text:
    McMINN v. C. KERN BREWING CO.
    1. Master and Servant — Workmen’s Compensation Act — Finding oe Industrial Accident Board.
    On certiorari to review an award by tbe industrial accident board, under the workmen’s compensation act, if there was competent testimony to support the finding of the board, the Supreme Court will not review or weigh the evidence.
    2. Same — Evidence—Sueeiciency.
    Evidence that plaintiff’s decedent, who was a solicitor and collector for defendant brewing company, had no stated hours of employment, but worked as he pleased, often meeting prospective customers in the evening, when he spent money in their places to entertain them and treat persons present; that he waj allowed by defendant to use an automobile furnished by it as he saw fit; that on the day of the accident he met a prospective customer at a ball game, and arranged to take dinner with a few friends at the customer’s hotel that evening, when they were to talk business; that on the way to the hotel, while decedent was driving defendant’s automobile, he ran into a pile of bricks in the street and was fatally injured; held, sufficient to support the finding of the board that the accident arose out of and in the course of decedent’s employment.
    See notes in L. R. A. 1916A, 23; L. R. A. 1917D, 80.

      3. Same.
    It was competent for the manager of defendant brewing company to testify to the nature and scope of decedent’s employment, and of conversations about the business.
    4. Same.
    It was also competent for a prospective customer to testify relative to the negotiations and arrangement with decedent for the meeting at the hotel which decedent was on his way to keep at the time the accident occurred.
    5. Same — Wiieul Misconduct — Question of Fact.
    The question of decedent’s intentional or wilful misconduct being one of fact, where, from the record as made, the testimony being contradictory, the industrial accident board was unable to find that deceased was guilty of such misconduct as to bar recovery under the act, the finding of the board will be affirmed.
    Certiorari to Industrial Accident Board.
    Submitted June 19, 1918.
    (Docket No. 98.)
    Decided July 18, 1918.
    Gladys E. McMinn presented her claim for compensation against the C. Kern Brewing Company for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant and the Michigan Workmen’s Compensátion Mutual Insurance Company, insurer, bring certiorari.
    Affirmed.

      Beaumont, Smith & Harris, for appellants.

      John H. Dohrman, for appellee.
   Stone, J.

This case is here upon certiorari to the industrial accident board to review its order affirming the award of $10 per week for 300 weeks, made 'by the committee of arbitration to the claimant or plaintiff, as the widow of Wesley McMinn, deceased.

It is conceded that all parties were under the act. The accident happened August 16, 1917, and resulted in the death of Mr. McMinn on the night of that day. On August 22, 1917, the respondents filed a report of the accident in which, among other things, it was stated that the occupation of the injured party was,

“Collector, solicitor and chauffeur. Department or branch of work. Collecting and soliciting. * * * How long so employed? Year and a half. * * * Date of accident. Aug. 16, 1917. Hour of accident. 8 p. m. * * * Wages or average earnings per day. $35 per week. Working hours per day. Different hours. Cause and manner of accident: Was driving a Ford touring car, struck a pile of brick and auto overturned. Nature and extent of injury. Death.”

After the claim was filed and on October 6,1917, the insurance company filed a denial of liability on the ground that there was no accident, and if there was one, it did not arise out of, nor in the course of, the deceased’s employment. Later, and on November 3, 1917, the insurance company advised the board in writing that it wished to deny liability upon the further ground, that the employee was guilty of wilful and intentional misconduct.

In their petition for the writ of certiorari the respondents allege errors in the findings and order of the board in the following particulars: .

“1. By holding, as matter of law, that Wesley McMinn, deceased, sustained an accident which arose out of and in the course of his employment by the C. Kern Brewing Company.
“2. By holding that there is any testimony in the • record to sustain a finding that Wesley McMinn, deceased, met his death in an accident which arose out of, and in the course of his employment by the C. Kern Brewing Company.
“3. By holding that the death of Wesley McMinn occurred while he was in the course of his employment by the C. Kern Brewing Company.
“4. By holding that the death of Wesley McMinn arose out of his employment by the C. Kern Brewing Company.
“5. By holding that Wesley McMinn, deceased, was not injured by reason of his intentional and wilful misconduct.
“6. By holding that the accident which resulted in the death of Wesley McMinn was not due to the deceased’s wilful and intentional misconduct.
“7. By holding, as matter of law, that. Wesley McMinn, deceased, was not injured by reason of his intentional and wilful misconduct.
“8. By holding, as matter of law, that Gladys. E. McMinn is not prevented from recovering compensation from the defendants because Wesley McMinn was injured by reason of his intentional and wilful misconduct.”

We cannot better state the views and conclusions of the board, than to quote somewhat at length from its findings. They were in part as follows:

