author: Grant, J.

text:
    WIGHTMAN v. VILLAGE OF TECUMSEH.
    1. Elections — Public Improvements — Municipal Corporations.
    In a special election for the purpose of authorizing a bond issue to construct a sewer system, the ballot omitted to state the purpose of the vote as prescribed by the common council, although a notice of the purpose, time, and place of the election was published as -required, and the resolution adopted fully complied with the law; it was held that the voters were not misled and the election was valid.
    2. Same — Void Ballots.
    Votes at a special election to authorize a bond issue, which bear distinguishing marks, are invalid for any purpose and should not be counted in determining the two-thirds majority.
    3. Municipal Corporations — Statutes—Bonds—Taxation.
    Section 2873, 1 Comp. Laws, prescribing a limit of two per cent, of the assessed valuation for the amount to be raised in any one year for corporate purposes of villages, in excess of the amount otherwise authorized, applies only to the purposes expressed in such section and not to all taxes or loans mentioned in the statute.
    Case made from Lenawee; Lockwood, J.
    Submitted February 24, 1909.
    ( Docket No. 126.)
    Decided July 6, 1909.
    Bill by James W. Wightman against the. village of Tecumseh and others to enjoin the issuance of certain bonds and the construction of a sewer. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      James W. Wightman (Westerman & Westerman, of counsel), in pro. per.

      Fred B. Wood and Bird & Sampson, for defendants.
    Complainant, a taxpayer and owner of real estate in the defendant village, filed the bill of complaint in this case to enjoin the village and the other defendants, its trustees, from constructing certain sewers, from issuing bonds for that purpose, and from entering into a contract for their construction. The case was heard upon pleadings and proofs taken in open court, and decree entered dismissing the bill. The proposition to raise #29,000 by the issue of bonds for the construction of the sewers was submitted to the vote of the electors of the village. All the proceedings until the day of election were regular and in accordance with the statute. The following form of the ballot was prescribed by the council:
    “Shall a village loan of twenty-nine thousand dollars for sewer purposes be authorized ? ”
    By the mistake either of the clerk in copying the form of the ballots, or of the printer in printing them, the words “for sewer purposes ” were omitted from the ballots, so that they read, “ Shall a village loan of twenty-nine thousand dollars be authorized ? ” The total number of legal votes cast was 506. Of these, 364 were for the loan and 142 against it. Fifty-five votes were rejected as illegal because of distinguishing marks. Of these, 32 were for the loan, and 23 against it. Upon receiving the return of the election, the council determined that the proposition was carried by the requisite two-thirds vote, and were making preparations to issue the bonds and make a contract when this bill was filed. It is conceded that the following notice was published for two weeks preceding the election in the two village newspapers, and posted in six of the most public places in the village:
    “ Notice is hereby given that a special village election will be held at the council building in the village of Tecumseh on the 23d day of September, A. D. 1907, the polls being open at 7 o’clock in the morning of that day, or as soon thereafter as may be, and kept open until 5 o’clock in the afternoon, for the purpose of determining whether a loan of twenty-nine thousand dollars on the faith and credit of said village for the purpose of constructing a sanitary sewer system therein, shall be authorized, in accordance with the resolution adopted by the village council of said village at an adjourned meeting, held on the 4th day of September, A. D. 1907, of which the following is a true copy:
    “‘Resolved, That the proposition to raise the sum of twenty-nine thousand dollars, by loan on the faith and credit of this village, for the purpose of constructing a sanitary sewer system in said village, according to the plans and specifications prepared by Riggs & Sherman, and now on file in the office of the clerk of this village, be and the same hereby is submitted to the vote of the electors of this village at a special village election now and hereby called for that purpose, to be held at the council building in said village on the 23d day of September, A. D. 1907, at which election the vote shall be by ballot, the contents of which shall be as follows, viz.:
    “‘The ballot for those voting to authorize said loan to read as follows:
    [~~1 Shall a village loan of twenty-nine thousand dollars for sewer purposes be authorized: Yes.
    “ ‘The ballot for those voting not to authorize said loan to read as follows:
    I I Shall a village loan of twenty-nine thousand dollars for sewer purposes be authorized: No.
    “ ‘That said village election be conducted in every respect in the manner provided by law for special elections, and that the village clerk is hereby directed to give notice of said election by having a copy of this resolution published in each the Tecumseh Herald and the Tecumseh News at least twice before said election, and by posting notices of said election, containing copies of this resolution, in six of the most public places in this village at least two weeks before the date of said election.’ ”
    The election was a special one, and no other question was before the electors. Tecumseh is a village of about 2,500 inhabitants. The election was once postponed by the council at the verbal request of some of the electors, in order to give the electors further time for discussion and consideration. It was also shown that there was a very full discussion of the proposed loan preceding the election.
    Three questions are presented:
    (1) Is the election void because the ballots did not state the purpose for which the indebtedness was to be incurred ?

      (2) Did the proposition receive the necessary two-thirds vote of all the electors voting at said election ?
    (3) Did the amount proposed to be raised exceed the amount authorized by the statute to be raised upon the assessed valuation of the village exclusive of the taxes of the same year ?
   Grant, J.

(after stating the facts). The proceedings of the. council were regular. The resolution published distinctly stated the proposition upon which the voters were to cast their ballots. It was a special election. No other proposition was before the voters. It had been fully discussed in newspapers and by citizens. Every voter who went to the polls must have known that the sole proposition for him to vote upon was the authorization of a loan of $29,000 for sewer purposes. The voters did not see the ballots until election day and probably at the polling places when they went to vote. The ballot- then placed in their hands informed them that in accordance with the resolution of the common council they were to vote for a loan of $29,000. The purpose for which that loan was to be made did not appear upon the ballots. It cannot be conceived that the words “for sewer purposes ” would have given the voters any information other than that already possessed by them before going to the polls. That provision of the charter above quoted, requiring the ordinance or resolution of the council to distinctly state the purpose of the expenditure, was fully complied with. By mistake of someone the exact form of the ballot was not followed. There is no possibility or claim that any voter was misled or prejudiced by the mistake. The object of the above provision of the statute is to notify the voters of the proposition to be voted upon at the future specified time so that they may have ample time for consideration and discussion. The money to be received from the loan was for one purpose only, and could not be diverted to any other purpose. The omission of the words “for sewer purposes,” from the ballot must, under the circumstances, be held not to have vitiated the election.

People v. Township Board of Woodhull, 14 Mich. 28, is not in point here. The circumstances in that case are entirely different. The petition was held to be too general. It did'not enable the court, by a statement of the specified purpose for which the advances were made, to judge whether they came within the provisions of the act. This disposed of the case. The court used the following language:

‘c The question voted upon goes back over the whole ' time from the beginning of the war, without any of the restrictions or limitations provided in the act, and would apply as well to moneys advanced for bounties to drafted men, and to the cases prohibited by the proviso, as to any others. It would cover any incidental expenses in going to the provost marshal’s office and returning, and the time spent there in getting the rolls corrected, or any other incidental expenses as to bounties or advances for bounties. This vote affords, therefore, no evidence what the vote of the electors would have been upon the question really authorized to be submitted.”

In the present case the statute of the State has been fully complied with by the common council, and there is no room for any uncertainty from the defect in the ballot. See, also, Thomas v. Kent Circuit Judge, 116 Mich. 106 (74 N. W. 381), and authorities cited in Bauer v. Township Board of Denmark, post, 395 (122 N. W. 121).

It would be unnecessary in this case to decide the other two questions, but as they may again arise, and are fully discussed, we will determine them. The proposition was carried by the required two-thirds vote of the legal votes east. Complainant does not contend that the 55 votes were improperly rejected, but insists that the legal electors voted these ballots, and therefore they should be counted in estimating the two-thirds vote. In other words, he insists that these votes were valid for one purpose, but void for all others. The position is untenable. The statute makes all such votes void. A void vote is of no more effect than no vote. The case is the same as it would be if only 506 electors had voted.

The statute contains six sections providing taxes for different purposes, and prescribing a limit of taxation in each case. 1 Comp. Laws, §§ 2852-2857, inclusive. Section 2873 reads as follows:

“Should any greater amount be required in any year for the purchase of grounds for erecting public buildings or for other necessary corporate purposes than can be raised by the council under the foregoing provisions of this chapter, such amount may be raised by tax or loan, or partly by tax and partly by loan, if authorized by a two-thirds vote of the electors voting upon the question at any annual or special village election. The amount that may be voted or raised in any year, under the provisions of this section, shall not exceed two per cent, of the assessed valuation of the property in the village as shown by the last preceding tax roll made therein.”

The 2 per cent, limit in this section applies to the purpose provided in that section. That limit had not been reached. The 2 per cent, does not include all the taxes mentioned in the other sections.

The decree is affirmed.

