douglas, Maman & Barbour, of counsel), for appellant.

      John M. Tracy (P. H. Martin, of counsel), for appellee.

       Degree of care and skill required of physician, see note in 37 L. R. A. 830.
      Liability of physician or surgeon for .failure to diagnose fracture or dislocation, see note in 28 L. R. A. (N. S.) 136.

   Steers, J.

This action is brought to recover damages from defendant, a physician, for alleged malpractice in neglecting to properly diagnose a fracture of the neck of the left femur, when professionally called to attend plaintiff, and for unskillful and negligent treatment of the same. Plaintiff recovered a judgment for $1,000 on the verdict of a jury in the circuit court of Delta county, and the cause is brought here by defendant on writ of error.

There are 12 assignments of error, only 2 of which are relied upon and argued by defendant, each presenting practically the same question, being that the court erred in refusing to direct, a verdict for defendant at the close of plaintiff’s evidence, and again at the conclusion of the introduction of all testimony.

At the time of his injury, plaintiff was 55 years of age, a saw filer by trade, working in the filing room on the second floor of the sawmill of the Northwestern Cooperage & Lumber. Company at Gladstone, Mich. In the forenoon of August 27, 1909, while lifting a circular saw weighing from 130 to 140 pounds from an arbor, and turning to carry it, he felt something give way in his hip, causing him to drop the saw. He soon resumed his work, continuing during the balance of the day, mostly in a sitting posture, and walked home at night on an earth path, a distance of about half a mile, by the aid of sticks used as canes. He continued at his usual work the next day, which was Saturday, and the following Monday, walking to and from the same with some difficulty, using canes, sometimes receiving assistance from others. On Monday evening, August 30th, his condition was such that he called defendant to attend him professionally. Defendant was a regular physician in said city retained by the mill company for which plaintiff worked to professionally care for its employes. Plaintiff.informed defendant of the circumstances and nature of his trouble, said he thought it was a bad sprain in the hip, answered whatever questions were asked him by defendant, and submitted his case to him.

The testimony is in conflict as to much of what is claimed to have occurred during this and subsequent visits. Defendant testified that he found no symptoms of a fracture of the femur; that, if there had been any fracture or dislocation of the hip, he made such an examination as would have disclosed it; that, from his examination and the history of the transaction communicated to him by the plaintiff and his wife, he diagnosed the case as sciatica, and prescribed therefor the application of a mustard plaster; that he did not think plaintiff’s condition was caused by what occurred at the mill; that, upon visiting the patient the following day, defendant reached the conclusion from his statement that he then had no pain, that the trouble was not sciatica, but more probably paralysis ; that he ordered plaintiff to rub the muscles, but gave him no further treatment at that time because there was nothing further to do except to wait for developments; that he continued his visits for nearly a month, and was still uncertain what ailed plaintiff, but thought he had some spinal trouble and suggestions of locomotor ataxia; that the plaintiff was able to be up and around and walk, though with some difficulty; that he furnished him crutches on which he later visited defendant at his office.

The testimony of plaintiff and his wife was a distinct denial of many of the facts and circumstances related by defendant, their version being that, when first called, defendant, without making any physical examination, at once declared, the trouble was sciatica; that plaintiff was lying on the bed at the time, and told defendant of the severe lameness in his hip and the incident in the mill when he first felt the pain; that defendant then indicated on the hip where a mustard plaster should be applied, and left, having remained only about five minutes; that on the following day he made no examination whatever of the hip or leg, and on the fourth day, when he called, finding plaintiff sitting up, asked him to walk, and was informed that he was unable to do so, though with the aid of a chair he crawled to the bed to submit to an examination, when defendant felt of the parts, but made no movement of the limb nor measurements, and said everything was all right; that the hip was then swollen, and defendant gave instructions to massage and rub it with a certain liniment which he prescribed; that this was regularly done by plaintiff’s wife, according to instructions, and was very painful; that it hurt to move the limb and defendant was so informed; that the leg became shortened, and plaintiff called defendant’s attention to it, who pronounced it simply a temporary contraction of the sciatic cord, and, when asked in regard to consulting a specialist, said it would be useless and throwing money away; that on the eleventh day, without making any further tests, measurements, or diagnoses of any kind, he put plaintiff on crutches, and directed him to exercise the limb; that he had plaintiff swing his leg back and forth as much as he could to see what action could be produced; that after September 29th he entirely ceased to call or pay further attention to the case; that since the occurrence at the mill on August 27, 1909, plaintiff has sustained no fall or stroke upon his hip, or accident of any kind, to which his injury could be attributed; that since that time he has been a cripple, walking with crutches, getting around with difficulty and unable to'follow his trade; that he has tried to do so and was employed in a mill for about two months at one time, but had to sit at his work and have a man in attendance to carry the saws to him.

After defendant ceased his visits, plaintiff, on October 25, 1909, consulted Dr. Laing, a physician of Rapid River, Mich., who diagnosed the case and found him suffering from fracture of the neck of the left femur, and dislocation which had not been reduced, and which had existed for some time, a fibrous union having developed. The limb was shortened over two inches, and could be projected backward and forward, but not sidewise. He testifies:

“A fibrous union is a growth practically of flesh between the two joints, the two bones that are separated; that is, preventing the bony matter from uniting. This fibrouB union is likely to intervene if you do not get the bones in apposition, or a successful reduction of the fracture. By absorption of bone, or ligamentous union, or fibrous tissue forming between, I would say that very little can be done in a case of a hip joint, especially after 10 or 15 days. This fibrous growth is likely to intervene between the ends of the bones if you do not get a reduction before that time. Of course, it is very important to deter-. mine the fact at the earliest possible moment. That is generally recognized among practitioners.”

The various physicians who subsequently examined plaintiff and testified as experts in this ease confirmed Dr. Laing’s diagnosis and statement as to the importance of prompt attention to such cases, and the hopelessness of successful treatment after the lapse of any considerable length of time.

While it is claimed by defendant that plaintiff was not suffering from a fracture of the neck of the femur at the time he first visited him professionally, there was an abundance of- testimony to justify the court in leaving that question to the jury.

This fact being established, there was also abundant evidence to go before the jury on the issue of defendant’s negligence in failing to properly diagnose and treat the case, for, on the assumption that plaintiff was suffering from the fracture, as stated, when' defendant first visited him professionally, the testimony of physicians called as experts by both sides as to what he could and should have discovered and done is sufficient to raise an issue of fact as to defendant’s negligence in failing to properly examine, diagnose, and discover the fracture, in directing the patient to walk and move the broken limb, instead of keeping it quiet in one position, to aid a bony union, and in not informing him as to the nature of the injury, so he would be advised and could co-operate with his physician understandingly in the treatment given. All these issues presented mixed questions of law and fact.

The law is well settled that a patient who employs a physician is entitled to a thorough and careful examination, such as the condition of the patient and circumstances will permit, with such diligence and methods of diagnosis for discovering the nature of the ailment as are usually approved and practiced by medical men of ordinary learning, judgment, and skill, in similar localities. If, by the exercise of such care and skill, the fracture would have been discovered, a failure to properly diagnose is negligence, and it is the duty of a physician, in taking charge of a case where there is a broken limb, to inform and instruct the patient as to his conduct and what caution should be observed in moving or using the limb while it is being treated. The charge of the court was clear and correct upon such questions, and no assignments of error are urged against the instructions, provided the case as a whole could properly be left to the jury.

The serious proposition urged and argued by defendant’s counsel is this: Assuming that defendant did or omitted to do all that is claimed by plaintiff, and conceding that the testimony will support the jury in so finding, there is no proof that plaintiff suffered any injury as a result; the testimony, on the contrary, showing as good a recovery as ordinarily obtains under skillful treatment with a patient of plaintiff’s age following a fracture of the neck of the femur. In support of this contention, counsel for defendant say in their brief:

* ‘ Of the nine physicians who took the stand, all, with the exception of Dr. Axtell as above noted, and one other, Dr. Mitchell, were asked the following question:
“ ‘ Would you not say that the plaintiff’s limb shows as good results following a fracture of the neck of the femur as would ordinarily be obtained in -a patient of his age under skillful treatment ? ’
“ The wording of this question was varied in some instances, but in substance it was the same in every case. .Of the seven physicians asked the question, six answered ‘Yes.’ The other, Dr. Laing, testified that he could not say whether it was or not.”

An examination of the record discloses that such answers were given. These answers, standing alone, seem to negative the claim that the condition of plaintiff’s limb is attributable to anything defendant did or omitted to do.