“The first question is: Did the accident arise out of and in the course of the employment of the deceased?
“As to that question, it appears that Mr. McMinn was in the employ of the respondent brewing company as a solicitor and collector. He had no stated hours of employment. He seems to have worked more ' or less every day, but he worked about when he pleased. He usually went to the office of the brewing company between eight and ten in the morning. He often worked evenings. His duties as solicitor and collector were to solicit business for the brewing company, to get purchasers for the brewing company’s beer, to sell all the beer he could, and to collect the money owing to the brewing company. It appears very clearly that in the solicitation of customers and in the placing of the product the respondent employer permitted Mr. McMinn to entertain prospective customers and to spend money in their places by way of treating persons present, etc. He often met the persons he was to do business with in the evening. It seems that he looked up prospective customers wherever he could find them, and he was also advised regarding any such prospective customers by the manager of the brewing company by telephone or otherwise.
“It appears that prior to August 16, 1917, the deceased met Mr. Marvin J. Perrigo, proprietor of the Riverview Hotel, which hotel was located at Ecorse. Mr. McMinn and Mr. Perrigo discussed the proposition of Mr. Perrigo beginning the purchase of beer from the respondent employer, but no definite agreement was reached. It appears that on August 16, 1917, a ball game was arranged for hear Ecorse by the members of some sort of a social organization at or near that place. Mr. McMinn and Mr. Perrigo both attended and took part in the ball game. Mr. Perrigo testified that he' spoke to Mr. McMinn at that time about purchasing beer from the respondent employer. He said:
“ ‘And on the day of this ball game we were talking about it, in fact I spoke to him about it, and he said, “Well, after the game” — this was before the game started — and he said “after the game, I think some of the boys and myself will be down for dinner.” And he says, “I will talk to you then about it.” ’
“At about eight o’clock that evening, Mr. McMinn left the ball grounds to go to Mr. Perrigo’s for the dinner, and to talk about Mr. Perrigo beginning the us© of the respondent employer’s beer. Mr. McMinn was driving an automobile belonging to the respondent brewing company. The machine was furnished him by his employer, and was kept in a garage at the home of Mr. McMinn. It appears that the work Mr. McMinn was doing required him to use the automobile, and the employer furnished it and permitted him to use it about as he saw fit. The nature of the work of the employee appears to have been such that he was left largely to his own judgment and devices as to how he did his work and when he did it, but he was -required to produce results and he evidently did produce them.
“It seems clear that his chief purpose in going to the Perrigo hotel was for the purpose of doing business for his employer with Mr. Perrigo. He seems to have been active and alert in the interests of his employer, and it does not appear to the board that the fact that he took some friends with him to dinner at Perrigo’s is of any importance. It is quite possible that he believed that the taking of the friends to the dinner at the Perrigo hotel and the entertainment of them there might aid him in securing the business of Mr. Perrigo. He was, in oiir judgment, driving his employer’s automobile on his employer’s business at the time he met with the accident and was killed.
“When he got quite near to the Perrigo hotel he had occasion to drive past a point where the street upon which he was driving was torn up to some extent. There seems to have been some bricks piled in the street. The car evidently struck the bricks, tipped over and was badly damaged, and he was killed. He was not instantly killed, but died about six hours afterwards at the Ford hospital, to which he had been taken. The board reaches the conclusion that the accident did arise out of and in the course of the employment of the deceased employee.
“See Bradbury’s Workmen’s Compensation Law— Third Edition (1917), page 480, where the rule is stated as follows:
“ ‘If an employee is conveyed to and from Ms work in a conveyance furnished by the employer, under an express or an. implied contract to furnish such conveyance, an injury to an. employee while on the journey arises out of the employment.’
“See, also, Judson v. Andrews & Peck Co., 1 Conn. Comp. Dec. 54, Bradbury’s Workmen’s Compensation Law, Third Edition (1917), p. 483; Beaudry v. Watkins, 191 Mich. 445; Kunze v. Detroit Shade Tree Co., 192 Mich. 435; and Porritt v. Railway, 199 Mich. 200. [See, also, Malone v. Railway, ante, 136.]
“The other question in the case is as to whether compensation should be refused on the ground that the deceased was guilty of wilful and intentional misconduct. Section 2 of part 2 of the workmen’s compensation law (2 Comp. Laws 1915, § 5432) reads:
“ ‘If the employee is injured by reason of his intentional and wilful misconduct, he shall not receive compensation under the provisions of this act.’
“This language has frequently been before the industrial accident board for consideration, and the question of when an employee is guilty of wilful and intentional misconduct has also been before the Supreme Court in many cases. In none of the cases so far has the Supreme Court held that an employee was guilty of intentional and wilful misconduct. Some of the cases in, which the question has been considered by our Supreme Court are the following: Jendrus v. Steel Products Co., 178 Mich. 285; Clem v. Motor Co., 178 Mich. 340; Rayner v. Furniture Co., 180 Mich. 168; Redfield v. Insurance Co., 183 Mich. 633; Gignac v. Studebaker Corp., 186 Mich. 574; Beaudry v. Watkins, 191 Mich. 445; Ramlow v. Moon Lake Ice Co., 192 Mich. 505; Kent (now Drayton) v. Chemical Co., 195 Mich. 671; Oniji v. Studebaker Corp., 196 Mich. 397; Cook v. Hoertz & Son, 198 Mich. 129; Riley v. Motor Co., 199 Mich. 233. * * *
“There is some disagreement as to how rapidly the deceased was driving his automobile. Walter Lush, a man who was riding in the machine, testified that the machine was being driven about 20 miles per hour and not to exceed 25 miles per hour at the most. He said the bricks in the roadway were the cause of the accident. Portions of an ordinance of the village of Ecorse were offered in evidence. Section 18 of the paper filed with the industrial accident board, which paper purports to be a copy of the ordinance, reads:
“ ‘Automobiles and motorcycles shall be driven at a rate of speed upon said streets not to exceed fifteen (15) miles per hour.’
“Another section provides that any person violating any of the provisions of the ordinance shall upon conviction be punished by a fine of not to exceed $100 and costs. It also provides that in the imposition of the fine, the court may make a further sentence that the offender be imprisoned in the Detroit house of correction until the fine and costs be paid, but not for a greater period than 90 days.
“It is claimed that because Wesley McMinn appears to have been driving more than 15 miles per hour at the time the accident occurred, he was therefore injured and killed ‘by reason of his intentional and wilful misconduct.’ There is no claim that the deceased wilfully or intentionally intended to injure or kill himself. There is no claim that he intended to have this accident occur for the purpose of procuring workmen’s compensation, either for himself or his dependents. He was probably driving something more than 15 miles per hour, but it does not appear to the board that he was driving at a greater rate of speed than the rate at which automobiles are usually driven on the streets of a village like Ecorse. * * *