Blair, C. J., Montgomery, Ostrander, and Hooker, JJ., concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    REIMINK v. STRABBING.
    1. Statutes — Repeal.
    The repeal of a statute by implication is not favored.
    2. Same — Highways and Bridges — Public Officers.
    Section 3 of Act No. 37, Pub. Acts 1907, providing that the highway commissioner of a township shall be authorized to buy necessary material for purposes approved by the township board, in amounts under five hundred dollars, is repealed by Act No. 108, Pub. Acts 1907, which is inconsistent with the prior act in dividing the funds obtained into a road repair tax and highway improvement fund, and in determining the method of expenditure and amount to be used under the supervision of the township board.
    3. Costs — Mandamus and Certiorari.
    On the review by certiorari of an order issuing a writ of mandamus, costs were awarded to neither party on the ground that a matter of public interest was involved.
    Certiorari to Allegan; Padgham, J.
    Submitted March 2, 1909.
    (Calendar No. 23,254.)
    Decided July 6, 1909.
    Mandamus by Ed. Reimink to compel Henry Scabbing, township clerk, to countersign an order for the payment of steel ordered by the highway commissioner. An order granting the writ is reviewed by respondent on writ of certiorari.
    Reversed.

      Wilkes & Stone, for relator.

      Smedley & Corwin and Diekema & Kollen, for respondent.
   Moore, J.

The relator, upon the order of the highway commissioner, furnished material for bridge purposes to the amount of more than $300. The township board and the voters of the township authorized the expenditure for bridge purposes of-more than the sum in question. A dispute has arisen as to whether the expenditure when authorized may be made by the highway commissioner, or whether it must be made by the township board.

Counsel are agreed that the only question before this court is whether section 4169, 2 Comp. Laws, as amended by Act No. 37 of the Public Acts of 1907, has been repealed by Act No. 108 of the same session. That part of Act No. 37, supra, which is material here, reads as follows:

“Sec. 3. In all cases involving an expenditure of an amount over fifty dollars and not exceeding five hundred dollars, in the repairing or construction of roads or bridges, in any township of this State, the commissioner shall submit the proposed expenditure to the township board, and upon the approval of the said board, the commissioner may make such repairs or cause them to be made; may do the construction work or cause it to be done; may buy the necessary materials and hire the necessary help, but if the proposed expenditure is of an amount greater than five' hundred dollars, the commissioner shall first submit the same to the township board, and upon approval of the said board the commissioner shall advertise for sealed proposals for the doing of such work and the making of such repairs, and together with the township clerk, subject to approval of the township board, shall contract with the lowest bidder giving good and sufficient security for the performance of the work,” etc.

This act was approved April 3, 1907.

Section 1 of Act No. 108, supra, provides that the highways in every organized township shall be laid out, improved, and maintained by two money taxes; one tax shall be known as the “ road repair tax,” and the other tax shall be known as the “highway improvement tax.”

Section 9 reads in part as follows:

‘ ‘ The road repair tax shall be expended for labor, material and other necessary expenses, under the supervision and by the direction of the township highway commissioner, on the highways and bridges which will directly benefit the property taxed, not exceeding one hundred dollars on any one mile of highway, unless otherwise directed by the township board.”

Section 10 reads as follows:

“The highway improvement fund shall be expended by the township highway commissioner under the direction of the township board in laying out, building and permanently improving or repairing highways and bridges and in the employment of labor, purchasing of material, tools or machinery to be used therefor. ”

The final section of the act repealed sections 4072-4103, inclusive, 2 Comp. Laws, and all acts and parts of acts contravening the provisions of this act.

Act No. 108 was approved May 22, 1907.

It is the contention of the relator that as section 3 of Act No. 37 was not repealed in express terms, and is not inconsistent with the provisions of Act No. 108, the provisions of Act No. 37 still stand.

Repeals by implication are not favored. See Hoffman v. Lumber Co., 138 Mich. 5 (100 N. W. 1010, 104 N. W. 424), and cases cited.

Are the provisions of the two acts inconsistent with each other so that the later act repeals the former one ? It is apparent from the provisions already quoted from the later act that, after it became the law, all taxes for highway purposes came under one of two heads, i. e., one tax, known as the “road repair tax,” and the other tax, known as the “ highway improvement tax.” Explicit provisions are made as to how each of these funds may be expended. These provisions are different from what they were before the enactment of the later statute, and are inconsistent therewith. See Wright v. Board of Com’rs of Tipton Co., 82 Ind. 337; Shannon v. People, 5 Mich. 71; Feige v. Railroad Co., 62 Mich. 1 (28 N. W. 685); Graham v. Muskegon County Clerk, 116 Mich. 571 (74 N. W. 729); Attorney General v. Commissioner of Railroads, 117 Mich. 477 (76 N. W. 69). See, also, Mackey v. Township of Columbus, 71 Mich. 227 (38 N. W. 899); Rens v. City of Grand Rapids, 73 Mich. 237 (41 N. W. 263).

It follows that the order of the circuit judge compelling the issuing of the order should be vacated and relator’s petition dismissed. As the question is one of public interest, no costs will be allowed to either party.

Blair, C. J., and Grant, Montgomery, and McAl-VAY, JJ., concurred.


author: McAlvay, J.

text:
    STROHSCHEIN v. KRANICH.
    1. Appeal and Error — Joint Liability.
    In an action of assumpsit against joint defendants, the appeal of one from justice’s court to the circuit court brings the entire case to the circuit court, and not merely the liability of the appellant.
    2. Partnership — Joint Interests — Profit Sharing.
    Where the evidence tended to show that defendants owned a joint interest in the business, but no testimony was offered tending to show an agreement to share profits or pay debts, the court should have directed a verdict in favor of the appellant on the ground that no joint liability was shown.
    Error to Wayne; Murphy, J.
    Submitted April 13, 1909.
    (Docket No. 43.)
    Decided July 6, 1909.
    Assumpsit by William E. Strohschein against Edward R. Kranich and others for work and labor. A judgment for plaintiff is reviewed by defendant Kranich on writ of error.
    Reversed.

      James Swan, for appellant.

      Harry H. Wait, for appellee.
   McAlvay, J.

Plaintiff brought suit in justice’s court against four defendants, copartners, doing business under the name of Cement Era Publishing Company. The action was in assumpsit for goods sold and delivered. Plaintiff recovered a judgment for $200.25, damages and costs of suit. Defendant Kranich appealed to the circuit court. Before stating the result of the trial in that court, it will be helpful to the understanding of the controversy to give certain material facts. D. Z. Curtiss, on May 12, 1906, and for some time previous, was the owner and publisher of a certain publication in Detroit, called the “Cement Era.” On that date, fora cash consideration of $1,000, he sold to defendant Kranich an undivided one-third interest in said publication, together with good will, accounts, and property belonging thereto, by a written bill of sale warranting title free from all liens, and agreeing to pay all claims, if any, of prior date. Afterwards, on the, same or the following day, he entered into a written contract with the defendants Schmidt, Wolfrom & Sovereign, who were a copartnership, to sell them an undivided two-thirds interest in said “ Cement Era,” and all the property, etc., belonging thereto, for the sum of $1,000 to be paid in monthly installments of $50 each, according to 20 promissory notes executed by them; title being reserved in Curtiss until paid, and said parties to have possession and use of the property in the ordinary course of business so long as not in default.

The firm of Schmidt, Wolfrom & Sovereign chose Wolfrom to manage this business, which duties he at once assumed and continued as long as they were interested in the property. The record shows that Kranich made this purchase as an investment, and that he was never actively engaged in the conduct of this publication, and there is ho evidence in the case tending to show co-partnership relations between Kranich and the other defendants. Plaintiff is proprietor and manager of a printing business in Detroit, and his claim against defendants is for paper, wrappers, cuts, etc., furnished in printing and mailing the Cement Era for the months of May and June, 1906, amounting to #430.25, upon which Wolfrom and Baumgartner, the party who purchased the entire property, June 30, 1906, made payments amounting to , #230. Defendant Kranich was seriously sick at the time of the trial, and not able to attend and testify. Upon the trial of the case the court instructed the jury that no co-partnership relations between Kranich and the three other defendants had been shown; nevertheless the four were joint owners of the property, that it appeared that they intrusted active management of the property to Mr. Wolfrom, and that there was an agreement between the four joint owners that they were to share in the profits, if any, according to their interests, and such agreements made them, as joint owners, liable for any goods furnished and used in the publication of their paper. He further charged the jury that Kranich was the only defendant in the case, and, though the only defendant, he would be liable for the amount and value of the items of plaintiff’s claim which were proved in the case as actually delivered and used in the publication of the paper. From a judgment against him alone, entered upon a verdict for the amount claimed by plaintiff, defendant Kranich brings the case to this court by writ of error.

The errors assigned which will be necessary to consider relate to the holdings and charges of the court above outlined. These defendants were proceeded against jointly, upon a joint agreement declared upon, and a judgment was entered in justice’s court against them founded upon such agreement. The general appeal of defendant Kranich was authorized by the statute, and brought the whole case to the circuit court upon the issue made and tried in justice’s court. The instruction of the court in this case seems to have gone upon the theory that, because but one defendant had appealed, the joint obligation upon which a recovery was had, and which was asserted in the court of original jurisdiction, was changed into an individual liability in the circuit court. Plaintiff could not in this case have discontinued against the other defendants and recovered against Kranich alone. The only theory of plaintiff’s case was that 'of joint liability. Anderson v. Robinson, 38 Mich. 409; Fay v. Jenks, 78 Mich. 312 (44 N. W. 380), and cases cited. There are some exceptions to this rule, where disability of infancy or bankruptcy, etc., may exist. The action of the court was, in effect, doing what the parties could not do. Wright v. Reinelt, 118 Mich. 638 (77 N. W. 246). The instruction complained of was erroneous.