That the correct treatment and probable results were scientific questions, is undoubted, and the law seems well settled that malpractice must be substantiated by the testimony of expert witnesses in order to prevail; it being proper for other witnesses to testify as to the treatment and acts of defendant and the province of experts, physicians and surgeons, to say whether or not the same was proper and the probable results. Wood v. Barker, 49 Mich. 295 (13 N. W. 597); Spaulding v. Bliss, 83 Mich. 311 (47 N. W. 210); Farrell v. Haze, 157 Mich. 374 (122 N. W. 197); Chase v. Nelson, 39 Ill. App. 53; Ewing v. Goode (C. C.), 78, Fed. 442. It is defendant’s own testimony that he did not diagnose the ease as a fractured femur, that such condition did not exist, and he gave no treatment for such an injury. As a result, the questions for the experts resolved themselves largely into the difference between proper treatment and no treatment at all. The allegations relate to offenses of omission rather than commission. We think, however, there is testimony from which injury to some extent might be inferred from the treatment given. Defendant diagnosed the trouble successively as sciatica, paralysis, and loco-motor ataxia. So far as he administered any treatment, it was for those maladies. He directed the application of a mustard plaster, and later massage and rubbing the injured hip with a liniment. Plaintiff testifies this was very painful. Pain and suffering from a wrong treatment are an element of damage. He directed plaintiff to walk and exercise the limb. Portions of his own testimony indicate this would be injurious and contrary to a proper treatment. He testifies:

“ If I had discovered a fracture of the neck of the femur on my first visit, I would have applied an extension and kept him confined to the bed for some time, if his condition would have allowed it. The purpose of applying the extension would have been to keep the leg from shortening. That is all I could have done; apply an extension and require rest. That is recognized as proper treatment, I would have sent him to bed as long as he could have stood it.”

Modifying this later in his testimony, he said, among other things:

“Sending him about on crutches,wouldn’t aggravate the condition, if he had a fracture, necessarily. Assuming that he did have a fracture at that time, I don’t know about it. If he had a fracture, it might possibly aggravate the symptoms. On the other hand, it might be the best possible thing for him. I don’t think it would aggravate the symptoms if he moved about with the knowledge that he had a fracture, necessarily. It might be a benefit to him. It would depend on his physical condition. * * * If he was a strong man, he would be better in bed.”

Dr. Minahan testified in relation to the plaintiff:

“ I observed with reference to this plaintiff, whether or not he appeared to be strong, resolute man or otherwise. He seemed to be very strong.”

Counsel for plaintiff do „not base their claim on the proposition that he necessarily or probably would have had perfect recovery if properly treated. They say it is based upon the complaint that he unnecessarily “ has a wobbly leg, with an extreme degree of mobility in the joint, a leg that pulls several inches each way, in and out of the socket, a useless leg.” The exact condition of the leg is not so clear on the record as it apparently was on the trial, where plaintiff was .present; and, as indicated by certain questions and answers, there was ocular demonstration of its mobility. Defendant, in reply to a question, says:

“ I did see the manner in which plaintiff can project his limb now, pull it out of the socket and set it back. There is mobility there.”

Dr. Axtell testifies:

“ I found by a radiograph examination that there is no neck of the particular femur under examination. The neck has all been absorbed and gone.”

The reply given by the experts, in answer to a leading question, in which they say plaintiff’s present condition is as good as they would expect under the best surgical treatment in a man of his age, standing alone, might, perhaps, be construed as meaning that medical attendance in such cases is useless and no benefits from it are to be expected, or that, if plaintiff had been given proper treatment, he would have received no benefits and enjoyed no prospect or probability of being in a better condition; but, in the light of their testimony taken as a whole, we cannot so construe it. They testify that fractures of this nature are serious and difficult to treat,.that they are sometimes fatal, that perfect union and complete recovery is not the rule, and is less probable in elderly people; but they do agree that medical attendance is essential and some treatment should be given to restore the fracture, with a view to getting either a bony or fibrous union.

Dr. Reynolds, a surgeon of 20 years’ practice, sworn on behalf of defendant, testifies:

“A fracture of the neck of the femur is an easy matter for a physician to determine, unless it might be a case of impaction. * * * I don’t know of any case where I would not apply any treatment at all. * * * The bones of one man at 55 might knit, and the bones of another man at the same age not knit, under precisely the same circumstances, * * * In the absence of a bony union — excluding the question of a bony union — ‘there is a more or less useful cartilaginous union. * * * I would always apply treatment, with some hope of getting some beneficial results, unless I realized that my treatment would prove disastrous to life. * * * And, if you should not succeed in getting a bony union, there is a difference in the value of the fibrous union that you get; that is, some fibrous unions are better than others. * * * The usefulness of your joint depends upon the length of the fibrous tissue. In the event that you have a very small amount of shortening, you will have better results in the fibrous union. You will also have better results where the neck of the femur is not distorted.”

Dr. Mitchell, called by the defense, testifies:

“Well, I don’t think I would recommend swinging the injured limb or resting the body on the injured limb while up and around. It would retard union. It would aggravate the condition. Produce pain if there was a fracture. Increase the mobility, and render the prospects of having a useful limb very improbable.”

Dr. Miller, called also by defendant, testifies:

“I would deem it good practice and advisable to let the injured person know that there was a fracture, and that he should be careful about moving and handling the injured member. * * * We expect to get some results from that treatment that are beneficial, and we hope to get a better joint than we will if you leave the thing to chance, without treatment of any kind. * * * I do not know of any case that we would leave to mere chance; and not only leave it to mere chance, but leave the patient ignorant of the fact that he had a fracture, in order that he would exercise due caution in regard to his movements. Suppose he did do something that might do harm. _ It would work harm by increasing the pain and retarding the recovery, possibly prevent a bony union. * * * If we cannot get a bony union, if we do not expect to get a bony union because of age or other conditions, then the endeavor is to get the best cartilaginous union possible.”

Dr. Bjorkman, another of defendant’s witnesses, testifies:

“ I know the method called the ambulatory method. It consists of letting the patient be about, having free use of his limb, so that he may get proper exercise. This treatment may either be carried out by splints or dressings, plaster of paris dressings, or cast, or it may be carried out by simply bandaging the limb and let the leg hang free, or it may be carried out by splints which support the whole limb from the feet, extending above the thigh. * * * And, when we do not use the ambulatory method, we use the extension, so called. The extension method is also a universal method recognized by all physicians and practitioners. We put the patient at rest with a weight attached below his foot. I would apply the extension method so as to overcome the shortening as much as possible, and so as to keep the fragments in apposition as much as possible. I do know of cases where I would not apply either method. It depends upon the age of the person. Take a man who is robust and able to work every day, 55 or 56 years of age, I would apply some one of these methods if I diagnosed the,case.”

These excerpts illustrate the nature of the testimony given by the various physicians relative to proper treatment of such an injury. Such testimony imports clearly that a patient suffering from such an injury, on calling a physician, is entitled to approved methods of treatment from which experience of the profession indicates beneficial results are probable and to.be anticipated; and, if not an entire recovery, a better ultimate condition than if left to chance. If so, can it not be legitimately inferred by a jury that plaintiff, a strong man, who, untreated and with his recovery left to chance, “shows as good results as would ordinarily obtain in a patient of his age under skillful treatment,” if properly and skillfully treated would, in all probability, have a better recovery and be in yet better condition ? We think such testimony presents an issue of fact for the jury — on probability, it is true. The issues of sickness and healing, life and death, are too uncertain to be otherwise forecast, but negligence which deprives a man of such probability is more than injuria sine damno.

What would constitute an injury to the plaintiff in an action like the present has been thus defined:

“Any want of the proper degree of skill or care which diminishes the chances of the patient’s recovery, prolongs his illness, increases his suffering, or, in short, makes his condition worse than it would have been if due skill and care had been used, would, in a legal sense, constitute injury.” Craig v. Chambers, 17 Ohio St. 253.

We think there is testimony in the case, controverted in many essentials it is true, but tending to show that, when defendant was professionally called, plaintiff was suffering from a fracture of the neck of the left femur; that a proper diagnosis would have disclosed it; that defendant made no proper diagnosis, and did not discover it; that the experts agree some approved treatment should be administered to such an injury promptly, delay rendering subsequent efforts futile; that defendant gave no proper treatment; that the treatment he did prescribe was, so far as it had any effect, painful and deterrent; that with the patient quiet and the limb at rest with the broken ends of the bone as nearly as possible in apposition a bony union was possible and a better fibrous union probable; that the patient should be advised and instructed as to the nature of his injury and his movements to avoid interference with the treatment;- that defendant did not advise plaintiff of the nature of his injury, did not direct rest and quiet, and confinement to the bed, though plaintiff was a strong man, able to stand it, but allowed and advised him to walk and exercise the limb, tending to work the head of the fractured bone up and down in the muscles of the hip; that plaintiff’s recovery is limited to a poor fibrous union with a loose and mobile joint; that by his erroneous treatment and advice defendant precluded plaintiff from obtaining other medical attendance till it was too late. Until the learned experts testify that no treatment would avail or be beneficial, that no better results are probable with treatment than without — in other words, that a physician is useless in such a case (and they have not so testified here)-^-we think such facts present an issue for the jury.

The learned circuit judge cautioned the jury that defendant could, under no circumstances, be held responsible for the direct result of the original injury. He further said:

“If you find that the result to the plaintiff’s hip as it is here today is all that could reasonably be expected to result under all the circumstances of his case, as disclosed by the evidence here, provided the fracture had been seasonably discovered and properly treated, then the present condition of the hip would not form a basis for any damages in the case. It is reasonable, gentlemen, to say that if the result to the plaintiff today is exactly what it would have been if the defendant had discovered seasonably and properly treated the fracture, that he has sustained no damages on account of the condition of the hip. But, if you find the condition of the hip is not all that could reasonably be expected to follow by reasonable discovery and treatment of the fracture, and if you find that the plaintiff experienced pain, bodily and mental, or either one, or both pain and suffering which he would not have experienced had the fracture been seasonably discovered and properly treated, then you may allow him such sum as you deem just and reasonable in compensation for such pain and suffering, bodily and mental, resulting from the defendant’s negligence.” . .