“Presumption of law is doubtless to the effect that Mr. McMinn was driving 15 miles per hour or less. That presumption may possibly be overcome in this case by the testimony of the witnesses who put the rate of speed at 20 or 25 miles per hour. One of the witnesses for the respondents, Arthur F. Martin, in response to a leading question, said he thought the machine was going 25 to 30 miles per hour. He said that when the car struck the bricks It turned over twice, but that it only went 10 or 15 feet after it struck the bricks before it stopped.
“It appears to the board that the witnesses in this case knew very little about how fast the machine was actually going. It was after dark and the headlight was on the machine. It would certainly be pretty difficult for one standing on the street to estimate the rate of speed of a machine coming toward him. The man in the machine thought the machine was going about 20 miles per hour. There is no testimony from him to the effect that he knew anything about judging the rate of speed of a machine. It is possible that the machine was going more than 15 miles per hour, but the board is unable to say that the deceased met his death because of driving an automobile at a rate of speed greater than 15 miles per hour.
“The supreme court of California once had a case considerably like the present case before it. That case is Fidelity & Deposit Company of Maryland v. Industrial Accident Commission of California, 171 Cal. 728 (154 Pac. 834; L. R. A. 1916D, 903). In that case the industrial accident commission found that the man who was killed was driving at a rate of speed from 35 to 45 miles per hour. The commission awarded compensation, and the supreme court of that State; set the award aside. The California statute, however, was considerably different from the Michigan statute. The California statute provided that compensation should be paid ‘where the injury is proximately caused by the employment, either with or without negligence and is not so caused by the intoxication or wilful misconduct of the injured employee.’ — Subdivision 3, section 12 (a), California Workmen’s Compensation Act, as amended by chapter 607 of the . Laws of 1915.
“The California automobile law provided that it was unlawful to drive an automobile at a rate of speed in excess of 30 miles,per hour. The deceased in that case was driving at from 35 to 45 miles per hour. The California supreme court peremptorily set aside the award of the commission, saying:
“ ‘Tile conclusion is unavoidable that he was guilty of the wilful misconduct contemplated by the law.’
“By a law passed in 1917, effective January 1, 1918, the legislature of the State of California changed the. provision above quoted to read that compensation should be paid ‘where the injury is proximately caused by the employment, either with or without negligence, and is not caused by the intoxication of the injured employee or is not intentionally self-inflicted.’ — Subdivision 3 of section 6, California Workmen’s Compensation Law of 1917, which took effect January 1, 1918.
“It does not seem to the board that under the language of the Michigan statute the industrial accident board should follow the decision in the California case. * * * It would be impossible for this board to say that the deceased was in this case killed because he may have been driving more than 15 miles per hour. Possibly he was driving 20 to 25 miles per hour. Did that cause his death? If he had been driving 14 miles or 141/2 miles, or at any rate of speed less than 15 miles, would the accident never have happened? Did the fact that he may have been driving 5 miles or 10 miles per hour more rapidly than permitted by the ordinance bring about that accident. It is impossible for the board .to say that it did. * * *
“It is quite probable that Mr. McMinn’s death would have occurred just the same if he had been driving 14 miles per hour. We cannot say that the accident would not have happened just as it did happen if we were sure that the rate of speed at which the machine was going was less than 15 miles per hour. The only-authorities upon the direct proposition cited in Bradbury’s Workmen’s Compensation Law, Third Edition (1917), are found on page 563 of that work.
“We do not find that any workmen’s compensation law except that of Michigan contains the phrase ‘intentional and wilful misconduct.’ . Many of. the acts use the term ‘serious and wilful misconduct.’ Some of them seem to use the term ‘serious misconduct,' and others the term ‘wilful misconduct.’ The original bill as introduced in the Michigan legislature at the first Extra Session of 1912, contained the phrase ‘serious and wilful misconduct.’ .It was amended in the house by striking out the word ‘serious’ and inserting in lieu thereof the word ‘intentional.’ See House Journal, First and Second Extra Sessions 1912, page 74; Senate Journal, First and Second Extra Sessions 1912, pages 99 et sequitur; Senate Journal, First and Second Extra Sessions 1912, page 131; House Journal, First and Second Extra Sessions 1912, page 142. It would seém that the legislature deliberately inserted the word ‘intentional’ in place of the word ‘serious,’ and it seems to the board that ‘intentional and wilful misconduct’ ought to mean something more than ‘serious and wilful misconduct.’ There is nothing in the record to convince the board that the deceased wilfully or intentionally violated the ordinance of the village of Ecorse. He may not have known that he was driving more than. 15 miles per hour. He may not have known that such an ordinance existed. Yet, even though he did not, he would probably be presumed to know of the existence of the ordinance. But even if he is presumed to have known of the existence of the ordinance it is not shown that he wilfully or intentionally violated it. On this record the board cannot say that the deceased, was guilty of wilful and intentional misconduct which caused his death. In this connection we wish to mention the case of People v. Barnes, 182 Mich. 179, decided July 25, 1914. In that case the court charged the jury that if at the time Barnes, struck the girl who was killed by his automobile, he was operating his car in excess of the speed limit, he was guilty of manslaughter. The Supreme Court held that the charge of the trial court was erroneous. The court say:
“ ‘From aught that appears in this record, the injury might have occurred just the same as if the respondent had been running 9 miles an hour as it would were he running 11 miles an hour. The charge eliminates from the case all question of whether the respondent, in good faith, believed he was running within the statutory limit, and makes a mistake of judgment on the part of respondent amount to a crime. While it is not the law that, in order.to convict the respondent, it must be made to appear that he knowingly violated the statute because he is bound to know the law, yet there is authority to the effect that he must have been aware, in order to be convicted, that he was doing the unlawful act complained of.’
“It seems to the board that the reasoning in the case of People v. Barnes is applicable in the case now before us. There is nothing in this record to indicate that this accident might not haVe happened just as it did happen if the deceased was running his car 14 miles per hour.”