The court found that this was not a copartnership, and the record sustains such finding. It also found and instructed the jury “that defendant Kranich owned an undivided one-third interest, and the other three jointly owned an undivided two-thirds in this property, and that the four joint owners intrusted the management of the paper to Wolf rom, and that there was an agreement between the four that they were to share in any profits,” etc. The record shows that these parties did own the interests as designated, but it does not show that there was any agreement relative to sharing profits. It appears that Kranich never knew anything about this account, or was consulted about it or any other accounts. There is no agreement, express or implied, that defendant Kranich ever agreed with the others to pay any accounts. Kranich was not known to plaintiff. The court charged that these agreements made them liable as joint owners for any goods furnished by plaintiff. It already appears that the record does not show the agreements the court relied on, and the mere fact that defendant Kranich owned an interest in this property, which, as far as this plaintiff was concerned, was his only relation to it and to this transaction, would not make him liable upon contracts made by the other owners, in which he took no part, and with which he was not connected. The court was in error in so holding and charging the jury, and under the evidence should have instructed a verdict for defendant, as requested, on the ground that no joint liability had been shown.

For the errors pointed out, the judgment is reversed, and a new trial ordered.

Blair, C. J., and Grant, Montgomery, and Brooke, JJ., concurred.


author: Brooke, J. Ostrander, J.

text:
    DUNKLEY v. CITY OF MARQUETTE.
    1. Appeal and Error — Special Appeal from Justice’s Court —Record in Supreme Court.
    Where the record of appellant fails to show the basis of a special appeal from justice’s to circuit court, the proceedings, appearing to be in due form, will be held to be regular.
    2. Contracts — Assignments oe Salary oe Public Oeeioers — Public Policy.
    An assignment by a city comptroller of salary due and to become due him is void as against public policy.
      Granger v. French, 152 Mich. 356, followed and approved.
    3. Garnishment — Public Oeeioers — Salary.
    By an equally divided court, the decision of the circuit court that Act No. 257, Pub. Acts 1899, authorized the garnishment of salary due to municipal officers, is sustained. Blair, O. J., and Montgomery, McAlvay, and Ostrander, JJ., dissenting.

      Error to Marquette; Stone, J.
    Submitted April 8, 1909.
    (Docket No. 10.)
    Decided July 6, 1909.
    Garnishment proceedings by Joseph Dunkley against the city of Marquette, garnishee defendant of Shields McCarthy, and Elizabeth Kitts, claimant. A judgment for plaintiff is reviewed by claimant on writ of error.
    Affirmed by an equally divide'd court.

      J. L. Hefferncm, for appellant.

      W. S. Hill, for appellee.

      As to validity of assignment of future wages or salary, see note to Rodijkeit v. Andrews (Ohio), 5 L. R. A. (N. S.) 564.

   Brooke, J.

This is an action of assumpsit brought by the plaintiff against the defendant McCarthy before a justice of the peace of Marquette county. The declaration was on the common counts, and judgment was rendered by said justice in favor of said plaintiff and against said defendant, Shields McCarthy, for the sum of $89.85 damages and $3 costs, on February 26, 1908. On the 29th of February a summons in garnishment was issued to the city of Marquette, and duly served. On the 4th of March, 1908, the said garnishee defendant filed with said justice its written disclosure setting forth that it was indebted to said Shields McCarthy, principal defendant, for services as city comptroller in the sum of $125 over and above all legal set-offs, and that said indebtedness was for the salary of said comptroller of said city for the month of February. The disclosure also made note of the claim of Elizabeth Kitts as assignee under a written assignment, and the sum of $125 was paid into the hands of the justice. Thereupon the said Elizabeth Kitts was served with notice and with a copy of the disclosure, citing said claimant to appear before said justice at his office in the city of Marquette on the 25th of March, 1908. On March 27, 1908, the parties appeared before said justice. Plaintiff declared on the common counts in assumpsit, and specially on the judgment hereinbefore mentioned, claiming damages $300, etc. Defendant pleaded the general issue. Plaintiff introduced in evidence the original judgment in the principal cause and the disclosure of the garnishee defendant, and all documents pertaining to the garnishee proceedings, and it was conceded by claimant that the fund in court was for salary earned by the principal defendant as a public officer after the execution of the assignment to the claimant. The defendant offered no testimony. The trial of the issues was had by a jury, which rendered a verdict in favor of plaintiff and against claimant Kitts for $89.85 damages and $13 costs. Claimant thereupon appealed to the circuit court for the county of Marquette by general and special appeal. The circuit court affirmed the judgment of the justice’s court, finding that said claimant is not entitled to said fund or any part thereof, and that the same belongs to the said plaintiff in said garnishee proceedings to the sum of $94.15, allowing costs against said claimant and her surety, John R. Gordon, to be taxed, including an attorney fee of $12.50. Thereupon the case was brought to this court for review. Five assignments of error are urged on behalf of claimant.

The court erred in finding that the validity of the judgment in justice’s court against the claimant cannot be raised on special appeal, but should have been raised by certiorari. So far as the record discloses, the proceedings in the justice’s court appear to have been regular, and in accordance with section 1017, 1 Comp. Laws. The affidavit of the claimant upon which she based her special appeal is not included in the record, and the court is therefore unable to determine whether or not this assignment is well grounded.

The second assignment of error is that the court erred in holding that the assignment of the said Shields McCarthy to said claimant was void as against public policy upon the authority of Granger v. French, 152 Mich. 356 (116 N. W. 181). We think the learned circuit judge was justified in his ruling as to the assignment. The case of Granger v. French, supra, received careful attention by this court, and may be deemed to express the settled policy of the law touching the subject-matter there under consideration.

The third assignment of error is that the court erred in holding that the claimant is not entitled to said fund, or any part thereof, and that the same belongs to said plaintiff under said garnishee proceedings to the amount of $94.15, being the amount of said damages, costs, and interest. This assignment of error demands a consideration of Act No. 257, Pub. Acts 1899, which is an act to amend section 25, Act No. 137, Laws 1849, as amended, relative to authorizing proceedings against garnishees, etc. Section 25, as amended, reads in part as follows :

“All corporations of whatsoever nature, whether foreign, domestic, municipal or otherwise, except counties, may be proceeded against as garnishees in the same manner and with like effect as individuals under the provisions of this act, and the rules of law regulating proceedings against corporations and the summons against the garnishees in such case may be served on the president, cashier, secretary, treasurer, comptroller or other principal officer of such corporation,” etc.

The question is whether it was the legislative intent to authorize garnishee proceedings against municipal corporations where the principal defendant was an officer or employé of such municipality. It is true that the statute does not by name make the officers and employes of municipal corporations subject to the operation of garnishment proceedings against the municipality, but it is likewise true that they are not excepted by the terms of the act. We are of opinion, after careful consideration, that it was the legislative intent to provide for garnishment proceedings against municipal corporations by this legislation, not alone where the principal defendant was one sustaining simply a commercial or contractual relation with the municipality, but likewise to its officers and employés as such. As determined in the case of Granger v. French, supra, an officer or employe of a municipal corporation may not assign by anticipation the salary and fees paid to him for the purpose of maintaining the dignity of his office and securing the due discharge of his duties. We think, however, that the voluntary act of such officer or employe in so depriving himself in advance of the emoluments of his office stands upon an entirely different footing from the taking of such emoluments after they have accrued by garnishment proceedings under the legislation above noticed. But we are not concerned with the wisdom of the legislation. The act under consideration was clearly within the legislative power, and we think its intent is clear.

The other assignments need not be discussed.

Judgment is affirmed.

Grant, Hooker, and Moore, JJ., concurred with Brooke, J.

Ostrander, J.

Section 1014, 1 Comp. Laws, was amended by Act No. 257, Pub. Acts 1899, and again amended by Act No. 73, Pub. Acts 1903. It provides that:

“All corporations of whatsoever nature, whether foreign, domestic, municipal or otherwise, except counties, may be proceeded against as garnishees in the same manner and with like effect as individuals under the provisions of this act, and the rules of law regulating proceedings against corporations,” etc.

In view of the settled and general rule of public policy applied by this court in Granger v. French, 152 Mich. 356 (116 N. W. 181), and in view, also, of the language of the statute in which all corporations, domestic as well as municipal, except counties, are placed upon the same footing with respect to their liability as garnishee defendants, I think the statute should be construed as making municipal corporations liable as garnishee defendants in those cases only where the principal debtor is an employe of the municipality, or is one to whom the municipality is indebted otherwise than for an official salary.

The judgment should be reversed, and no new trial granted.