We think the case was properly submitted to the jury under a clear and correct charge/

The judgment is affirmed.

Moore, C. J., and McAlvay, Brooke, Stone, and Ostrander, JJ., concurred. Blair and Bird, JJ., did not sit.


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    HOEFT v. KOCK.
    1. Judgment — Appeal and Error — Joint Dependants — Default.
    When a judgment against joint defendants, a part of whom appeal, is reversed, the cause must be tried again de novo as to other defendants who defaulted and suffered judgment to be entered against them; they stand on the same footing as the appealing defendants.

      2. Same — Motions.
    It was erroneous to wait more than ten years after reversal of a judgment as to appealing defendants and then cause judgment to be entered without notice as to others who defaulted; a second trial having resulted in a verdict and judgment against plaintifE’s claim.
    3. Same — Courts—Vacating Orders — Notice.
    While the regular way to vacate such a judgment is by motion and on notice to the adverse party, the court did not err in vacating it ex parte without notice, and the action might have been taken upon the court’s own motion.
    Certiorari to Wayne; Donovan, J.
    (Docket No. 100.)
    Submitted April 12, 1912.
    Decided July 22, 1912.
    Case by August Hoeft against Jacob Kock, Charles Uelsmann, Gustave Rogge, and Albert Clemens for fraud. Orders vacating a levy on property of defendant Rogge, and recalling execution, are reviewed by plaintiff on certiorari.
    Affirmed.

      William Look, for appellant.

      Washington I. JSobinson, for appellees.
   Steere, J.

This is a certiorari to the Wayne county circuit court to review its action in making two certain orders dated May 3 and 27, 1911, which, together, briefly stated, recalled an execution issued in the above-entitled cause, stayed a levy made thereunder, released such levy, and declared such execution null and void, and denied a motion to reconsider and vacate the same. The judge who made such orders having retired from the bench, the return to this writ was prepared by the clerk of the court, who attested that .various copies of the files and records in the case, including plaintiff’s affidavit for writ of certiorari, constituted all of the proceedings of said court to be found in relation to this matter, which attestation was certified by the presiding judge of said court. The case, in some of its varied phases, has twice been before this court. It was commenced in 1896 by plaintiff against four defendants, Jacob Kock, Charles Uelsmann, Gustave Rogge, and Albert Clemens. Its purpose was to recover damages from said defendants by reason of fraudulent misrepresentations alleged to have been made to plaintiff by defendants, acting in conjunction, which induced him to purchase a certain amount of stock in the American Brass & Metal Works, of Detroit, in which defendants were stockholders and officers. Personal service was had on all the defendants. Defendants Kock and Uelsmann appeared by attorney and pleaded. Defendants Rogge and Clemens did not appear in person or by attorney, and their default was duly entered on May 14, 1897. In October, 1897, trial was had before a jury in the Wayne county circuit court, resulting in a verdict against all said defendants for $2,398, upon which judgment was entered October 29, 1897. Defendants Kock and Uelsmann, by writ of error, removed said cause to this court, and the judgment was reversed on March $, 1899, the opinion being reported in 119 Mich. 458. On March 23, 1899, remittitur was filed in Wayne circuit court, and a new trial was had in April, 1899, resulting in a verdict, by direction of the court, in favor of defendants, from which plaintiff appealed to this court by writ of error, and on March 16, 1900, the judgment in defendants’ favor was affirmed by an opinion found in 123 Mich. 171. Thereafter, from March 16, 1900, to June 13, 1910, being approximately 10 years, matters remained dormant and no further proceedings were taken, when plaintiff, through counsel who had not before appeared in the case, applied to the court for, and obtained a judgment against defendants Rogge and Clemens, on the strength of the default entered in the spring of 1897, for $3,910.07. An execution was issued thereunder on June 30, 1910, returnable July 30, 1910, by virtue of which, on July 38, 1910, levy was made upon certain real estate in the city of Detroit, belonging to or claimed by defendant Rogge. Due return with certificate of levy was indorsed by the sheriff, dated February 7,1911. On April 38, 1911, a new execution was issued by order of the court, on application duly made, for the reason that the previous levy made on real estate was inadequate and certain property of which the sheriff had no knowledge at the time of making his first levy had since been learned of by him. This second execution was made returnable May 30,1911. Levy was made under it May 3, 1911, on certain goods and chattels of said defendant Rogge and on his interest in certain other real estate. Thereupon said Rogge, on May 3, 1911, without notice to the plaintiff or his attorney, filed and presented to the judge who had rendered the default judgment aforesaid and had authorized the issuance of said executions an affidavit setting forth that this suit was begun on September 9, 1896, and judgment taken against him by default on October 39, 1897, being the time of the first trial, for the sum of $3,-398; that since then he had continuously been a resident of Wayne county and had received no notice of any kind, or service of process for renewal of said judgment, and first learned of the same when levy was made by the sheriff under the alleged new judgment on May 3, 1911. On May 3, 1911, on such ex parte application, without notice, an order was made recalling execution and staying the levy as aforesaid. Subsequently a motion was made by plaintiff’s attorney to vacate said order, which motion was heard and argued, whereupon the court denied such motion to vacate, and, in addition thereto, ordered the release of said levy and execution, and declared such judgment and execution null and void, stating that he did so—

“After hearing said motion and the oral arguments of the counsel for the respective parties, and being fully advised in the matter, and being now convinced that the judgment taken by the plaintiff against said Gustave Rogge, one of the defendants in said cause, on the 14th day of June, 1910; upon default, is void.”

It is the contention of counsel for plaintiff that upon reversal of the original judgment against all four defendants on March 6, 1899,' ordering a new trial, on filing a remittitur, the cause stood ¿s to all the defendants, whether joining in the appeal or not, as though it had never been tried; that upon the first reversal, after said cause was returned for retrial in the circuit court, plaintiff could and did make severance of defendants, and proceed against defendants Kock and Uelsmann, who had appeared and pleaded, leaving the case standing, in the meantime, by default, without judgment as to defendants Rogge and Clemens; that he could, at such time as he saw fit, subsequently take judgment by default previously entered against defendants Rogge and Clemens, without notice, which was regularly done on June 13, 1910; that he was entitled to execution therefor, and the ex parte order of the circuit judge recalling such execution was without authority of law, as well as his subsequent action in denying plaintiff’s motion to vacate the same, and adjudging, in that connection, that said default judgment was null and void.

It is the claim in behalf of defendants that the original judgment against defendants who did not join in the appeal remained unaffected by the appeal taken by others until it became barred, 10 years later, by the statute of limitations that, if not, the decisions and judgment of this court, as to right of plaintiff to maintain the action, inured to the benefit of all the defendants and the matter is res adjudicata; that plaintiff, by long delay under the circumstances surrounding this litigation, is guilty of laches; that the court, when other and new counsel appeared in the case, having inadvertently granted the judgment, on his attention being subsequently called to the oversight, as manifest from Supreme Court decisions and the records of his own court, had full authority, without notice and of his own motion, to correct the mistake, and declare the unauthorized judgment void.

The judgment rendered upon the first trial, reversed March 6, 1899 (119 Mich. 458, 78 N. W. 556), was entire and indivisible against all four defendants and jointly binding. The general rule that a joint judgment when reversed as to one is reversed as to all, and the case stands for trial de novo as though it had never been tried, was early announced in this State. Powers v. Irish, 23 Mich. 429; Matteson v. Nathanson, 38 Mich. 377. Some exceptions and modifications to this general rule have since been made. Sutherland v. Ingalls, 63 Mich. 620 (30 N. W. 342, 6 Am. St. Rep. 332); Moreland v. Durocher, 121 Mich. 398 (80 N. W. 284). In Hall v. Calhoun Circuit Judge, 123 Mich. 555 (82 N. W. 229), it was held, where “judgment is reversed and a new trial ordered,” the effect is to render a new trial in the court below necessary before any judgment can be enforced in favor of a plaintiff. It is said that, after the first reversal of the cause, plaintiff severed the defendants and proceeded on the second trial against Kock and Uelsmann only, upon the theory that they were individually liable. The published report of the decision in this court, reviewing the second trial, does not indicate any special severance or new theory of individual liability which presented the relative status of defendants in any different light. It is the same case, with the same title, retried" in the court below, and verdict directed for defendants and sustained on review. 123 Mich. 171 (81 N. W. 1070, 81 Am. St. Rep. 159). An examination of the printed record of both trials filed in this court discloses no change of theory, pleading, or status of the parties except the following statement in the second bill of exceptions:

“ The defendants Jacob Kock and Charles Uelsmann each pleaded the general issue. The defendants Gustave Rogge and Albert Clemens did not appeal in the case, and their defaults were duly entered and judgment was entered against them.”