The important question for our consideration is, Was there any evidence to support the findings of fact of the board?

Turning to the testimony we find the following: Julius Kern, the manager and representative of the Brewing Company’s business at Detroit, testified that he employed Mr. McMinn, who had been in the company’s employ for about a year and a half, as collector and solicitor. He testified in part:

“Q. In this employment were the hours stated hours of employment, or were they irregular hours of employment?
“A. Well, no, I would not say that these hours were regular. He came to work at different hours in the morning and he quit at different hours in the evening.
“Q. Would his employment, if he had certain leads to follow, or certain business to solicit, would that take him into — would his duties continue into the evening?
“A. At times. * * *
“Q. When did you last see Mr. McMinn?
“A. I saw him the day before he was killed, I think on a Wednesday. I forget the date.
“Q. Did you know of any prospect which Mr. McMinn had to solicit business from, in the village of Ecorse?
“A. Why, he mentioned a party out there the day before he was killed, the last day I saw him, that he was going to go out there.
“Q. Do you recollect the name of tne party?
“A. Mr. Perrigo was his name, was the name of the party he was to see.
“Q. Well, now, as to that sort of employment, Mr. Kern, would you, or did you, rather, superintend or command or supervise that employment, or would he be left to his own devices, and his own resources as to obtaining such prospects?
“A. Well, I should say it was both ways. He would use his own, judgment and he would suggest to me certain people, and at times he would suggest to me where he was going to go, and what he would do that day; if I would consent to it he would do it; if I did not he would not do it. Then sometimes I would suggest certain people that he would call on.
“Q. What kind of a conveyance or vehicle did he have; what was it, a Ford machine?
“A. A Ford car.
“Q. Who owned that machine?
“A. Why, the company owned the machine, the Kern Brewing Company. * * *
“Q. This automobile which Mr. McMinn used, which you say belonged to the company, state where that was kept nights?
“A. Why, it was kept — he kept it generally at his garage at the house. * * *
“Q. Likewise, Mr. Kern, is it a fact that Mr. McMinn would be required and did make some collections in the evening occasionally?
“A. Yes, he occasionally made collections for the company in the evening.
“Q. From customers?
“A. Yes. * * *
“Q. By Chairman Zierleyn: What were the duties of Mr. — that is, as to hours, the duties of Mr. McMinn, as relates to hours, Mr. Kern?
“A. While he didn’t have any set hours. He would probably come to work — if he didn’t finish his work for .the day until six or seven o’clock, or five o’clock, why, he would not come back until the next morning, probably nine or ten in the morning. I never asked him to come back at a certain hour in the morning. He came around when he was ready to do so. I never had any words with him to that effect. He always used his own judgment. I was satisfied he was doing business. I never told him to come back in the morning unless it was for a certain purpose. He generally came around nine o’clock in the morning, sometimes half-past nine. At times at half-past eight in the morning.
“Q. Would his duties take him to this Perrigo’s place, if he were a prospective customer?
“A. Yes, it might take him there any time, I might say any reasonable hour in the afternoon or evening. Any time he would tell me, ‘Well, I can’t see this certain party until seven or eight o’clock at night, that is when they are generally home.’
“Q. If he were there at the time, it would be within the hours of his employment, if he were there in the interest of his employment?
“A. He would talk business to them, naturally, I presume he would be. * * *
“Q. Do you know that Mr. McMinn had him. in contemplation as a customer?
“A. He mentioned his name as one of them he was going to call on.”

The man Perrigo was examined, and after testifying that he had known Mr. McMinn well, about four years, the following appears:

“Q. Do you recall any time prior to the time of Mr. McMinn’s death that you had any appointment with him with reference to a business matter relating to his line of business, the brewery business, for instance?
“A. Yes. I met Mr. McMinn prior to his death, and Mr. Zimmerer.
“Q. Mr. McMinn and Mr. Zimmerer?
“A. No, just Mr. McMinn. I was talking with him in regard to. changing draft beer.
“Q. Where did you meet Mr. McMinn at the time?
“A. At the — Zimmerer’s place, it' was about two weeks prior to this ball game, I think this ball game was partly suggested.
“Q. The ball game had been partly arranged?
“A. Had been partly arranged for this certain day.
I spoke to him in regard to changing beer. He said that he would see what he could do about it.”

(Here follows the testimony of this witness quoted in the board’s findings.)

“Q. Were you at the ball game yourself?
“A. I played with them.
“Q. Now, at the time you first — or that the matter of changing beer was first spoken of in Mr. Zimmerer’s place, did you bring up the matter?
“A. I did.
“Q. You brought it up?
“A. Yes.- I approached him on the subject. * * * Now, in coming back from the ball game, he met with his accident, of course?
“Q. Were you in the same car?
“A. No, I was in my own car. They left ahead of me, and I passed them on the road. I was home, and as I went into the hotel I drove around to the back as usual, and I went into the hotel, and one of the waiters came up to me and said, ‘There has been a terrible accident out there.’ ”

The witness then described the scene of the accident which he at once visited and where he saw McMinn ; this was about a half block from his hotel.

On cross-examination, the following occurred:

“Q. When was the arrangement made relative to your going out there to your hotel for dinner?
“A. Right on the ball ground.
“Q. On the ball ground?
“A. Yes. I knew nothing of their coming out.
“Q. You didn’t know anything about their coming out there before that time?
“A. Not coming out there for dinner.
“Q. Sir?
“A. Not coming out there for dinner. I knew nothing about it until I came to the ball ground, until I talked with Mr. McMinn.”

■Being further examined by Chairman Zierleyn, this appears:

“Q. When you talked with Mr. McMinn relative to the transfer of your business to him, I did not quite get the answer. When was that?
“A. That was about two weeks prior to the ball game.
“Q. Had there been an appointment made at the time?
“A. Nothing definitely, any more than he would see me about that time. .
“Q. When did you next see him again?
“A. At the ball game.
“Q. What was said at the time relative to it?
“A. I spoke to him in regard to it. I asked him what he had done about it, and the reply he made in regard to the price, he said, that ‘some of the boys and myself are coming down for supper or dinner after the ball game, and I will have a talk with you then.’
“Q. This was that he would come to your place after the ball game?
“A. Yes.
“Q. That was said at the ball game? ‘after which he was killed?’
“A. That was said before the ball game started.”

By Mr. Alexander (one of the arbitrators) :

“Q. Did Mr. McMinn have anything personally to do with getting the game up ?
“A. Nothing more than anybody else.
“Q. Then, during the game itself, he did not talk to you about any business, did he?
“A. Nothing only just what was said. I spoke to him in regard to it. I didn’t know then that he was coming down until he told me he would be down after the game, him and some of the boys.”