Blair, C. J., and Montgomery and McAlvay, JJ., concurred with Ostrander, J.


author: Montgomery, J.

text:
    STEELE v. CULVER.
    1. Pleading — Demurrer—Efeectj
    Pacts not stated in a bill of complaint cannot be put in issue or considered by the court on a demurrer.
    2. Judgments — Res Adjudioata — Collateral Attack.
    Enforcement of a judgment in an action at law will not be enjoined on a bill in equity showing that the judgment in the action at law was obtained by perjury; such defense haying been foreclosed by the trial on the merits.
    Appeal from Van Burén; Des Voignes, J.
    Submitted April 26, 1909.
    (Docket No. 98.)
    Decided July 6, 1909.
    Bill by Frederick M. Steele and others against William Culver and others to set aside and restrain the collection of a judgment. From an order sustaining a demurrer to the bill, complainants appeal.
    Affirmed.

      Ernest Dale Owen (Alexis O. Angelí, of counsel), for complainants.

      T. J. Cavanaugh and L. A. Tabor, for defendants.
   Montgomery, J.

This is a bill filed on the equity side of the court to set aside and restrain the collection of a judgment obtained by the defendant William Culver against the complainant railroad company for personal injuries amounting to the sum of $19,200. The bill alleges that such judgment was obtained in the circuit court for the county of Van Burén; that an appeal was taken to this court from such judgment, where the same was affirmed; that the complainant the Fidelity & Deposit Company of Maryland became surety on the bonds given on such appeal; that subsequently, upon a sale of the complainant railroad company to another railroad system, the complainant Steele entered into an obligation to pay whatever sum might eventually be recovered against the company in said action by said Culver. The bill further alleges certain proceedings taken in the Federal court to restrain the collection of this judgment, which, however, resulted in a dismissal of the case on the ground of want of jurisdiction in the Federal court. The bill alleges that, on the trial of the case of Culver against the railroad company, said Culver and some of his witnesses knowingly and wilfully testified falsely upon the material and determining question in the case, and that he and his attorney, Tabor, suborned said witnesses to swear falsely; that the officers of the railroad company and those in charge of such litigation knew in practical effect that such testimony was false, but that with all due diligence they were unable to make proof of such fact, as the same was kept secret and was clandestinely done; that after the rendition of said judgment and after the appeal thereof, and preceding the determination of such appeal, in an effort to make a settlement of the case without the intervention of his lawyers, the said Culver made a full and complete statement and confession to the complainant Steele that he, the said Culver, had testified falsely in such cause on a material and controlling point therein, and that he and his attorney, Tabor, had suborned witnesses to swear falsely in corroboration of his testimony. The prayer of the bill is that the collection of the judgment be forever restrained and enjoined, and for such further relief as equity may require. To this bill of complaint a demurrer was filed, and, upon hearing by the court, was duly sustained. The complainant appeals the case here.

Attention is called in the brief of defendants’ counsel to proceedings had upon motions for new trial and to proceedings in this court, which would have an important bearing upon the merits of the case if properly within the issue. But, in so far as the demurrer attempts to raise these collateral questions of fact, we think it is not good pleading. Both counsel, however, seem to be agreed that the question presented is whether the bill makes a case for equitable relief, and that question we proceed to consider.

It is contended by complainant’s counsel that the question in the precise form here presented has never been determined by this court. It is true that no case presenting precisely the facts averred in this bill has been called to our attention, but we think that in principle the question is stare decisis. The question arose in Gray v. Barton, 62 Mich. 186 (28 N. W. 813), whether, after a judgment at law had been obtained, a court of equity would interfere to restrain the collection of the judgment and to award a new trial, where the bill averred that the defendant in the chancery case (plaintiff in the law case) had committed perjury upon the trial, and that the complainant was not at the time of the trial of the suit at law in possession of the evidence with which to prove the falsity of the defendant’s testimony, but had since been able to procure testimony by which he could establish the real truth. In negativing the right to maintain the bill, it was said:

“The weight of authority is decidedly against the granting of a new trial in a court of equity to impeach the testimony of witnesses, or because a party has committed perjury, or even suborned a witness to commit perjury.”

It was added:

“ It might be that a judgment at law might be so manifestly against conscience that a new trial would be granted in equity; as in a case where perjury was established by some instrument or document in writing, or where a witness for the prevailing party has been, subsequent to the trial, convicted of false swearing in the case.”

The case of Miller v. Morse, 23 Mich. 368, was approved, in which case a new trial was asked in a court of equity to relieve against a judgment at law alleged to have been obtained by conspiracy and false swearing of the plaintiff. In disposing of that case, the court said, speaking through Mr. Justice Cooley :

“We do not see why, if this bill should he sustained, the defeated party might not maintain a similar one in nearly every case which the courts of law dispose of.”

The question again was presented to this court in Codde v. Mahiat, 109 Mich. 186 (66 N. W. 1093). In that case it was averred that the verdict was obtained by perjury on the part of the defendant. Complainant averred in his bill that he had now discovered evidence to the effect that the defendant stated to other parties that she was not engaged to complainant, had no love or affection for him, and would not marry him. Again, the claim was made that these were made controlling questions in the case. But in a very brief opinion by Mr. Justice Grant, it was held that the case was ruled by Gray v. Barton, supra. It is undoubted that cases may be found which are not in accord with the views expressed in these two cases, and in which exceptions are introduced which might justify the maintenance of the bill in the present case. But we think the rule is best stated in United States v. Throckmorton, 98 U. S. 61. In an able opinion by Mr. Justice Miller, the rule is stated to be that, if in the trial of a suit at law a mistake has been made in the law, there is a remedy by writ of error.

“ If the jury has been mistaken in the facts, the remedy is by motion for new trial. If there has been evidence discovered since the trial, a motion for a new trial will give appropriate relief. But all these are parts of the same proceeding, relief is given in the same suit, and the party is not vexed by another suit for the same matter. So in a suit in chancery, on proper showing a rehearing is granted. If the injury complained of is an erroneous decision, an appeal to a higher court gives opportunity to correct the error. If new evidence is discovered after the decree has become final, a bill of review on that ground may be filed within the rules prescribed by law on that subject. Here, again, these proceedings are all part of the same suit, and the rule framed for the repose of society is not violated.
“But there is an admitted exception to this general rule in cases where, by reason of something done by the successful party to a suit, there was, in fact, no adversary trial or decision of the issue in the case. Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practiced on him by his opponent, as by keeping him away from court, a false promise of a compromise; or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff; or where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or where the attorney regularly employed corruptly sells out his client’s interest to the other side, — these, and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a new suit may be sustained to set aside and annul the former judgment or decree, and open the case for a new and a fair hearing. * * * In all these cases, and many others which have been examined, relief has been granted on the ground that by some fraud practised directly upon the party seeking relief against the judgment or decree, that party has been prevented from presenting all of his case to the court. On the other hand, the doctrine is equally well settled that the court will not set aside a judgment because it was founded on a fraudulent instrument, or perjured evidence, or for any matter which was actually presented and considered in the judgment assailed.”

In our view, this rule is the only one which can be applied and the sanctity of a judgment be maintained. It was further said by Mr. Justice Miller:

.“The mischief of retrying every case in which the judgment or decree rendered on false testimony given by perjured witnesses, or on contracts or documents whose genuineness or validity was in issue, and which are afterwards ascertained to be forged or fraudulent, would be greater, by reason of the endless nature of the strife, than any compensation arising from doing justice in individual cases.”

As was said by Chief Justice Shaw in Greene v. Greene, 2 Gray (Mass.), 361 (61 Am. Dec. 454), referred to by Mr. Justice Miller in United States v. Throckmorton:

“ The maxim that fraud vitiates every proceeding, must be taken, like other general maxims, to apply to cases where proof of fraud is admissible. But where the same , matter has been actually tried, or so in issue that it might have been tried, it is not again admissible; the party is estopped to set up such fraud, because the judgment is the highest evidence, and cannot be controverted.”

The case of Edson v. Edson, 108 Mass. 590 (11 Am. Rep. 393), is cited by complainant’s counsel. As we read that case, however, it in no way militates against the decision of Chief Justice Shaw in Greene v. Greene. That case is reviewed at length, and the substance of the decision stated as follows:

“Strictly speaking, the decision is an authority only for the proposition that a decree of divorce cannot be called in question or invalidated, on the ground of fraud in its procurement, in a separate and independent libel, subsequently brought between the same parties, when it appears that the first decree was entered after due notice to the adverse party, followed by an adjudication upon evidence offered in support of the allegations in the libel. To this extent there can be no doubt that the decision is in harmony with sound principle and with adjudicated cases.”