Whether the judgment thus referred to is the joint judgment on the first trial or some separate judgment by default, of which no record appears anywhere in the cases before us, is a matter of conjecture. The printed record referred to was filed in this court in 1899. If such statement as to the existence of a judgment is to be accepted, it had outlawed when the judgment now under consideration was entered. The declaration in the case was the same in both trials, on the theory of a conspiracy and cooperation between defendants to deceive and defraud plaintiff and induce him to purchase stock which was an overissue, worthless, and in violation of law. In their briefs plaintiff’s counsel strenuously insisted it was a joint conspiracy, based on co-operation, urging that—

“ It required the combined efforts and acts of them all to fully accomplish the fraud upon him. The acts and conduct of each of the defendants in the whole matter are so interwoven with each other that proof of the acts and conversations of one when taken in connection with the parts the other played in the transaction would bind them all. * * * The acts and representations of all the defendants were fraudulent and the conduct of each of them is so connected with that of the others that it is clear that they understood what was to be represented by each other in selling the stock to the plaintiff.”

On this theory, urged by counsel and borne oqt by the pleadings, a proper decision of the case involves, and must apply to, all the defendants, and the whole matter, so far as the merits of the controversy are concerned, is res adjudicata as to all, provided those in default, who did not join in the appeal, are entitled to the benefit of the appellate court’s decisions.

It is laid down as a general rule in 23 Cyc. p. 808 that—

“ Where one defendant suffers a default, while the other pleads and goes to trial and defends successfully on a ground not personal to himself, his success will inure to the benefit of the defaulting defendant, and judgment must be rendered for both. On the other hand, if plaintiff obtains a verdict against defendant who answers, he is then entitled to a joint judgment against all the defendants. And it would be erroneous and improper to render judgment against that defendant alone who answered; both must be joined in the judgment as in the action, although it is proper and usual to enter an interlocutory judgment against defendant who defaults, to await the trial of the issue as to the other.”

In this case the ultimate result of the trial of the issue as to the others who appealed was no cause of action. While it has been recognized as a general rule that only the rights of the parties before the court can be adjudicated on appeal, it has, nevertheless, been held that where the parties appealing and those not appealing stand upon the same ground, and their rights are involved in the same question and equally affected by the same judgment, the court will consider the whole case and settle the rights of all parties even though defendants not appealing are in default. Wood v. Cullen, 13 Minn. 394 (Gil. 365); Alling v. Wenzel, 133 Ill. 264 (24 N. E. 551); Tompkins v. Wiltberger, 56 Ill. 385; Mohr v. McKenzie, 60 Ill. App. 575; Bradford v. Taylor, 64 Tex. 169. This rule, applied to the case at bar, would seem to dispose of it.

The disposition of this case, however, does not necessarily turn on an absolute application of the principles above stated. They arise contingently. If they do apply, the rights of defendants are res adjudícala, and the default judgment in question is invalid. If they do not apply, and the previous judgment against defendants stood, it was outlawed. It could not in any case have been renewed without resuit and service of process. A judgment without notice on an old default upon which judgment had once been taken was a nullity.

After affirmance of final judgment, on a verdict directed for defendants at the second trial, counsel who had been actively in charge of the litigation up to that time apparently regarded it as'ended. We discover no substitution of attorneys in the record, but, at the expiration of a decade, new counsel ask the court for a judgment by default and obtain it. Such a proceeding is largely formal and routine work, often perfunctory, and hastily disposed of in the confusion of business. With no one to raise any questions against what is asked, inadvertent and erroneous action may result. When it becomes manifest to the judge on investigation that such action was through a misunderstanding, without authority of law and void, we think it was an inherent power of the court, on application of a party interested or op its own motion, to revoke such action and declare it a nullity.

In all fairness due notice should be given to the party against whose interest the contemplated action is proposed, but in this case ultimately, and before final disposition of the case, all parties in interest were heard and the questions argued and considered. v

The judgment of the learned circuit judge is affirmed, and the writ denied.

Moore, C. J., and McAlvay, Brooke, Stone, and Ostrander, JJ., concurred. Blair and Bird, JJ., did not sit.


text:
    CARPENTER v. CARPENTER.
    1. Infants — Custody—Husband and Wife — Contracts—Public Policy — Divorce.
    Provisions in a contract of separation awarding the custody of an infant son to the father, with permission to the mother to visit the child, do not control the court in awarding the custody of such child in subsequent divorce proceedings, although the agreement is not invalid or contrary to public policy. The question which determines the action of the court is usually and primarily the best interest of the minor.
    2. Same.
    Evidence considered, and held, to justify an order of the trial court awarding the custody of the child to its mother, with permission to the father to visit the minor and to have possession at stated intervals.
    Appeal from Grand Traverse; Mayne, J.
    Submitted April 11, 1912.
    (Docket No. 115.)
    Decided July 22, 1912.
    Petition by Perlie P. Carpenter against Ora A. Carpenter for the custody of an infant son of petitioner and respondent. From a decree for petitioner, respondent appeals.
    Affirmed.

      John W. Patchin, for complainant.

      Underwood & Umlor, for defendant.
   Steere, J.

This is the third time the parties hereto have been before this court with their domestic infelicities. In 154 Mich. 100, their small property interests were the topic of discussion and the subject of adjudication. In 149 Mich. 138, their youngest child, Willard W. Carpenter, then an infant, was the apple of discord, presenting a more trying and serious contention. In the latter case the action of the learhed circuit judge, awarding custody of the child to the mother, with provision that the father should have the right to visit it at all reasonable times during the daytime, be notified of its sickness, allowed to provide proper medical care, etc., was affirmed. This court there said, through-Justice Grant :

“ It is certainly to be hoped that these parents, if they cannot live together in harmony and take care of their offspring as they ought to do, will at least have the good sense to agree to what is for .their children’s best interests.”

Subsequent proceedings indicate that, while the learned justice made a commendable effort in leading these parties to the fountain, he was unable to make them drink. The record of this case shows that divorce proceedings have since been instituted and carried through to final decree, resulting in severance of the marriage ties, in which the custody of this child was again the subject of bitter contention.

. The decree of divorce, granted on October 14, 1909, gave the legal custody of said child to the father, with a provision that from the 1st day of November until the 1st day of June, 1910, the child should remain with the mother in Traverse City, during which time the father should have the right to visit it on Saturdays and to take it to his home during holiday season.between terms of the public schools; but that during the period from June 1st to November 1st the child should remain with the father, in his complete care, custody, and control. In case of sickness, the father should be notified, and have the right to employ a physician for the child; the purpose of the order regarding sickness being occasioned by the fact that the mother is a Christian Scientist, and does not believe in the administration of medicine in case of sickness. In July, 1911, complainant filed this petition asking the court for full custody of the child, alleging as reason therefor that the father claimed the provisions of the order relative to the child, just referred to, terminated on the 1st day of November, 1910; that, under the terms of the decree, defendant claimed to be entitled to the custody of the child thereafter, without regard to any rights of the mother or the wishes of the court, as announced from the bench, and that he has kept the child from her custody continuously from the fall of 1910 until the 20th of March, 1911; that she fears, from defendant’s conduct, that he will refuse in the future to release the custody of the child to her for any period, unless the previous decree be modified so as to give her custody and control. She also, claims, in her petition, that she has a good home for the child, being engaged in the keeping of boarders in Traverse City, and so situated as to be able to furnish him the advantage of good schools, with a mother’s care and proper surroundings.

The defendant, in answer and by cross-petition, admits the decree making provision relative to the child, alleges that it was advisedly made and carefully read over and corrected by the court, that thereby defendant is entitled to the legal custody of the child, without modification or restriction, after the 1st day of November, 1910. Each of the parties alleges, in pleading, and introduces much testimony tending to sustain the claim, that the child would be much better off with him or her than with the other.

That the marriage of these parties was foreordained to failure is perhaps manifest from their charges and allegations in regard to each other, supported by the testimony of numerous witnesses on each side, evidently respectable and worthy people, who testify fully in regard to the good reputation, character, and standing of each, with some comparative qualifications oneway or the other in accordance with their respective points of view. It is the claim and evidence of complainant that she is specially qualified tocare for and educate the child; that she is a school teacher of many years’ experience, having first grade certificates for teaching school in different States, has warm love and affection for the child, as well as other children she had by a former husband; that she is able to furnish a good home, for him, with all the advantages of good schools, while defendant resides in the country, is a man of very limited education, of little means, and small capability for earning a livelihood even at farm labor, which is the only work he understands, and that the only home he has is with his father and mother on a small farm; that his parents are old people, over 70 years of age, and not, at their time of life, the most proper people to have the care and bringing up of a child of tender years. She does not dispute defendant’s good character and standing in the community; neither does he hers. Defendant alleges, and produces testimony to support his claim, that he has morally clean, wholesome home surroundings with his parents, where suitable religious and moral training can be given his child, together with school facilities by no means secondary to the public schools of Traverse City; that he resides upon a farm where this child can have plenty of exercise:

“That he loves his son, and desires to rear him the best he can under the example of a God-fearing father who neither uses tobacco in any form nor intoxicants of any kind, nor indulges in profanity or vulgarity, and means to be honest and fair in all his dealings with his fellow men, lives in a well-developed and prosperous farming community where the morals and society are such as are usually found in such a community in this county, and he avers that such a place, with proper home surroundings, is one of the-best places to rear children, and develop a boy and equip him with a strong mind and a strong body.”