By Chairman Zierleyn:

“Q. That he would come down to your place?
“A. He would come down to my place and talk it over.
“Q. How many of the boys came down at the time this accident happened?
“A. Why, I think there were 7 or 8.
“Q. Those in your machine, and the ones in his?
“A. No, there was one more machine.”

There was other testimony of conversations with Mr. McMinn, most of which was objected to as hearsay. What we have quoted is not, we think, subject to that objection. It was competent for the manager of the brewing company to testify to the nature and scope of the employment, and of conversations about the business. And we think that it was also competent for Mr. Perrigo to testify relative to the negotiations, and the arrangement with Mr. McMinn for the meeting at the hotel.

We have repeatedly held that, under the statute, if there was competent evidence to support the finding, we will not review or weigh the evidence. We think there was some evidence in support of these findings.

We are of the opinion that from the evidence which we have quoted, an inference can be drawn that Mr. McMinn, at the time of his accident, was on his way to the place of business of Perrigo, in the course of his employment, and that the accident arose out of, and in the course of his employment. We consider- the case a close one upon the facts, but it is not our duty to weigh the evidence.

We shall not add to what has been quoted from the findings and conclusion of the board, upon the subject of intentional and wilful misconduct. We call attention, however, to a lengthy note to the case of Clem v. Motor Co. (178 Mich. 340), found in L. R. A. 1916A 355. It is there stated that the subject or question is one of fact. It will be noted that in the instant case the board found that the respondents had failed to show that the deceased was guilty of any intentional or wilful misconduct within the meaning of the workmen’s compensation act. That is to say: from the record as made, the board was unable to find that deceased was guilty of such misconduct. Such being the finding upon this question of fact, we think it is our duty to affirm the findings and order of the board; and the same will stand affirmed. .

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


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    CALHOUN v. CRACKNELL.
    1. Executors and Administrators — Estates of Decedents — . Distribution.
    Under the statute, upon allowance of the final account of the executor or administrator, the prohate court is required to distribute the estate by an order, naming the persons taking and the portions which they take. 3 Comp. Laws 1915, § § 13915, 13916.
    2. Same — Wills—Construction.
    In order to properly declare the succession, the court is obviously called upon to construe the will, where the deceased died testate, and a special petition for the construction of the will is not necessary.
    3. Estates of Decedents — Distribution—Infants—Guardian Ad Litem.
    There is no requirement in the statute for the appointment of a guardian ad litem, as a prerequisite to the distribution of an estate, where one of the beneficiaries is an infant, although in case of partition such appointment is expressly required.

      4. Same — Wills—Distribution—Real Estate — Personalty.
    Under the statute relating to the power of the probate court to construe wills and make distribution of estates, the same rule should apply to real estate as to personal property.
    5. Same — Partition—Real Estate.
    Section 13918, 3 Comp. Laws 1915, clearly contemplates the assignment of real estate to devisees, and then provides for the partition thereof.
    6. Same — Distribution—Partition.
    The right to a partition is confined to such real estate as has been assigned by the probate court after the payment of debts.
    7. Executors and Administrators — Wills—Construction—Probate Courts — Res Adjudicata.
    Where a will was construed by the probate court, the final account of the executrix allowed, and the real and personal property assigned, on a bill by an adopted daughter of testator, a beneficiary under the will, for the construction of the will as to the real estate devised, plaintiff claiming that, under the will, the widow should have a life estate only, held, that the order of the probate court, from which there was no appeal, was res adjudicata, and binding upon plaintiff.
    Appeal from Chippewa; Fead, J.
    Submitted June 5, 1918.
    (Docket No. 33.)
    Decided July 18, 1918.
    Bill by Maybell Leslie Cracknell Calhoun against Sarah Jane Cracknell for the construction of a will. From a decree dismissing the bill, plaintiff appeals.
    Affirmed.

      John W. Shine, for plaintiff.

      McDonald & Kaltz, for defendant.
   Stone, J.

The plaintiff herein, claiming a remainder under the will of the late Arthur B. Cracknell, brought this suit for the construction of the will. From a decree dismissing the bill, the plaintiff has appealed.

The will in question was a holographic will, and as it appears in the record (with its peculiar punctuation and use of capital letters) .is as follows:

“Sault Ste. Marie, Mich.,
“January 25th, 1890.
“I Arthur, B. Cracknell of Sault Ste Marie Michigan being of Sound mind And memory do make this my last will and testiment first I give devise and bequeath All of my real estate and personal Property of whatever name or value And wherever Situated of which I may own at the time of my death to my wife Sarah. Jane. Cracknell to have use and control during her natural life time And at her death One thousand Dollars to go to my Adopted Daughter Maybell Leslie Cracknell and the balance of my Estate at my wife’s death. If she does not make A will to go to my adopted Daughter above named I hereby constitute and appoint Sarah Jane Crackness and Frank V. Flower executrix and executor to this my last will and testiment. In witness whereof I hereunto Set my hand and Seal this Twenty-fifth Day of January A. D. 1890.
“Arthur. B. Cracknell.
“B. P. Fuller
“Witnesses Frank V. Flower.”

Mr. Cracknell died April 13, 1899, and the will was admitted to probate, May 15, 1899, and the defendant, his widow, qualified as executrix and proceeded to administer the estate. Mr. and Mrs. Cracknell had no issue, but the plaintiff is their adopted daughter. The estate consisted mostly of real estate at Sault Ste. Marie, Michigan, and was appraised at about $20,000, with some encumbrance thereon.

The plaintiff was about 14 years old at the time of testator’s death. On May 12, 1899, the defendant, upon her own petition, was appointed general guardian of the plaintiff and her estate.

On the 14th day of July, 1902, the defendant, as executrix, filed her final account, and on August 11, 1902, such account was allowed by the probate court and an order entered allowing her final account and assigning the estate to defendant, from which order there was no appeal. The order relating thereto, after reciting the filing of due proof of publication, proceeds as follows:

“It is therefore ordered that said account be, and hereby is, allowed and approved as the final account of the said Sarah J. Cracknell, executrix of said estate, and ordered to be placed on file and recorded.
“And. it is further ordered and decreed that all of the real estate and personal property of the said estate be and the same is hereby assigned absolutely to the said Sarah J. Cracknell under the will, except the sum of one thousand dollars, which is assigned to the said Sarah J. Cracknell, to have the use and control thereof during her life, and at her decease to go absolutely to Maybell Leslie Cracknell if she be then living; and, upon the said Sarah J. Cracknell’s placing the said one thousand dollars under the control of this court, or giving satisfactory bond therefor, said estate, both real and personal, shall be relieved from and free from any charge on account of said one thousand dollars.”