It is then shown that the case under consideration is quite different, in that it appeared that the proceeding was instituted by an innocent party without notice, who was aggrieved by a judgment or decree obtained against her without her knowledge by the fraud of the other party. The following cases are in harmony with the rule laid down in this State, and to which we adhere: Pico v. Cohn, 91 Cal. 129 (25 Pac. 970, 27 Pac. 537, 13 L. R. A. 336, 25 Am. St. Rep. 159); Friese v. Hummel, 26 Or. 145 (37 Pac. 458, 46 Am. St. Rep. 610). In Little Rock, etc., R. Co. v. Wells, 61, Ark. 354 (33 S. W. 208, 30 L. R. A. 560, 54 Am. St. Rep. 233), it is stated, and we think it is an accurate summary of the authorities, that, while there are a few decisions which are defensible only on the theory that an allegation of perjury or subornation of perjury may be sufficient to invoke the action of the court against a judgment claimed tobe due thereto, these decisions are contrary to the great weight of authority on the subject. See, also, Graves v. Graves, 132 Iowa, 199 (109 N. W. 707, 10 L. R. A. [N. S.] 216, and accompanying note).

It is contended that the authority of United States v. Throckmorton, 98 U. S. 61, has been shaken by the case of Marshall v. Holmes, 141 U. S. 589 (12 Sup. Ct. 62). Without reviewing at length this latter decision, we think the best answer to this contention is contained in the opinion of Judge Lacombe in United States v. Gleeson, 90 Fed. 778, 33 C. C. A. 272. The precise question of whether Marshall v. Holmes had overturned the doctrine of United States v. Throckmorton was there considered, and the court held, on the contrary, that the rule laid down in the Throckmorton Case was stare decisis. As before intimated, the Michigan rule is established by the two cases of Gray v. Barton and Codde v. Mahiat. The only possible distinction between those cases and the present is that in this case there is an averment that the complainant has secured an admission of the perjury from the party. This, however, only goes to the character of the proof by which the perjury is to be established. The same objection to a retrial of a question foreclosed by a trial and judgment at law would arise and the same considerations which would preclude a party from proving by evidence of other witnesses the fact of perjury would be quite as persuasive to deny the right to rest upon alleged admissions of a party. We think to ingraft such an exception on the rule would open the door to abuse and render a judgment obtained after a full trial on the merits precarious, and impose upon the su9cessful party the burden of unbearable expense in maintaining a right already adjudicated.

The decree of the court below dismissing the bill of complaint is affirmed, with costs.

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


text:
    BOTTJE v. GRAND RAPIDS, GRAND HAVEN & MUSKEGON RAILWAY CO.
    Negligence — Street and Interurban Railways.
    Where the horse which plaintiff was driving became suddenly frightened at a car approaching from behind, and turned from the place of safety in which he was driving it, onto the track in front of the car, and a collision ensued, no negligence is shown on the part of the railway company.
    Error to Ottawa; Padgham, J.
    Submitted April 28, 1909.
    (Docket No. 106.)
    Decided July 6, 1909.
    Case by Edward A. Bottje against the Grand Rapids, Grand Haven & Muskegon Railway Company for negligent injury to plaintiff’s horse and buggy. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      Walter I: Lillie, for appellant.

      Carroll, Kirwin, & Hollway, for appellee.
   Montgomery, J.

The defendant is an interurban railway; its line extending from Grand Haven to Grand Rapids. On the* 20th of May, 1908, while plaintiff was driving alongside of the track in the highway, a collision occured, causing fatal injuries to the horse of plaintiff, and damaging the buggy and harness. The present action originated in justice’s court, and on appeal to the circuit, at the conclusion of the plaintiff’s case, a verdict was directed in favor of the defendant. The declaration was oral, and, as it is brief, tve quote the same at length:

“ Plaintiff declared orally for damages for negligence on the 20th day of May, 1908, on the public highway between Spring Lake and Grand Haven, Mich., while driving horse from Spring Lake to Grand Haven on 7th street, just east of the bridge, east of the Challenge Refrigerator Company, was struck by car coming to Grand Haven behind the plaintiff and in full view of him for a great many feet. They failed to ring a bell or to warn the plaintiff or to slack up the speed of the car, which was backing in. And, as the plaintiff turned out to pass another rig and turned close to the rail, the car came upon him. His horse became frightened, and jumped onto the track or towards it, and was struck or injured so it had to be killed. Buggy injured, and plaintiff thrown from buggy. All to the plaintiff’s damage of $100.”

The evidence shows that, on the day in question, the defendant’s car was being backed along the street; that this was made necessary by the fact that certain streets of the city of Grand Haven were torn up on account of improvements being made. The plaintiff’s description of the collision is that as he was driving along the highway he had occasion to pass a rig being driven by one Staap; that he turned out to go by this rig, and after driving by, his own buggy was far enough from the track so that a car could have passed him without injury, but that, as the car approached, the horse became frightened at the noise in the rear and jumped in front of the car, and received the injuries complained of. We quote from the record:

He testified “ that he had just accomplished the turn— right about there — and passed that right, and was pulling on his left line pulling the pony back in the center of the traveled portion of the highway; that the wheel of his buggy was nearer the track than was the pony when the car came on; that he does not know how far the same projects over the rail, but it does project some; that the ' buggy was smashed, and he don’t know whether the car did it or not; that the car struck the horse first; that the suddenness of the car coming up caused the car to hit the horse; that the suddenness of the car coming up caused the horse to jump, frightened the pony and she jumped, not knowing which way to jump to get out of the way; that it was the noise and suddenness of the car coming up that made the pony jump; that, if she had not jumped in front of the car, ‘ I hardly think it would have taken place;’ that, if there had not been any ear there, she wouldn’t have been killed; that the cause of the accident was the pony jumping in front of the car having become frightened at the noise and suddenness of the approaching car; the car coming up and the pony jumping all occurred very suddenly, an instant of time; that the car went about a car’s length after the pony was struck before it stopped.”

The circuit judge was of the opinion that no negligence was shown on the part of the defendant. He said in determining the case:

“There was no distance back of this place where this accident occurred where it would seem under this testimony that the servants of this company could have acted, or that their attention could have been called to any danger, because the plaintiff here himself says that, if it had not been for the jumping of the horse, there would not have been any danger, he thinks, and, of course, if that is so, there could not have been any negligence on the part of the employes. They could not have foreseen which way that horse was going to jump. Of course, if he had jumped the other way, he would have been safe, or if he had kept straight ahead, he would have been safe.”

We think this fairly states the case, and the application of well-settled rules of law rendered it necessary for the circuit judge to reach the conclusion announced. The case is unlike the case of Montgomery v. Railway Co., 103 Mich. 46 ( 61 N. W. 543, 29 L. R. A. 287), and also unlike Blakeslee v. Railway Co., 105 Mich. 462 (63 N. W. 401). In the first case, the injured party, who was directly in line with the car, was known by the motorman tobe in a position where he would receive an injury if the car proceeded without halting, and in the Blákeslee Case the horse was turned in in front of the car far enough in advance of the collision to have enabled the motorman to bring the car under control. In the present case there was nothing to give notice to the defendant’s employés that a collision was liable to occur. The plaintiff’s carriage and horse were both a sufficient distance from the track to enable the car to pass without causing injury. The case is ruled by Fritz v. Railway Co., 105 Mich. 50 ( 62 N. W. 1007). As we said in that case:

“So long as the plaintiff was traveling in the same direction, and at such a gait as would not result in collision, it cannot be said that the motorman had any occasion to sound the gong, as he would have no reason to apprehend that the plaintiff would come to a stop or make a short turn across the track.”

The judgment is affirmed.

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


author: Hooker, J.

text:
    FETZ v. LEYENDECKER.
    1. Compromise — Judgments—Attorney and Client.
    An acceptance by the attorney of record of §12 in satisfaction of two judgments for §126.97 is not a discharge when the attorney had no authority to effect such compromise.
    2. Same — Questions op Fact — Trial Without Jury.
    The questions of authority to compromise and the sufficiency of consideration were questions of fact for the trial court.
    3. Same — Evidence op Discharge.
    It was not error, on the part of the trial court, to refuse a finding that the judgments were discharged, where it appeared that they were three years old at the time of the alleged settlement, and, although default judgments, no steps had been taken to set them aside, and the authority of the attorney to compromise was disputed.
    Error to Kent; Perkins, J.
    Submitted April 28, 1909.
    (Docket No. 99.)
    Decided July 6, 1909.
    Assumpsit by John P. Fetz against Peter Leyendecker for the amount of certain judgments. A judgment for plaintiff is reviewed by defendant upon writ of error.
    Affirmed.

      Charles A. Watt, for appellant.

      Frank W. Hine, for appellee.
   Hooker, J.