He also throws light upon the cause of this dissension by the statement that 'he is a member of the Methodist Episcopal Church, and—

“ That complainant is an active member of the First Church of Christ, Scientist, of Traverse City, Mich., and professes to believe in the doctrines and tenets of that so-called religious denomination, and does not believe in giving medicine in case of sickness, and is not, in that regard, at least, a suitable person to rear and care for said Willard Carpenter, who is now of the age of seven years and over.”

On these various propositions the respective parties, with their witnesses, line up and present their conflicting claims to the court.

Early in their domestic troubles, upon first separating in December, 1905, these parties entered into a written agreement, touching their property and the custody of their children, by which it was provided, as recited in 149 Mich. 138, that the father should—

“Retain such custody (of the youngest child) so long as he gives the child proper care, support, and suitable home surroundings, subject to the right of said Perlie B. Carpenter to visit said child at reasonable intervals.”

Counsel for defendant and appellant strenuously contend that this contract was binding upon the parties and should be enforced by the court, and should control the court in the disposition of the child, irrespective of anything which may be shown as to comparative qualifications and ability to care for him, so long as it is not established that the child is without proper care, support, and suitable home surroundings. The contract of separation of December 11, 1905, was not in contemplation of subsequent divorce, but only “hereafter to live separate and apart from each other ” as husband and wife, so far as shown. Such a contract does not control, and need not be regarded by the court in awarding custody of the children in divorce proceedings instituted subsequent to the contract. Kremelberg v. Kremelberg, 52 Md. 553. While contracts of this nature are not regarded as against public policy and good morals and are recognized as valid as a class, it has always been regarded as the duty of the courts, in reviewing them, to enforce or reject their provisions according to the best interests of the child, and to hold that as the paramount consideration. In People v. Porter, 23 Ill. App. 196, it is held, in effect: If a contest arises over it in the courts, all considerations will be subordinated to the interests and welfare of the child, viewed, in the light of the character and habits of the contending parties, the fact whether the reclamation is sought within a short time or after the lapse of years, and the other circumstances of the particular case.

The question now raised was before this court in 149 Mich. 138 (112 N.W. 748), when the parties were yet husband and wife, though separated, and before divorce proceedings were instituted. It was there said:

“A husband and wife, on separating, may make a valid contract for the care of their minor children. Such contract, while valid between the parties, will not be sustained to the detriment of the minor child, whose interests are of the first consideration. * * * Counsel for respondent in their brief ask:
“ ‘ Are we to assume that courts are better qualified to say who shall have the custody of minor children than their natural parents ?’
“The instant answer to this question is:
“ ‘ Yes; when it appears that the child is not, by the parents, or either of them, placed amid proper surroundings.’ ”

The learned circuit judge, whose action is now sought to be reviewed, is inevitably thoroughly familiar with the issues of this litigation, having had to deal with it in its various phases from time to time for years past. His several findings and conclusions on the questions involved show that he has given it much attention. He is on the ground, familiar with the parties and their witnesses. We think it manifest from his utterances and orders that he has sought to look only to. the best interests of the child, is fair, impartial, and without prejudice as between the parents, and anxious to arrive at what is just and right. He says, amongst other things:

“ In the conduct of the legal proceedings following the separation of the parents much ill feeling has been shown, and the interests of the child not considered. Were I to take into consideration only the parents and their desires, I should certainly award the custody of the child to the father, but the interests of the child, Willard Carpenter, require that his custody be awarded to the mother. Inasmuch as I am thoroughly convinced that neither party will respect this order except as the court has the power to enforce the same, and the mother having no property interests to cause her to remain within the jurisdiction of this court, the legal custody of the child is awarded to the father, Ora A. Carpenter, but the mother, Perlie P. Carpenter, shall have the actual custody and possession of the child during the school year, commencing on this date and ending on the last day of the school year of Traverse City schools. The father shall have the actual custody and possession of the child during each alternate Saturday, weather permitting him to take the child to his home, also on all vacations of one week or more in duration. It is the intent of this order that the father shall have the care and custody of the child during all vacations of one week or longer, and every alternate Saturday, and the mother shall have the care and custody of the child during the school year of the Traverse City schools, until the further order of this court. My principal reason for awarding the custody of the child to the mother is that I consider her a woman of unusual ability in the training of children, and, further, because I find that the child is not as far advanced in school work as he would have been had the order of the court relative to the custody of the child been respected.”

After a careful review of the testimony, in connection with the above finding and adjudication, we have no disposition to disturb the decree. Were it not for the bitterness existing between the parents, the testimony indicates that the child is fortunate in the particular that both parents are persons of good "character, moral, religiously inclined, fond of and desirous of keeping him, and either could and would furnish him a fairly good home with parental care and affection. The cloud upon his horoscope, presented by this record, is the possibility of ultimate litigious paranoia through heredity or contagion. Experience teaches that children brought up under such a shadow often show the effects of it in after life.

The decree is affirmed, with costs.

Moore, O. J., and McAlvay, Brooke, Stone, and Ostrander, JJ., concurred. Blair and Bird, JJ., did not sit.


author: Steere, J.-

text:
    TYLER v. WRIGHT.
    Deeds — Evidence — Delivery — Adverse Possession — Limitations, Statute oe.
    In an action of ejectment, evidence tending to show that plaintiff’s grantor recognized the title of the record owners by executing a deed to one of- them, which, however, was never delivered, held, to raise an issue of fact, and that the defendant’s claim of title through adverse possession of her- grantor was properly submitted to the jury in pursuance of a previous decision of the court. Tyler v. Wright, 164 Mich. 606 (130 N. W. 205).
    Error to Berrien; Coolidge, J.
    Submitted June 14, 1912.
    (Docket No. 14.)
    Decided July 22, 1912.
    Ejectment by Ida-N. Tyler against Addie Wright, Louis Peotor, and Jacob Goodman. Judgment for defendants, plaintiff brings error.
    Affirmed.

      Gore & Harvey, for appellant.

      William C. Hicks, for appellees.
   Steere, J.-

This is an action in ejectment brought to obtain possession of, and, incidentally, to establish a clear title to, the east 18 feet of lot 6, block 23, of the original plat of the city of Benton Harbor, Mich., being a parcel of land 66 feet in length, fronting 18 feet in width on West Main street in said city. Plaintiff claims ownership and right of possession under a record title to said property, which, admittedly, stands in her name. Defendants Pector and Goodman dre not active litigants, only figuring in the case as tenants of defendant Addie Wright, who holds possession of, and claims, the lot in dispute under a life lease to her from one John Thomas, Sr., who died August 15, 1901, claiming to have title to said property acquired by continuous adverse possession for over fifteen years. The validity of his title is the controlling issue presented by this case. The question of adverse possession having been submitted, under careful instructions, to the jury by the trial court, a verdict was rendered in favor of defendants. A motion was then made by plaintiff asking that the court set aside said verdict and grant a new trial, for the reason that a verdict should have been directed in favor of the plaintiff on the undisputed facts, and that the decision of the jury was contrary to law, contrary to the overwhelming weight of evidence, the result of prejudice and passion, cannot be reconciled with the evidence on any theory of the case, and was in disregard of instructions given by the court. This motion was denied, and plaintiff has removed the action here for review.

This is the third time the title to said lot has been before this court for consideration. Thomas v. Sullivan, 138 Mich. 265 (101 N. W. 528); Tyler v. Wright, 164 Mich. 606 (130 N. W. 205). In the first case mentioned the two children of John Thomas, Sr., whose title by prescription is now in issue, and his wife, Catherine Thomas, who at the time of her death in 1885 held the record title, were litigating between themselves the validity of a certain deed from said Catherine Thomas to defendant Sullivan. The second case referred to is the one now before us, being then presented by defendant for review of a previous trial. The nature and history of the property, the relations and dealings of the parties, and the circumstances which gave rise to the dissensions resulting in this litigation, are fully recited in the above-mentioned cases, and need not be repeated here. On the first trial in the circuit court a verdict was directed for plaintiff, and defendant Wright brought the case here on writ of error. Tyler v. Wright, supra. It was then held on the record as presented that the character of John Thomas, Sr.’s, possession, after the death of his wife, was a question of fact for the jury, and a new trial was granted.

While, in some instances, more or different witnesses testify as to particular facts, the. record shows that on the retrial the essential facts proven or in issue were practically the same as before. No error is assigned on admission or rejection/>f testimony or the charge of the court. The assignments of error relate purely to the refusal of the court to grant plaintiff’s motion for a new trial. In his reasons for denying such motion the learned circuit judge, among other things,.said:

“ The case was removed to the Supreme Court, and the judgment was reversed on the ground that there was sufficient evidence to go to the jury.’ The facts brought out on the two trials were practically the same. It is true that in the opinion of the Supreme Court a mistake of fact was made in the statement that at the time John Thomas, Sr., made his will he undoubtedly knew that a certain deed executed by Mrs. John Thomas, Sr., to her daughter, Mrs. Catherine Sullivan, had been held void and inoperative by the Supreme Court of this State, as the decision of the Supreme Court in such case was not made till some time after the making of the will. I cannot assume, however, that the opinion of the Supreme Court in this case was based upon the transaction with regard to the will alone. The opinion indicated that there were facts sufficient outside of that particular fact to go to the jury. I must assume, therefore, that the matter is res adjudicaba because the facts developed on the two trials were substantially the same.”