Subsequently a petition was filed to relieve the estate from the $1,000 legacy, and an order relieving the estate from said legacy was duly entered on the 12th day of May, 1903, in and by which it was ordered that that sum of money be placed on interest at the Soo Mutual Building & Loan Association, and that the interest thereon be paid to Sarah Jane Cracknell, during her life, and that after her death the same should be paid over to Maybell Leslie Cracknell, and that thereupon the said estate be released and freed from any and all charge on account of said legacy. Said order was complied with, and the bond of the executrix was released and canceled and the estate settled and closed.

When the order assigning the estate was made the plaintiff was not represented at the hearing by any guardian ad, litem, or in any other manner.

It is the claim of the plaintiff that by the. terms of the will the defendant was given a life estate only in all of the réal property and was entitled to the possession thereof, but that at her death the plaintiff is to have $1,000 and the balance of the estate. In other words, it is the claim of the plaintiff that the defendant’s interest in the property was that of a life estatp only. The bill alleged that the defendant had allowed the buildings on, the lands of the estate to become dilapidated and out of repair, thus destroying the corpus of the property. And the defendant, claiming to be the owner in fee of the lands, denied the plaintiff’s interest as remainderman, and denied that she owed plaintiff any duty as to the real estate.

The trial court held that the order of the probate court assigning the residue of the estate was res adjudicatei and binding on the plaintiff; and, as we have said, dismissed plaintiff’s bill, and a decree was entered accordingly.

There is little or no dispute about the facts in the case. In argument the claims of the plaintiff are as ■ follows:

(1) That the defendant took only a life estate under the will.

(2) That the probate court did not construe the will as to plaintiff’s remainder.

(3) If the order of the probate court assigning the residue is held to assign the fee title, is it binding on the plaintiff?

(4) Is a decree of distribution where minors are not represented void, or voidable?

(5) If the order assigning the residue assigns a fee title to defendant, and if that order is binding on the plaintiff, then the defendant should be held to hold the remainder in trust for the plaintiff.

The learned circuit judge filed a written opinion in the case which so clearly presents our view that we insert the same here:

“It may be laid down, as a fundamental proposition that the vesting of estates by will is, without constitutional limitations, if any, peculiarly within the control of the legislature. The legislature has prescribed the procedure in the settlement of estates, and the courts are bound by the statutory provisions. In most proceedings no personal notice is. required, but a notice by publication is sufficient to apprise all parties interested or to bind them by the order of the court. Under the statute upon allowance of the final account, the probate court is required to distribute the estate by an order, naming the persons taking and the portions which they take. 4 How. Stat. (2d Ed.) §§ 11154, 11155 (3 Comp. Laws 1915, §§ 13915, 13916).
“The distribution does not transfer property, but is merely declaratory. In partition, one having an undivided interest in the - whole of the real estate is invested by the partition proceedings with the whole title of part thereof. Distribution differs from partition in that the former transfers no title, but merely declares the persons upon whom the law casts the succession, and the extent of their respective interests. Parkinson v. Parkinson, 139 Mich. 535. In order to properly declare the succession, the court is obviously called upon to construe a will where the deceased died testate. Under the statute cited, the probate court is invested with that power, and at the time of the distribution of the estate, has jurisdiction to construe the will and make distribution accordingly. Glover v. Reid, 80 Mich. 228, 232; Byrne v. Hume, 84 Mich. 185, 86 Mich. 546; Dudley v. Gates, 124 Mich. 440.
“The judgments of the probate court stand upon the same basis as the judgments of other courts, and are conclusive. The propositions passed upon become res adjudicata. Burgess v. Stribling, 134 Mich. 33, 38; Lawrence v. Hathaway, 128 Mich. 119, 123. This is true of an order or judgment of distribution of an estate, and the judgment, after a construction of a will, becomes res adjudicata of such construction. Byrne v. Hume, supra; 18 Cyc. p. 663; 40 Cyc. p. 1859. As bearing upon the question and sustaining the doctrine, see, also, In re Doyle’s Estate, 147 Mich. 544, 548; Farlin v. Sanborn, 161 Mich. 615.
“Counsel for plaintiff admits the force of the order of distribution, but denies its applicability in the case at bar, for two reasons: First, that a special petition for the construction of a will is necessary; and, second, that at the time of the settlement of the estate and the order of distribution, the plaintiff was an infant, and a guardian ad litem should have been appointed for her. The first reason is answered by the decision cited above, and by the fact that the statute does not contemplate a necessity for a special petition. As concerns the second reason, the infancy of the plaintiff, I have been able to find no requirement in the statute for the appointment of a guardian ad litem as a prerequisite to the distribution of an estate. The authorities are to the effect that such appointment is not necessary where the statute does not require it. 10 Enc. Pl. and Prac. p. 625. In some cases, as in partition, such appointment is expressly required by law.
“Probate proceedings are not personal in their nature, but belong to a class of action in rem, or quasi in rem. Stevens v. Hope, 52 Mich. 65. (In re Brown’s Estate, 198 Mich. 544, 563.) When the final account has been approved and all demands against the estate are satisfied, the distribution is a matter of course which it is the duty of the court to make. Dickison v. Reynolds, 48 Mich. 160.
“The court having jurisdiction to distribute the estate and to construe the will for the purpose, the failure to appoint a guardian ad litem for a minor could be no, more than an irregularity of procedure. It is fundamental that an irregularity, not, jurisdictional, even though sufficient to require the vacation of a judgment on direct attack, does not affect its force when questioned in another proceeding. If the appointment were necessary, the judgment would be, not void, but merely voidable. 10 Enc. Pl. and Prac. p. 627, and following. Under the authorities, it appears to me that so long as the judgment of the probate court construing the will remains in force, it is res adjudicóla upon that proposition, and bars any other or further proceeding for the construction of the will.
“A decree dismissing the bill will be entered, with costs to the defendant.”