This cause was appealed by the defendant. The findings filed by the trial judge are, in substance, that: (1) Plaintiff recovered a circuit court judgment for $52 damages, costs $37.07, against the defendant on February 17, 1894; (2) on the same date Brenner recovered a circuit court judgment against defendant for costs taxed at $37.92; (3) on June 9, 1903, Brenner assigned his judgment to plaintiff; (4) on August 6, 1897, one Averill, claiming to represent Henry J. Felker, the attorney of record for the prevailing party in both of said cases, accepted from the defendant $12 in full settlement of both judgments, giving his receipt therefor; (5) later said Eelker stated to defendant that all matters between them were settled. He afterwards denied to the plaintiff that he had received payment on said judgments, and that they, or either of them, were settled. It was held, as conclusions of law, that the $12 received by Averill was part payment on the judgments, and that there was no consideration for the agreement of settlement, and that plaintiff was entitled to judgment for the balance thereof, with interest, and gave judgment accordingly;

Exceptions were taken to the refusal to find (1) that the judgments were taken by default when defendant was absent from the State; (2) that he made preparations to reopen the cases and set aside the default, and that Eelker was duly authorized to and did settle the judgments to avoid litigation. Exception was also taken to the finding that Eelker denied to plaintiff that he had received payment upon or had settled the judgments; also to his refusal to find as a conclusion of law that:

“I find that both judgments mentioned in plaintiff’s declaration were default judgments, and that steps were being taken to set aside said defaults, and that, to avoid litigation, the parties settled the same, and that same are in law discharged, and that a judgment of no cause of action should be entered in said cause, with costs to the defendant to be taxed.”

There was a dispute in the testimony as to the authority of Eelker to settle these judgments, and the learned circuit judge refused to find that he had such authority. He also found that there was no valid consideration for the acceptance of $12 in settlement thereof. Both were questions of fact. Defendant could not prevail unless he established the fact that Felker was authorized to settle the case. The court refused to so find, and defendant could not prevail, although it were found that the agreement with Averill was upon a valid consideration. But the court said it was not. The only consideration claimed is that defendant told Averill that he would rather reopen the case than pay more than $10. In view of the fact that the judgments were then three years old, or thereabouts, the judge might well hesitate to find that such suggestion was any inducement to the settlement, or so considered. He found the contrary, and we think it was not error. Even if it were, the failure of the court to find authority was fatal to the defense. There is no occasion to discuss other questions.

The judgment is affirmed.

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


text:
    DETROIT UNITED RAILWAY v. LAU.
    Equity — Fiduciary Relations — Promoters of Corporations.
    Defendant’s brother, while engaged in obtaining rights of way for the Detroit, Rochester, Romeo & Lake Orion Railway, of which he was a stockholder, secured a land contract to defendant as trustee, of certain land in the village of Oxford, and the greater part of the purchase price was paid by the construction company which built the road. Defendant was also its acting attorney. Complainant subsequently became assignee of the property of the railway company, and completed the road on the default of the construction company. It found that a deed had been taken of the land in question in the name of defendant, although the property had been used continuously by the railway company for its corporate purposes, and the defendant had not claimed personal rights in the property prior to this suit: Held, that a bill .to compel a conveyance would lie.

      Appeal from Oakland; Smith, J.
    Submitted April 28, 1909.
    (Docket No. 101.)
    Decided July 6, 1909.
    Bill by the Detroit United Railway against Harry M. Lau and Belle Lau to compel' the conveyance of certain real estate. From a decree for complainant, defendants appeal.
    Affirmed.

      Frank F. Jenkins, for complainant.

      George M. Sayles & Harry M. Lau, for defendants.
   Moore, J.

The Detroit, Rochester, Romeo & Lake Orion Railway was organized under the laws of the State of Michigan for the construction and equipment of a railway line between the villages of Royal Oak and Oxford, Oakland county, and the village of Romeo, Macomb county, Mich. The Detroit Construction Company, Limited, also organized under the laws of the State of Michigan, had the contract for the construction and equipment of said railway. The Detroit, Lake Orion & Flint Railway, also a Michigan corporation, was organized to construct and equip a railway line between the village of Oxford, Oakland county, and the city of Flint, Genesee county, Mich. This company was duly organized, but never did any business except acquire the title to the right of way between the points for which it was organized to construct and equip a railway.

The building of the road over the right of way of the Detroit, Lake Orion & Flint Railway was carried on through the name of the Detroit, Rochester, Romeo & Lake Orion Railway by the Detroit Construction Company, Limited, as general contractor. John Winter, Oliver H. Lau, and Frank C. Andrews owned all the stock of the Detroit Construction Company, Limited, and were the principal owners of the stock of the Detroit, Rochester, Romeo & Lake Orion Railway. On or about July 27, 1901, a contract to sell the Detroit, Rochester, Romeo & Lake Orion Railway, Detroit, Lake Orion & Flint Railway, and certain other railway properties, to the Detroit United Railway, also a Michigan corporation, was made. Some time after this a new corporation was organized known as the Detroit <fe Flint Railway, and the property of the Detroit, Rochester, Romeo & Lake Orion Railway was conveyed to the said Detroit <fe Flint Railway, and by it conveyed to the Detroit United Railway. At the time of the contract, July 27, 1901, the railway line had not been completed from Oxford to Flint, the original contract for construction was surrendered, and the Construction Company, Limited, continued in the completion of the line until on or about February 10,1902, when, through the failure of Frank C. Andrews and the City Savings Bank of Detroit, Mich., it had to abandon the construction, and the same was completed by the Detroit United Railway.

Up to the time of the contract of July 27, 1901, Harry M. Lau was acting as attorney for the Detroit, Rochester, Romeo «fe Lake Orion Railway and said construction company, and a part of his duties was to procure rights of way south of Oxford between Oxford and Flint. He had nothing to do with the right of way except to assist in the condemnation proceedings. November 15, 1900, Oliver H. Lau purchased from Benjamin C. Moore and Eleanor Moore, his wife, the property in dispute, in the village of Oxford, on land contract, and took the title in the name of Harry M. Lau, trustee, of Detroit, Mich. On the 12th day of August, 1901, Harry M. Lau obtained a deed of the property covered by the contract from Mr. Moore and his wife to himself as grantee.

After the Detroit United Railway took possession on August 1, 1901, a controversy arose as to what property was covered by said contract. Harry M. Lau declined to deed the property to the complainant, and this proceeding was commenced to compel a conveyance of the land to complainant. The defendants answered, setting up the purchase of the land in dispute by Oliver H. Lau and disclaimed any interest thereto, except holding the legal title in trust for Oliver H. Lau.

Defendants contend that the bill of complaint should be dismissed, with costs to them, for the following reasons:

(1) The complainant failed to prove the contract alleged in the bill.
(2) The bill prays for the reformation of the deeds, which can be done only on two grounds: (a) Mistake. (6) Fraud.
(3) The cestui que trust was a necessary party defendant to the suit.
(4) The allegations of the bill are not sustained by the proof.
(5) The proof shows the complainant guilty of laches and negligence.

The land bought of Mr. Moore is something more than 181 feet one way and 270 feet the other way, and is at the junction of the complainant railway with the Pontiac, Oxford & Northern Railroad. The complainant road has a subway crossing upon this land, which goes under the Pontiac, Oxford & Northern Railroad. The case was heard in open court. The trial judge granted the relief prayed, but held that Dr. Lau had an equitable lien upon the land for $200 of the purchase price. The defendants have appealed. The complainant did not appeal.

Upon the hearing in this court each of the defenses urged in the court below is insisted upon. In addition to the facts already stated, the following facts are established by a clear preponderance of the testimony:

1. The primary object in obtaining the land was to provide for a crossing of the two roads and for making the necessary connections between them. Dr. Lau claims that all of the land which was not required for the company’s right of way, car house, and station sites should remain his in consideration of his services to the company. There is no pretense that, if the railway had not required some of this land, it would have been purchased.

2. When the sale was made, Mr. Moore understood it was to the Detroit Construction Company. The first payment, $200 in currency, was made to Mm by Dr. Lau, and the final payment, $300, was made by a check of the Detroit Construction Company. It is the claim of the complainant that all of the funds used to make the payment were the funds of the construction company, while it is the claim of defendants that the $200 paid by Dr. Lau was never refunded to him. It is not disputed that the final payment was made by the construction company.

3. The record shows Mr. Moore gave an option upon this land in August, 1900, that in September of that year grading was done, tracks, side tracks, and a “ Y” were constructed upon it, and a good portion of the remaining part was used for storing railroad material.

4. After the contract from Mr. Moore to Harry M. Lau, trustee, was executed and before July 27, 1901, when the contract of sale to the complainant was made, Mr. Robert Oakman, land commissioner of complainant, for the purpose of learning what physical properties were owned by the grantors in the proposed sale, went over the line of the road and the property in question in company with the defendant Harry M. Lau, and saw the land in dispute with its siding, Y, and tracks, and used as a storage place for railroad material, and, though Mr. Lau knew the purpose of the visit of Mr. Oakman, he made no suggestion to him of any claim to the property either in himself or in his brother, Dr. Lau.

5. The land in controversy is needed by complainant and was needed by its predecessors. The contract which the complainant made for the purchase of the roads is sufficiently broad to cover any legal or equitable title that the predecessors of the complainant had in the land in question. If anyone has occasion to complain of the decree made in this case, it is not the defendants.

The decree is affirmed, with costs.