The forceful brief in behalf of plaintiff, under the present condition of the case and the views already expressed by this court, is devoted mainly to an argument of the facts and rules of law which should apply to the facts contended for, urging, in that connection, that the former decision in this case should be overruled. It is manifest, as stated by the trial judge, that at the time John Thomas, Sr., made his will the deed from his wife to his daughter, left in his hands for delivery on certain contingencies, had not been held invalid by this court, and no reasoning can be predicated on his knowledge of its having been held invalid at that time. The inference stated in that connection, however, was not then, and is not now, regarded as a controlling factor.

Plaintiff gives much importance to, and urges as conclusive against the claim of hostile occupation, the conduct of John Thomas, Sr., on a certain occasion in 1898 or 1894 at a time when his son was threatening to make him trouble over the property. In fortifying himself against any such trouble, said John Thomas, Sr., sent for his daughter Mrs. Sullivan, and consulted an attorney as to the validity of the deed from his wife to the daughter, which he had in his possession. What occurred on that occasion is in dispute. It is claimed by plaintiff that he then delivered the deed to his daughter, and admitted her title to the property. It is undisputed that the attorney advised him a delivery of the deed was essential to pass the title, and it would be valid if delivered. It is claimed by the defendants that, although the daughter was allowed to examine it, it was not delivered. There is testimony in that connection that, having been advised it would only be valid on delivery, he took pains to enjoin it upon a witness who was present during the transaction to take particular notice that he had the deed and that it was not delivered.

We think the conflicting evidence in regard to that transaction presented a question for the jury. It is undisputed that he subsequently had and kept possession of the instrument. It was not recorded until 1902, after his death. It was, in truth, invalid. From the time of the death of his wife he continued to occupy, pay taxes on, assert ownership of, and retain control over, the premises up to the time of his death, making final disposition of it in his last will. When his wife died, their two children were of age, married, and had homes of their own. It is claimed that he was unfriendly with them, which is denied. His will indicates a very unkindly feeling. This was a pure question of fact. We think that whether he occupied the premises in recognition of, or hostile to, the title of his children, was for the jury to decide, from the conflicting testimony, under proper instructions. So far as this record shows, the trial was well conducted, fair, and impartial, with proper instructions, containing eight of plaintiff’s nine requests, in the exact language requested. We are not convinced that the verdict was so against the overwhelming weight of evidence as to require the court to interfere and set it aside.

The judgment is affirmed.

Moore, C. J., and McAlvay, Brooke, Stone, Ostrander, and Bird, JJ., concurred. Blair, J., did not sit.


text:
    BURGESS v. WAYNE CIRCUIT JUDGE.
    1. Appeal and Error — Settlement of Bill of Exceptions — Extension of Time — Motions.
    Except upon motion and oause shown or the written stipulation of the parties, the court is not authorized to extend the time for settling a bill of exceptions beyond 80 days from the time of judgment. Circuit Court Rule 47.
    2. Same — Waiver of Court Rule,
    These requirements can be waived only in writing duly filed and presented as a foundation for the action of the court, or by admission or stipulation in open court, in the presence and hearing of the court, who should make a minute thereof and recite it in the order made.
    Mandamus by John J. Burgess against Henry A. Man-dell, one of the circuit judges for the county of Wayne, to require respondent to vacate an order extending the time for settling a bill of exceptions, in a cause in which relator was plaintiff.
    Submitted July 11, 1912.
    (Calendar No. 25,113.)
    Writ granted July 22, 1912.
    Rehearing denied October 7, 1912.

      William Van Dyke, for relator.

      John Gibson Hale, for respondent.
   Steere, J.

In this proceeding, relator asks a mandate to compel respondent to set aside an order extending the time to settle a bill of. exceptions in an action in replevin, entitled John J. Burgess v. Pere Marquette Railroad Company, on the trial of which, in the Wayne county circuit court, on November 14,1911, plaintiff recovered a verdict awarding him return of an automobile, being the property in litigation, with damages of six cents.

It is claimed that the order in question was made more than 80 days after judgment rendered in such case, “ without good cause shown by affidavit on special motion after notice to the adverse party, or on written stipulation of the parties,” in violation of Circuit Court Rule 47 as interpreted by former decisions of this court.

The calendar entries in said case, which are conceded to be correct, show the following:

1911.
Nov. 14 Verdict for plaintiff for 6 cents.
“ 16 Twenty day stay of proceedings, 20 days to move for new trial, 60 days to settle bill of exceptions.
“ 27 Judgment for plaintiff for 6 cents. '
Dec. 4 Motion for new trial and notice filed.
1912.
Jan. 13 Motion for new trial denied.'
“ 24 Stipulation agreeing that bill of exceptions may be filed and signed nunc pro tunc as of Jan. 12,1912 (at anytime prior to Jan. 25), filed and entered.
Feb. 2 Opinion of court for denial of motion for new trial, signed, filed.
“ 3 Stipulation extending time 15 days to settle bill of excep-
tions, filed, entered.
5 Order fifteen days extension to settle bill of exceptions.
Mar. 4 Order extending time to settle bill of exceptions to and including March 16, 1912.
Mar. 9 Motion to set aside orders of March 4, 1912, and notice filed.
“ 16 Affidavit of John G. Hale as to settlement of bill of exceptions filed.
‘ ‘ 26 Motion to set aside extension of time, submitted and heard.
“ 30 Order denying motion to set aside extension of time to settle bill of exceptions, and order extending time tó settle • bill of exceptions, to and including April 20,1912.
Apr. 2 Motion to set aside order of March 30, 1912, filed.
“ 5 Motion to set aside order denied..

Judgment having been entered on November 27, 1911, an order granting further time to settle a bill of exceptions, made on March 4, 1912, must comply with Circuit Court Rule 476 to be valid. It is undisputed that no special motion was made in writing setting forth the grounds on which it was founded, filed, and served, as required in case of special motions under Circuit Court Rule 19. No cause, good or otherwise, was shown by affidavit, and no notice of the time and place of making such motion was given the adverse party. No Stipulation of the parties, in writing, was then presented or on file. The motion was made in the absence of adverse counsel, ex parte, oral and based on the court’s knowledge of the case and statements of moving counsel.

It is contended in support of the order complained of that all the various requirements of Rule 47 were waived by counsel in charge of plaintiff’s interests, not by any writings presented to the court and filed in the case when the motion was heard, nor even by oral stipulation between counsel in open court, but by the^conduct and statements of counsel “ within the knowledge of respondent from what was said and done by the attorneys to him and under his personal observation.” The briefs presented by counsel are not only bitter and recriminating, but travel outside the record in various statements-made. They charge lack of veracity and good faith. Their most useful purpose is to emphasize the importance of adhering to the rules and records of the court. At the hearing of the motion to set aside the order in question, counsel for defendant, in opposition thereto, filed on March 16, 1912, a lengthy affidavit giving in detail, from his standpoint, a history of the proceedings and sequence of events, telling of correspondence between counsel and various conversations and circumstances, the general purpose of which was to show he had been lulled into confidence that no advantage would be taken of his unfamiliarity with the practice of this State and consequent delays and irregularities. To the affidavit are attached six letters, two to the trial judge, three to counsel for plaintiff, and one from him to counsel for defendant, dated February 13, 1912, saying amongst other things:

“ Your letter of recent date has just been received by me owing to my absence in the east. Your papers entitled * Bill of Exceptions ’ were also received. I regret exceedingly having now to insist upon your settling the bill according to the practice of the court. * * * For the reasons stated, I have declined to recognize the papers sent me by you as being a proper bill of exceptions, and must now and hereafter insist upon a strict compliance with the practice of court by you.”

It could scarcely be claimed that, after this time, counsel for defendant was not advised as to the attitude of opposing counsel. A prompt compliance with the rules at that time would have avoided this complication. The return of respondent to this order to show cause was prepared by defendant’s counsel, and is, apparently, largely condensed from said affidavit. We do not find the return certain and satisfactory. It was evidently also an embarrassment to respondent himself.