In most ox the cases cited in the opinion of the circuit judge relating to the power of the probate court to construe a will in making distribution of estates, the estates consisted of personal property only; but that the same rule should apply to real estate we think clearly appears by reference to other sections of the statute.

Section 13918, 3 Comp. Laws 1915, clearly contemplates the assignment of real estate to devisees, and then provides for the partition thereof. This is fully recognized by this court in Parkinson v. Parkinson, supra, at p. 536.

The right to a partition is confined to such real estate as has been assigned by the probate court after the payment of debts. Campau v. Campau, 19 Mich. 116, 122. In that case Justice Christiancy, speaking for this court, said:

“The settlement of the estate and delivery of the property to the heirs by order of the probate court, would undoubtedly constitute necessary prerequisites to a partition in, that court, where, under the statutes, partition is to be regarded as an incident of, and part of the proceedings for, the settlement of the estate. The right to a partition is there confined to such real estate as had been assigned by that court to the heirs or devisees, after the payment of debts.” Citing the statute.

See, also, Haddon v. Hemingway, 39 Mich. 615.

We therefore agree with the court below that in order to properly declare the succession, the probate court is obviously called upon to construe a will dealing with real, as well as personal estate. Under the statute cited, the probate court is invested with power, and, at the time of the disposition of the estate, has jurisdiction to construe a will and make disposition accordingly; and we are of the opinion that the case was properly disposed of upon the ground that judgments of the probate court stand upon the same basis as judgments of other courts of record, are conclusive, and become res adjudicata.

The questions urged by appellant, we think, are fully covered by the opinion above quoted, and need not be farther discussed. The decree below is affirmed, with costs to the defendant.

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


text:
    CITY OF FLINT v. CHICAGO BONDING & SURETY CO.
    1. Municipal Corporations- — Principal and Agent — Authority to Bind Principal — Notice—Ratification.
    An assistant in the office of the city engineer of the city of Flint, who signed letters as assistant city engineer, although under the charter there is no such officer, had no authority to bind the city by a statement in one of his letters to the surety company .on the contractor’s bond that payments on the various contracts of said contractor were being withheld until all of the damage suits then pending in court had been settled; there being no evidence that the city or the council had any notice or knowledge of such statement.
    2. Same — Principal and Surety — Assignments—Notice.
    Where the city was not notified of claims for damages arising out of the negligence of a paving contractor until after the paving was completed and paid for, no obligation rested upon the city to withhold moneys due the contractor on other contracts for the protection of the surety on the contractor’s bond against pending'damage suits, in the absence of notice to the city that such funds had been assigned to the surety company.
    Error-to Genesee; Stevens, J.
    Submitted June 12, 1918.
    (Docket No. 56.)
    Decided July 18, 1918.

      Assumpsit by the city of Flint against Richard Heystek and Cornelius Vander Vliet, copartners as Heystek & Vander Vliet, as principals, and the Chicago Bonding & Surety Company, as surety, on a statutory bond. Judgment for plaintiff on a directed verdict. Defendant surety company'brings error.
    Affirmed.

      Jackson & Fitzgerald, for appellant.

      John H. Farley (Guy W. Selby, of counsel), for appellee.
   Stone, J.

Action on the bond of the defendants. It appears that on May 19, 1914, a contract was made by the plaintiff with the defendants Richard Heystek and Cornelius Vander Vliet, copartners, under the firm name of Heystek & Vander Vliet, for the paving by the latter of South Saginaw street between Fifteenth street and Peer avenue in the city of Flint.

On March 26, 1914, the defendants executed a bond to the city in the penal sum of $9,565.49, containing the following condition:

“The condition of this obligation is such that whereas said Richard Heystek and Cornelius Vander Vliet are about to enter into contract with the city of Flint for the construction of a pavement on S. Saginaw street, commencing at the Fifteenth street intersection of said S. Saginaw street, and extending from thence to the Peer avenue intersection thereof in the city of Flint, Michigan. Now, therefore, if the.said Heystek and Vander Vliet do well and faithfully perform the said contract in all its terms and conditions and shall perform the work as contracted for according to the plans and specifications and detailed drawings in the said contract referred to and made a part thereof, and shall save and keep harmless the said city of Flint from any and all actions brought against the said city of Flint by reason of the construction of said pavement, in any way arising during the performance of said contract, in accordance with the terms and conditions of said contract, then this bond to be null and void; otherwise to remain in full force and effect.”

In the instant suit it was alleged and claimed by the plaintiff, that the defendants did not save and keep harmless the said city from any and all actions brought against the city by reason of the construction of said pavement, in any way arising during the performance of said contract, in that one Sidney Hall, because of the negligence of said Heystek & Vander Vliet in the construction of said pavement, because of their failure to observe the conditions of said contract, and the ordinances of said city, commenced a suit against the said city of Flint in the circuit court for the county of Genesee for personal injuries arising out of the construction of said pavement, and on, to wit, February 10, 1916, recovered a judgment against the city for $1,500 damages and costs of suit to be taxed, which costs were thereafter taxed at $66.85, and which said judgment was thereafter and on April 9, 1917, duly affirmed by the Supreme Court (195 Mich. 638), and the costs in said last-named court were taxed in favor of said Hall and against the city at $38.80, and which said judgment and costs and interest thereon were thereafter paid by said city.

The defendant Chicago Bonding & Surety. Company gave notice under the general issue, among other things, that it would show in defense: That the city of Flint agreed, undertook, and promised to retain and withhold moneys due to the contractors, until all claims against the city or contractors, arising out of any work done by the contractors on the streets of the city had been paid; and that, notwithstanding such promises, the city failed to withhold sums due the contractors, thereby depriving the surety company of the right to have the same applied in payment of the judgment obtained by Hall.