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


text:
    PEOPLE v. ANDRE.
    1. Criminal Law — False Pretenses.
    In a prosecution for obtaining goods by means of false pretenses, respondent being charged with representing himself to be worth more than the facts warranted, evidence of the value of his cold storage plant was properly submitted to the jury where the proof of its value was conflicting.
    2. Same — Evidence—Hearsay.
    Testimony that the complaining witness was informed over the telephone of the substance of a statement of respondent’s assets, made to a bank to which respondent referred the witness, was admissible to show reliance thereon, although incompent to prove the making of the statement.
    3. Same — Variance in Amount.
    A difference between the amount which respondent claimed to be worth, and that stated in the information, is not a prejudicial variance when that charged was within the statement made by him.
    Exceptions before judgment from Eaton;' Smith, J.
    Submitted April 29, 1909.
    (Docket No. 113.)
    Decided July 6, 1909.
    William Andre was convicted of obtaining goods under false pretenses.
    Affirmed.

      Frank A. Dean, for appellant.

      Elmer N. Peters, Prosecuting Attorney, for the people.
   Hooker, J.

Defendant, being engaged in the purchase of butter and eggs at Grand Ledge, and the owner of an alleged cold storage plant there, made a contract with the complainant, living at Eaton Rapids, to pay him a stipulated price for those commodities, f. o. b. car at Eaton Rapids, under which arrangement complainant shipped him a quantity of each on the 11th and 12th days of May, 1906. Not receiving payment for the same, he caused defendant’s arrest, on a charge of obtaining the same under false pretenses. Being convicted, the defendant has appealed to this court.

A former verdict in this cause was reversed. See 153 Mich. 531 (117 N. W. 55), where the facts are stated at length. The information charged the following representations, viz.: (1) That defendant was owner of the Grand Ledge storage plant; (2) that he desired to purchase eggs for the purpose of storage; (3) that he intended to store said eggs in the East; (4) that he was springing the price in order to secure early eggs for the purpose of storage; (5) that he referred complainant to the Grand Ledge State Bank for information, and that complainant was informed by said bank that he had made a statement of property showing that he was worth $18,000 over and above debts, liabilities, and exemptions. The evidence showed that defendant did own the cold storage plant at Grand Ledge, and the court so instructed the jury.

There was testimony tending to show that the defendant issued and mailed cards offering a price named for butter and eggs, one of which came to the complainant. That the price so stated was, in the opinion of the complainant, higher than he (the complainant) could afford to pay. He, therefore, went to see defendant, and offered to sell produce to him. The representations made grew out of the complainant’s proposal to ship butter and eggs to defendant, with draft attached to bill of lading, which defendant objected to, for reasons stated, and made the representations aforesaid, except that he did not state directly to complainant that he was worth $18,000 over and above his debts, liabilities, and exemptions, but referred complainant to the Grand Ledge State Bank as a source of information. On May 11, and May 12, 1906, complainant made shipment to defendant; May 12th being Saturday. Afterwards he received information leading him to distrust defendant’s solvency, and he called up the Grand Ledge State Bank, and had a talk by telephone with a person who stated to him that he was the cashier of said bank, and that defendant had some weeks before filed a statement of his pecuniary circumstances, in which he stated that his property amounted to $18,900 over and above his debts, liabilities, and exemptions. There was no other evidence of the identity of the person so talking as the cashier, except that he said he talked to persons often by phone about defendant, and there was evidence that such a statement had been filed as stated by such person. There was evidence to the effect that this information came to the complainant in time for him to have stopped said produce before its delivery to the defendant, and that he refrained from doing so for the reason that he believed said statement. There was also testimony tending to show that the defendant was insolvent at that time; that he knew that he was; that he issued said cards, and paid a high price, with the design of obtaining large consignments of produce, and afterwards settling with his creditors at 10 cents on the dollar, as he had heard that another person had done. It is contended that the court should have directed a verdict for the defendant upon the ground that the statement made to the bank was substantially true. There was testimony that this was a statement of the Cold Storage Company, and that William Andre, the defendant, was the sole proprietor. The value of the plant was stated by him to be $25,000, and there was other testimony to that effect, but there was also testimony of a lower value, which made it a disputed question of fact. It was therefore proper to submit the question to the jury.

Error is assigned upon the admission of testimony regarding the conversation by telephone. The importance of this testimony was the bringing to the knowledge of complainant the fact that defendant had made such a statement. It is true that this was not competent proof of the fact that a statement had been made, but that fact was proved by other witnesses, and it was competent to show that the fact was communicated to complainant. The testimony was admissible for that purpose, as it tended to prove that complainant learned an existing fact from an apparently authentic source which might well, and he stated did, influence his action. The testimony was admissible, and it was not error to refuse to strike the statement from the case, as it was proved by other competent testimony.

Error is also assigned on the refusal of the circuit judge to give a number of requests to charge. The first three have been covered by what has been said. The fourth is based on an alleged variance between the allegation that the cashier of the State bank informed complainant that defendant had made a statement that he was worth $18,000 over and above his debts, etc., and the proof which showed that such statement was that he had $18,900, over debts, etc. There is no merit in this claim. The fact that the statement was $900 larger than the amount stated to complainant does not militate against the people’s claim. He made the statement, and the sum stated by the cashier is within that in the statement. No question is raised over the information.

The other requests were sufficiently covered by the charge of the learned circuit judge, which was clear and fair.

There are a few assignments relating to the introduction of testimony, hut they are unimportant.

We find no error in the record, and the proceedings are affirmed.

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


text:
    PEOPLE v. VAN ALSTYNE.
    1. Appeal and Error — Bill of Exceptions.
    A prolix bill of exceptions containing numerous frivolous assignments of error is not excused because appellant’s attorney caused it to be prepared by his stenographer.
    2. Same — Praotioe in Supreme Court — Briefs.
    A general statement in the appellant’s brief that the points relied on arose under certain topics to be discussed in their order, is not a compliance with Supreme Court Rule 40, requiring a statement of the errors relied on, and does not enable the court to determine what is abandoned.
    3. Intoxicating Liquors — Evidence of Unlawful Sales — Drugs and Druggists.
    The reports to the prosecuting attorney of the sales made in respondent’s drug business, showing a large number of sales of intoxicants and large quantities sold, are competent evidence to be considered, in the light of other testimony, to prove the illegal nature of the business.
    4. Same — Premises—Drugs and Druggists.
    Testimony that the defendant kept a toilet room adjoining his drug store, where purchasers sometimes drank the liquor sold to them, was admissible to show the illegal nature of his business.
    5. Trial — Practice—Time for Argument.
    The limitation of one hour on a side for argument was not error, especially when respondent’s attorney used only a part of it.
    6. Same.
    ■Argument of the prosecuting attorney based on the number of sales and the character of the purchasers was proper.

      7. Intoxicating Liquors — Unlawful Sales by Druggist.
    A request to charge the jury that purchases for medicinal purposes might be made for members of the purchaser’s family was properly refused, in the absence of any evidence in point.
    8. Same.
    Instructions to the jury that if respondent sold intoxicating liquors and permitted the customers to take it into his rooms connected with the drug store, and drink the liquor, he could not escape responsibility by remaining in the front of his store where he might avoid seeing what use was made of the liquors, and that it was his business to know what occurred on his premises, were correct statements of the law.
    Error to Van Burén; Des Voignes, J.
    Submitted April 30, 1909.
    (Docket No. 118.)
    Decided July 6, 1909.
    Charles H. Van Alstyne was convicted of violating the local-option law, and sentenced to imprisonment for three months in the county jail.
    Affirmed.
    Respondent’s 28th request was:
    “You are instructed that it is not necessary for the purchase of liquor for medicinal purposes should be made by the purchaser for his own personal use, as any adult person has a right to purchase liquor for medicinal purposes for another adult person or members of his own family.”
    Respondent’s 40th and 41st requests were:
    “You are instructed that the statute provides that it is a violation of law to sell liquor to be drunk on the premises; but I instruct you that if any person or persons purchased liquor of the respondent during the time covered by the information on this case, and secretly secreted themselves in the storeroom or water-closet of respondent’s store and drank said liquor without the knowledge of said respondent, then the same would not be a sale of liquor to be drank upon the premises within the meaning of the statute.
    “You are instructed that the statute provides that the druggist shall not make a sale of liquor to be used as a beverage, but that if the respondent made sales of liquor to any person or persons during the period covered by this information upon the statement of such purchaser that it was for medicinal use, in good faith, and such purchaser or purchasers afterwards secretly used the same as a beverage unbeknown to the respondent, then such use as a beverage would not make the respondent liable in this case, as the same would not constitute a sale to be used as a beverage within the meaning of the statute.”

      Barnard & Lewis, for appellant.

      Glenn E. Warner, Prosecuting Attorney, and Earl L. Burhans, Assistant Prosecuting Attorney, for the people.
   Hooker, J.

This cause is before us on 103 assignments of error, 2 of which contain 38. different allegations of error. A large proportion of these assignments and allegations are frivolous, and counsel attempt to excuse a needlessly prolix bill of exceptions by the statement that their stenographer prepared it. It should be, and we think that it is, understood by the profession that the preparation and settling of a bill of exceptions call for a high order of professional skill and knowledge, and we cannot countenance the practice of turning the duty over to unprofessional stenographers, or inexperienced office or clerical help.