Trial courts, busied with the regular routine work, have no time, and are not expected or required, to go into the details of long cases and prepare, returns to orders to show cause in mandamus proceedings, which are not an uncommon method of reviewing the court’s action. It is a recognized and proper custom for the judge, when served with an order to show cause, to turn the same over to counsel in whose favor the action sought to be reviewed was taken, with instructions to prepare a skeleton return to be submitted to the court and revised under his direction. When an exact, definite, and concise statement of such warranted facts as are desired and deemed material to the order to show cause, together with the requisite copies of files and records, have been prepared, the same is submitted to the court for rbview, after which such corrections and additions as he dictates are made until approved by him, when it is signed and forwarded. In this case the lengthy and argumentative return was apparently completed and mailed to the judge without consulting him as to its contents, and without even returning the petition for consultation and comparison. When it was received, or what time and opportunity respondent had to revise it, is not shown, except as may be inferred from the following paragraph added by respondent, who signed and forwarded the saíne on the day prior to the return day set in the order to show cause herein:

“Respondent respectfully shows unto this court that the above return was prepared for' the respondent by John G. Hale, Esq., who resides in Chicago; that respondent, upon receiving the order to show cause herein, forwarded to the said John G. Hale, Esq., attorney for the defendant, the petition for an order to show cause, but recently received in return from the said John G. Hale, Esq., this return, but did not receive the petition. In consequence thereof respondent is unable to know whether he has answered every allegation of fact in said petition contained. Respondent respectfully shows unto the court that he believes all allegations of fact herein contained to be true, but that all conclusions based upon facts herein stated and anything in the way of arguments thereon are the conclusions and arguments of the said John G. Hale, Esq., attorney for the defendant in the case of John G. Burgess v. Pere Marquette Railroad Company.”

The lack of authority to extend time for settling a bill of exceptions for more than 80 days after judgment unless the party applying therefor has complied with the requirements of Circuit Court Rule-47 has been often declared by this court. Hill v. Hill, 114 Mich. 599 (72 N. W. 597) ; Lake Shore, etc., R. Co. v. Branch Circuit Judge, 116 Mich. 399 (74 N. W. 529); Roach v. Wayne Circuit Judge, 117 Mich. 242 (75 N. W. 465); Singer v. Livingston Circuit Judge, 117 Mich. 318 (75 N. W. 609); Hayes v. Ionia Circuit Judge, 125 Mich. 277 (84 N. W. 141); Kaiser v. Wayne Circuit Judge, 162 Mich. 247 (127 N. W. 336, 922); Pettinger v. Montmorency Circuit Judge, 164 Mich. 463 (129 N. W. 676).

That the notice and showing required by the rule may be waived is unquestionable, and it has been so held by this court. Wilkins v. Genesee Circuit Judge, 125 Mich. 628 (84 N. W. 1107); Culver v. Van Buren Circuit Judge, 141 Mich. 644 (105 N. W. 139). The circuit court is a court of record, and its actions must be based upon written pleading and proceedings duly filed, or on testimony, concessions, and stipulations publicly given or made before it, in open court, to be minuted and recorded. We think the requirements of Rule 47, in the particular mentioned, can only be waived in writing, duly filed and presented as a foundation for the action of the court, or by admission or stipulation in open court, in the presence and hearing of the court, which should be minuted and recited in the order as the court’s authority for granting the same.

A writ of mandamus will issue as prayed.

Moore, C. J., and MoAlvay, Brooke, Stone, Ostrander, and Bird, JJ., concurred. Blair, J., did not sit.


author: Brooke, J.

text:
    ZEMON v. WAYNE CIRCUIT JUDGE.
    Mandamus — Receivers — Appeal and Error — Final Order — Remedy by Appeal Adequate.
    A refusal to appoint a receiver in a judgment creditor’s suit is not reviewable on mandamus.
    Mandamus by David S. Zenlon and another against Henry A. Mandel, one of the circuit judges for the county of Wayne, to compeLrespóndent to appoint a receiver in a judgment creditor’s suit.
    Submitted June 11, 1912.
    (Calendar No. 25,208.)
    Writ denied July 22, 1912.

      Bernard B. Belling, for relators.

      Berry & McCredie, for respondent.
   Brooke, J.

Upon the application of relators, respondent refused to appoint a receiver as prayed in a judgment creditors’ bill. Relators thereupon applied to this court for an order against respondent to show cause why a writ of mandamus should not issue directing him to set aside his order refusing to appoint a receiver and further directing him to appoint a receiver. The order to show cause issued, and the return is now before us.

We are met at the outset by the claim on the part of the respondent that mandamus is not the proper remedy. We are of opinion that respondent is correct in this contention. If the order in question is to be regarded as a final order, an appeal will lie. If not, the case may proceed to final decree in the court below, which decree may be reviewed by appeal. The attitude of the court upon the question of reviewing interlocutory orders by mandamus where there is another adequate remedy has frequently been made known. See Mardian v. Wayne Circuit Judge, 118 Mich. 353 (76 N. W. 497), and cases cited; Tarsney v. Wayne Circuit Judge, 152 Mich. 641 (116 N. W. 465), and cases cited.

The writ is denied.

Moore, C. J.,- and Steere, McAlvay, Stone, Ostrander, and Bird, JJ., concurred. Blair, J., did not sit.


author: McAlvay, J.

text:
    OREN v. SECRETARY OF STATE.
    1. Prohibition — Mandamus—Secretary of State — Elections— Primary Nominations.
    Not prohibition but mandamus is the proper remedy to require the secretary of State to reject and refuse to file nominating petitions of candidates for office for which an election cannot legally be held.
    2. Elections — Primary Law — Nominations—Statutes.
    No special election need be called, and the general election law governing primaries is applicable to the office of circuit judge which has become vacant after the spring election and 30 days or more prior to the regular November election; the governor having appointed a judge to fill the vacancy until a new one should be regularly elected: the provisions of section 16, Act No. 281, Pub. Acts 1909, as amended by Act No. 279, Pub. Acts 1911 (1 How. Stat. [2d Ed.] §520 etseq,), governing special elections, apply only to such as are called to fill a vacancy, and primary petitions to nominate candidates for circuit judge are properly received and filed by the Secretary of State pursuant to the statute aforesaid.
    Prohibition by Horace M. Owen against Frederick O. Martindale, secretary of State, to prevent respondent from receiving and filing nominating petitions for the office of circuit judge of the eleventh judicial circuit.
    Submitted July 10, 1912.
    (Calendar No. 25,244.)
    Writ denied July 26, 1912.

      Warner & Sullivan, for petitioner.

      Franz O. Kuhn, Attorney General (Thomas A. Lawler, of counsel), for respondent.
   McAlvay, J.

An application was made to this court by petitioner against respondent for an order to show cause why a writ of prohibition should not issue against respondent, secretary of State, directing him to desist and refrain from receiving and filing any nomination petitions of candidates for the office of judge of the circuit court for the eleventh judicial circuit of the State of Michigan, to be voted for at the November, 1912, election. The order was granted, and the matter is before the court by return made thereto by respondent.

A vacancy having occurred in said judicial'circuit, it was filled by appointment of the petitioner by the governor. It is agreed that the term of the appointee expires with the November, 1912, election. Section 3604,1 Comp. Laws (1 How. Stat. [2d Ed.] § 201). It is also agreed that at such election a circuit judge for this circuit must be elected to fill the vacancy for the unexpired term which remains.

Petitioner contends that by the terms of the primary election law of this State, being Act No. 281 of the Public Acts of 1909, as amended by Act No. 279 of the Public Acts of 1911 (1 How. Stat. [2d Ed.] § 505 et seq.), no workable provision is made for 1¡he purpose of nominating candidates to fill the vacancy which will occur, and therefore such nominations must necessarily be made by delegates duly elected to conventions called by the respective political parties for that purpose; that he is a candidate for the Eepublican nomination as such circuit judge to succeed himself; and that there are other candidates for the same nomination. He alleges that there is a dispute among these candidates as to whether the nominations must he made under the provisions of the primary law, as amended, or by a delegate convention; and he alleges that the title to such judicial office will be questioned, contests will arise, and litigation result, unless the questions involved can be settled and determined prior to such election.

The writ of prohibition is not the proper remedy; but, on account of the importance of the question and the public interest involved, we will consider the application as for a writ of mandamus. Briefs are filed with the court by attorneys for both parties, and also by the attorney general. The necessity therefore arises for a prompt consideration and determination of the case by the court.

The primary election áct of 1909, as amended by the act of 1911, was the adoption and extension of the primary election idea to almost State-wide application. It does not include certain city offices. It includes circuit judges, as follows:

“ Candidates for circuit judge shall be selected in accordance with the provisions of this act.”

Section 16 of this law, as amended, provides for two general primary elections to be held in this State, as follows:

“A general primary election for all political parties shall be held in every election precinct in this State on the last Tuesday in August preceding every general November election. * * * A general primary election for all political parties shall also be held on the first Wednesday in March prior to the spring election, at which time the enrolled voters of each political party shall vote for candidates for county offices filled at the spring election; for candidates for circuit judge and for candidates for city offices, in cities in which the provisions of this act are applicable.”

Sections 16 and 17 of this law, as amended, also provide that: At the August primary nominations shall be made for governor, lieutenant governor and United States senator, * * * congressman, State senators, State representatives, county officers, and in certain cities city officers. Section 16 also provides a primary for special elections, as follows

“Whenever a special election shall be called to fill any vacancy in any office, the candidates for which are regularly nominated in accordance with the provisions of this act, a special primary election for all political parties shall be held in the city, county or district in which such vacancy occurs, on the tenth day prior to the date of such special election.”

By provision of the general law, the names of all candidates must be filed with the chairman of the board of election commissioners “twenty days-prior to the election.”

The point in issue is to harmonize the provisions relative to holding of the special primary election with the provision of the statute, above quoted, from the general law. This is based upon the theory that the election of a circuit judge in this instance is a special election, to be held under the primary election law, and which it would be impossible to reconcile with the provisions of the general law.