Counsel have also omitted compliance with Rule 40 of this court; the general statement of certain points relied on, with the announcement that “these and kindred subjects will bea discussed in their order,” not being a statement of the errors relied on, as we have heretofore construed the rule. The statement should enable the court to learn what errors are abandoned, and this brief does not.

We have gone through this record and attempted to ascertain the more important and substantial questions, and shall omit reference to all others. These points are:

(1) The introduction in evidence of defendant’s reports of sales.
(2) The admission of testimony regarding the disposition of liquors purchased, and the charge relating thereto.
(3) The limitation of time for argument.
(4) The propriety of the prosecutor’s argument.
(5) The refusal to give defendant’s 11th, 28th, 39th, 40th, 41st, and 42d requests to charge.
(6) ■ Some objections to the charge as given.

A brief outline of the facts in the case will be given, to show the manner in which the legal questions arise. Tho defendant is charged with a continuing violation of the local-option law, by keeping an alleged drug store where it was his habitual practice to sell intoxicating liquor as a beverage and contrary to law. There was some testimony tending to show that one or more persons purchased liquor from the defendant, which they drank in his presence upon the premises. The reports made to the prosecuting attorney by defendant, as required by law, were admitted in evidence, although there was an absence of direct proof that many, if any, of the sales therein listed were unlawful.

There was proof that defendant’s door to one of the back rooms was equipped with a “buzzer,” and that persons were in the habit of operating it, whereupon defendant’s clerk would open the door and ask, “What do you want for medical purposes ? ” and hand out the intoxicating liquor demanded. It was shown that a back room was equipped with a refrigerator 12 or more feet long, and proportionately wide and high, in which he kept beer upon ice, for his customers. -The reports heretofore alluded to showed long lists of sales of beer, wine, gin, whisky, and alcohol, and we append from the record a list of such sales for the period covered by the information.

1907. Beer. Whisky. Wine. Gin. Alcohol.

June 59 cases 46 qts. 42 oz. 74 oz. 48 oz.

July 132 “ 63 “ 135 “ 67 » 57 “

Aug. 109 74 “ 120 “ 49 “ • 82 “

Sept. 68 “ 59 “ 87 “ 12 “ 34 “

Oct. 26 “ 52 “ 87 “ 46 " 60 “

Nov. 23 “ 53 “ 59 “ 27 “ 58 “

Dec. 30 “ 54 “ 49 “ 8 “ 28 “

1908.

Jan. 27 “ 43 “ 44 “ 17 “ 33 “

Feb. 23 “ 46 “ 64 “ 39 “ 52 “

Mar. 29 “ 57 “ 7 “ 30 “ 16 “

Apr. 42 “ 63 “ 176 “ 17 “ 58 “

May 30 “ 35 “ 82 “ 19 “ 28 “

Number of sales, 6498.

Reports of sales. Counsel say that the reports of sales were inadmissible, because it was not shown that such sales were unlawful. These reports were defendant’s admissions of sales, not necessarily unlawful sales, but of sales actually made in the course of business. They were competent evidence for this purpose, and they were to be considered in the light of the other evidence relating to the place, the customers, the frequency of their several purchases, the quantities and nature of the liquors purchased, the facilities for drinking upon the premises without detection, the practice of defendant’s patrons in that regard, and his method of conducting his business. These things taken together show abundant opportunity for a conscientious juror to find that defendant’s alleged drug business was a sham and cover for a saloon, and that his principal business was the systematic evasion of the liquor law, and we fail to see how any self-respecting juror could have reached any other conclusion. Indeed, we should hesitate to reverse the case had a verdict been directed. There was no error in admitting and allowing the jury to fully examine and. analyze these reports.

Disposition of liquor purchased. The people contended, and there was evidence tending to show, that the defendant had a toilet room, adjoining what may properly be called his “taproom,” in which there were toilet facilities and a sink with water, and a shelf upon which there was kept a glass. This was conclusively proved, not being denied. There was also evidence that purchasers sometimes drank liquor, purchased there, in that room. The defendant’s brief states that, “ The record shows that the respondent was absolutely uninformed as to what use the liquor was put to after it left his place of business after the sale was made,” and that it was error to permit evidence that it was used as a beverage after being taken away. How it can be said that the record shows that the defendant did not know the object of the purchase or the disposition made of the liquor, inasmuch as the defendant was not a witness, is not clear to us. The testimony was proper as far as it went.

Complaint is made that the judge refused to give the 40th and 41st requests to charge, which in effect were that “ if a person purchased liquor of the respondent and secretly secreted himself in the storeroom and drank the liquor without the knowledge of the defendant, the transaction could not be a sale to be drunk upon the premises within the meaning of the statute,” and counsel argue that ‘ ‘ if defendant made sales to any person upon the statement that it was for medicinal purposes, in good faith, and the purchaser afterwards secretly used it as a beverage unbeknown to defendant, such use would not constitute a sale of liquors to be used as a beverage within the meaning of the statute.”

The latter request was covered by the charge:

“The meaning of the statute, drinking beer or other intoxicating liquors on the premises, means the immediate premises where the liquor is purchased, and does not include an adjoining lot or lots over which respondent has no control whatever. (I have aimed to make that clear to you, that in the last instruction it was confined to the boundaries in the storeroom wherein he did business.) Hence, if the respondent in this case sold beer in his drug store, or liquor, and the same was taken by the purchaser to the back lot adjoining the drug store and there drunk by the purchaser, it would not in itself constitute a sale of liquor to be drunk on the premises, and I charge you that if you find that there was a vacant lot back of respondent’s drug store, and that liquor sold by the respondent to purchasers was actually drunk on this lot without the consent or knowledge of the respondent in this case, then I charge you that the drinking of such liquor or beer upon said vacant lot would not constitute a sale of liquor to be drunk on the premises.”

As to the subject covered by the former, the learned circuit judge said:

“The statute prohibits a druggist from selling any intoxicating liquors to any person or persons to be drunk upon the premises. In this case it is claimed that the defendant had in his drug store several rooms: First, the front room, where the general stock of goods was kept; then it is claimed by them there was a prescription case in the room, somewhere, dividing it, or somewhere; and it is for you to remember where it was; that near by was the toilet room, and off from that another room. Now, it is for you to find whether that was the location and the situation of the premises. It is contended by the people that in this back room or rooms of the store purchasers of beer and whisky would enter and drink from bottles and glass; it is not disputed that these rooms were all under the control and occupancy of defendant. I have reference now to the rooms contained within the four walls of this store; it is for you to remember what the witnesses testified to in relation to the rooms that were there. If you find purchasers of intoxicating liquors, after they had purchased such liquors, did go to this room or rooms and drink liquors, then defendant is chargeable with notice of what was occurring there; he could not make such sales in such manner and permit them to go, if you find he did permit them to go, in the rear of the store, or deliver them goods, intoxicating liquors, from the ice box, at a point in close proximity to rooms and appliances or fixtures so furnished by him, easy of access, where they might enter to drink, and avoid liability by going to or remaining in the front of the store where he could not see them; it is his business to know what is occurring on his premises. ”

This sufficiently covered the question under the proofs in the case.

Limitation of time for argument. We are of the opinion that a limitation of an hour on a side was not error. Moreover, counsel did not use that time, and there was therefore no injury.

Improper argument. We find no occasion for an objection to the argument made.

Requests refused. The 11th request related to “reasonable doubt.” It was sufficiently covered in the charge.

There was no occasion for giving the 28th request, while the 39th, 40th, and 41st are covered by what has been said.

The court instructed the jury that:

“In this case it is claimed that defendant had in his drug store several rooms; that is, that there were compartments: First, a front room, where his general stock of goods was kept; then a prescription case dividing the room, or in some portion of the room which is for you to remember; near by this a toilet room, and off from that another room. Now, the court does not desire to instruct «you that that is found from the facts; it is for you to remember; I simply speak of this in that way so that you may apply the evidence; that in this back room or rooms of the store purchasers of beer or whisky would enter and drink from bottle or glass. It is not disputed that these rooms were all under the control and occupancy of the defendant. If you find purchasers of intoxicating liquors, after making their purchases, did go to these rooms and drink the liquor purchased, then defendant is chargeable with notice of what was occurring there; he could not make such sale in such manner and permit them to go in the rear of the store — that is in the rear of the store room; I do not mean outside of the building — or deliver them from the ice box at a point in close proximity to rooms and appliances furnished by him where they might enter to drink, if you find that he did have such rooms and appliances so furnished to drink, and thereby avoid liability by going to or remaining in the front of his store where he could not see them; it is his business to know what is occurring upon his own premises; and I charge you that if you find that during the time alleged in the information any person or persons on several occasions did enter said room or rooms and drink intoxicating liquors so purchased of the defendant on different occasions, remember, drinking intoxicating liquors so purchased of defendant, then defendant would be guilty of keeping a place in violation of the local-option law, and your verdict should be guilty.”

There was no error in this.

We have endeavored to satisfy ourselves that the defendant has no substantial cause for complaint upon this record, because it is a criminal case, although, for reasons heretofore given, we would have been warranted in dismissing the appeal under our rules and practice.

The judgment is affirmed.

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