On the part of the petitioner, it is insisted that this nomination must be made under the convention system in this circuit, for the reason that this is a special election, and that no provision is made in the primary election law for the nomination of candidates for circuit judge where a vacancy occurs after the general April election. The other briefs in the case agree that this is a special election, but contend that the provisions relative to filing notices with the chairman of the board of election commissioners are directory and not mandatory, and that the provisions of the primary law can be complied with in all essentials. Neither party has overlooked the provisions of section 3604, 1 Comp. Laws (1 How. Stat. [2d Ed.] § 201), which provides:

“ When a vacancy shall occur in the office of judge of the Supreme Court, of judge of a circuit court, regent of the university, or member of the State board of education thirty days or more before a general election, the secretary of State shall, at least twenty days before such election, cause a written notice to be sent to the sheriff of each of the counties within the election district in which such vacancy may occur, which notice shall state in which office the vacancy occurred, and that such vacancy will be supplied-at the next general election.”

They have, however, by reason of the views above expressed, which they take of this election, considered that its provisions have no application. It is evident, from the excerpt from section 16, above quoted, that the legislature intended its terms to apply " whenever a special election is called to fill any vacancy.” Evidently, by the words selected in expressing their intent, the legislature confined the application of this portion of the section to special elections called to fill vacancies.

It is conceded in the instant case that a special election has not been called, and, in our opinion, no call for a special election was necessary to fill this vacancy. Section 3604, above quoted, provides for the only notice necessary to be given in cases of vacancies to be filled in the office of circuit judge. When such a vacancy occurs 30 days or more before a general election, no further provision is necessary, provided no special election to fill such vacancy has been called. See section 3596, 1 Comp. Laws (1 How. Stat. [2d Ed.] § 193), et seq. In case a special election to elect a circuit judge to fill a> vacancy was not called, no provision was required in the primary law on account of the provision of section 3604, supra; and the presumption is that the provisions of the primary, election law (section 16) were enacted with reference to the provisions of section 3604, supra. Our determination is that the provisions of said section 16, relative to special elections, applied only to special elections which were called to fill any vacancy in any office, the candidates for which are regularly nominated in accordance with the provisions of the general primary law. This construction avoids any ambiguity in the provisions of the primary law and gives force and effect to the clear legislative intent, expressed in the entire statute, and provides direct primary elections for the nomination of all officers included within its terms. Our conclusion is that this nomination is required by law to be made at the coming August, 1912, primary election, subject to the provisions and requirements of the law as to filing nomination petitions and all other details.

The petition is denied, without costs.

, Moore, C. J., and Steere, Brooke, Stone, Ostrander, and Bird, JJ., concurred. Blair, J., did not sit.


author: Bird, J.

text:
    VOS v. CHILD, HULSWIT & CO.
    1-. Damages — Stock and Stockholders — Sales.
    For breach of a contract of salé of corporate stock which advanced in price aftér refusal to deliver, plaintiff is entitled to recover his loss upon the basis of the highest market price reached by the stock after the time for delivery during the period which he might reasonably require to purchase other shares on the market.
    2. Same.
    The question what was a reasonable time is for the jury if the facts are in dispute or different inferences may reasonably be drawn from the proofs.
    Error to Kent; Perkins, J.
    Submitted February 8, 1911.
    (Docket No. 138.)
    Decided July 26, 1912.
    Assumpsit by Richard Q. Vos against Child, Hulswit & Company vfor breach of a contract of sale of corp.orate stock. A judgment for plaintiff upon a verdict directed by the court for less than the amount claimed is reviewed by plaintiff on writ of error.
    Reversed.

      Smedley, Hall & Gillard, for appellant.

      Hyde, Earle & Thornton, for appellee.
   Bird, J.

This is an action in assumpsit in which plaintiff seeks to recover damages for defendant’s failure to deliver to him 20 shares of American Light & Traction stock, which he claims to have purchased of it and paid for on the 12th day of March, 1909. The stock advanced in price the nest day, and defendant refused to deliver it to the plaintiff until he paid the advanced price. Plaintiff refused to do this, claiming that he had purchased it at $1.44 or $2,880. After several unpleasant interviews over the transaction, plaintiff demanded his stock or his money, and the money was returned to him on March 31, 1909. On this date the stock was very much higher than it was on March 12th. Plaintiff at once commenced this action to recover for lost profits. When the case was ready for trial, counsel for the respective parties made opening statements to the jury. Upon these statements the trial court directed a verdict for the plaintiff for $20. It was assumed by the court that the contract was a valid one, as claimed by the plaintiff, and his reason for assessing the damages at $20 was because the stock could have been purchased the following day at $1.45 or at an advance of $20. It was the view of the court that plaintiff should have accepted the offer made to him on the following day and purchased the stock at $1.45, and then sued to recover the difference between that sum and the contract price in order to satisfy the rule that, where one suffers from a breach of a contract, he must so act as to make his damages as small as he reasonably can. Defendant has not appealed, and finds no fault with the judgment.

The only error plaintiff assigns is upon the rule of damages laid down by the trial court. This is the one question that is raised for the consideration of this court. Plaintiff concedes that the court gave the true rule of damages for a failure to deliver personal property, but he insists that that rule is not the proper one to apply where the breach counted upon is a failure to deliver stock; but in such case the plaintiff is entitled to a reasonable time after the breach to purchase the stock himself, and that he is entitled as damages to the difference between the contract price and the highest value of the stock during such reasonable time. There is much support in favor of this contention. In several of the States the ordinary rule of damages for a failure to deliver personal property seems to have been enlarged in' the case of a failure to deliver stocks in accordance with the contract. This exception to the general rule and the reasons which gave rise to it are well stated by Mr. Justice Sanborn in McKinley v. Williams, 74 Fed. 94, 20 C. C. A, 312:

“ Compensation is the general standard for the measure of damages. It is the actual, and proximate loss caused by the wrong for which the plaintiff is entitled to indemnity. Hence the general rule is that the measure of damages for the failure to deliver property according to the contract, or for its conversion, is the value of the property at the time it was to be delivered, or at the time it was converted. This general rule, however, has been found inadequate to furnish just indemnity for the losses occasioned by the conversion of, or the wrongful failure to deliver, stocks and other properties of like character, the values of which are subject to frequent and wide fluctuations. The general rule gives to the agent, broker, or person in possession of such property that is really valuable, frequent opportunity to convert it to his own use, at a time when its market price is far, below its actual value, and thus offers a prize for the breach of duty, while it often leaves the injured party remediless. To prevent this injustice, and to throw the chance of this loss upon him who inflicts, rather than upon him who suffers, the wrong, an exception has been ingrafted upon this general rule. It is founded upon the proposition that he who deprives another of the possession and control of such property ought to assume the risk of the fluctuations in its market value, until its owner, by purchase or sale, can restore himself to the condition in which he would have been if his property had not been wrongfully taken. It rests upon the proposition that the risk of the market during this time should be assumed by the perpetrator, not by the victim, of the wrong. The exception is that the measure of damages for the failure to sell or to deliver stocks and like speculative property, or for the conversion thereof, is the highest market value which the property attains between the time when the contract required its sale or delivery, or the time of its conversion, and ,the expiration of a reasonable time, to enable the owner to put himself in statu.quo, after notice to him of the failure to comply with the contract or of the conversion. * * * Counsel for the appellant argues that this rule should not be applied to this case, because the stock which the appellant obtained never became the property of the appellee, and hence could not have been converted. The answer is that this measure of damages is as applicable to actions upon contracts as to those upon torts. Barnes v. Brown, 180 N. Y. 372, 382 (29 N. E. 760); Maynard v. Pease, 99 Mass. 555.”

The rule has been much discussed in New York, and has been applied in many cases arising in that jurisdiction. Baker v. Drake, 53 N. Y. 211 (13 Am. Rep. 507); Colt v. Owens, 90 N. Y. 368; Wright v. Bank of the Metropolis, 110 N. Y. 237 (18 N. E. 79, 1 L. R. A. 289, 6 Am. St. Rep. 356). It has also been adopted by the Federal court. Galigher v. Jones, 129 U. S. 193 (9 Sup. Ct. 335); Hoyt v. Fuller, 104 Fed. 192, 43 C. C. A. 466; 13 Cyc. p. 172, and cases there cited. In fact, there has been little opposition to the rule in the State courts, except where an attempt has been made to apply it to other personal property which had a fluctuating value.

We are of the opinion that compensation will be more nearly attained by applying the exception to the rule, where damages are sought, as in this case, for a failure to deliver stock. It is quite obvious that the trial court applied the rule of damages usually applied for a failure to deliver personal property, or else he would not have fixed one day as a reasonable time in which plaintiff himself should have purchased the stock.

If the facts surrounding the transaction were in dispute, or if different inferences could have been reasonably drawn from the agreed facts, the question of what was a reasonable time was one for the jury, otherwise it was a question for the court. Wright v. Bank of the Metropolis, supra.

The judgment of the trial court is reversed, and a new trial ordered.

Brooke, Blair, Stone, and Ostrander, JJ., concurred.