Upon the trial the plaintiff introduced in evidence the bond and contract, notice to the" defendants of the claim of Hall, and of the summons, and the proceedings in the case of Hall against the city, the facts and circumstances of Hall’s injury, and the payment of that judgment after affirmance in this court. It appeared that at the time the city had notice of the claim of injuries made by Hall, which was on or about December 24, 1914, all sums due defendants Heystek and Vander Vliet under the contract had been fully paid. It appears inferentially that one Darling had also made a claim against the city for personal injuries which arose at the same time that the Hall claim arose; and that defendants Heystek and Vander Vliet had other contracts with the city, and that they had given other similar bonds, with the defendant Chicago Bonding & Surety Company as surety. There was nothing in the contract for paving the street where Hall was injured giving the right to the city to withhold money due, for any purpose.

In its defense the defendant Chicago Bonding & Surety Company offered in evidence certain correpondence between said surety company and W. R. Drury, who signed his letters as assistant city engineer. These letters were objected to upon the ground that Drury had no authority to write them, or to bind the city, and that even the city engineer could not bind it, and the objection was sustained. Those letters, although never received in evidence, are spoken of in the record and briefs as defendants’ exhibits 1, 2, 3 and 4. The letter of July 7, 1915, was in answer to one written by the surety company to the city engineer. Those letters were as follows:

“City of Flint, Michigan, July 7, 1915.
“Chicago Bonding & Surety Co.,
“1520 Dime Bank Bldg.,
“Detroit, Mich.
“Gentlemen: Replying to your letter of the 6th inst. regarding the contracts of Heystek & Vander Vli.et, I have to advise that the following contracts have been completed and the work accepted:
“St. John Street, pavement, Avon to Houran.
“S. Saginaw St. pavement, Fifteenth to Peer.
“First Avenue pavement, Detroit to Garland.
“Harriet St. pavement, P. M. R. R. to Industrial.
“Regarding the contract for the Richfield road pavement, East to Geneseret street, will say that the work is finished and there remains $300.00 to be paid on acceptance of the work.
“On the Avon street pavement, from Richfield road to the river there remains $1,983.70 to be paid. On Avon street pavement, from St. John street to the bridge there remains $1,513.20 to be pfiid.
“Very respectfully,
[Signed] “W. R. Drury,
WRD:W “Ass’t City Engineer.”
“City of Flint, Michigan, September 20, 1915.
“Chicago Bonding & Surety Company,
“Chicago, Illinois.
“Gentlemen: Replying to your letter of the 18th inst. I have to advise that Avon street pavements, from Richfield road to the river, and from St. John street to the bridge, have been completed and accepted and final payment was made Heystek & Vander Vliet, contractors, on July 20th, 1915.
“Very respectfully,
[Signed] “W. R. Í)RURY,
“Ass’t City Engineer.”
“Chicago Bonding & Surety Company,
- “Chicago, Illinois, July 10, 1915.
“Mr. W. R. Drury,
“Assistant City Engineer,
“Flint, Michigan.
“Dear Sir: I have before me your favor of July 7th, addressed to our Detroit, Michigan, office in regard to various paving contracts with Heystek & Vander Vliet in your city, and note that the St. John street pavement, Avon to Huron; South Saginaw street, Fifteenth to Peer; First Ave., Detroit to Garland; Harriett street, P. M. R. R. to industrial, and Richfield road east to Guernsey have been completed.
“We are not quite clear regarding the pavement mentioned in the last paragraph of your letter, i. e., Avon street from Richfield road to river and Avon street from St. John street to the bridge.
“Will you kindly advise if these last two contracts have been completed, and if not what percentage remains to be completed?
“In regard to the various amounts you are retaining we presume you will withhold the payment of these pending the outcome of the suit of Wm. Darling against the city of Flint for $2,000.00 and Sidney Hall against the city of Flint for $2,500.00 now pending in the circuit court of Genesee county for personal injuries received during the construction of one of these pavements.
“Thanking you in advance for a reply, for which we enclose stamped and addressed envelope, I am,
“Very respectfully,
“W. A. Westerfield, Surety Claim Dept.,
“Chicago Bonding & Surety Co.”
“City of Flint, Michigan, July 12, 1915.
“Chicago Bonding & Surety Company,
“Chicago, 111.
“Attention of Mr. H. N. Farrand,
“Supt. of Contract Dept.
“Gentlemen: Replying to your letter of the 10th inst. I have to advise you that Avon street’ pavement, from Richfield road to the river, and from St. Johns street to the bridge are practically completed. There are a few details to be finished by the contractors before the work will be accepted. The payments on the various contracts of Mr. Heystek are being withheld until all of thé damage suits now pending in circuit court have been settled. The Richfield road pavement, from East street to Geneseret street has been finished, but there are a few things to do before the work is accepted.
“Very respectfully,
[Signed] “W. R. Drury,
“Ass’t City Engineer.”

When these letters were offered by said defendant there was a lengthy colloquy between court and counsel, of which the following, during the examination of the city auditor, is a fair synopsis :

“Mr. Fitzgerald: I want to make, then, a complete offer on the record of what we propose to show. We propose to show by this witness along the line he has been examined that on July 10, 1915, the city of Flint had approximately $8,700 in its possession belonging to the contractors Heystek & Vander Vliet, the principals in certain bonds furnished by the surety company to the city of Flint; that the correspondence had between the city of Flint, consisting of exhibits 1, 2, 3, and 4, was had and that the city of Flint received notice that we expected the city of Flint to hold those moneys for our protection because of the fact the city of Flint had notified us that one Hall and also one Darling were both making claims against the city and that the city was claiming that those liabilities, whatever they might amount to, were caused through the negligence of Heystek & Vander Vliet in the performance of their contract.
“The Court: Contract or contracts?
“Mr. Fitzgerald: I say they said contract in that case, but it was through negligence, through something they were responsible for and for which we were liable; We further offer to show that the Chicago Bonding & Surety Company had an assignment of all those moneys, and that the Chicago Bonding & Surety Company at that time had a right to come to the city of Flint and demand that that money be paid over to it, but that it refrained from doing so and was induced not to do so by reason of the promise of the city to hold the same until these damage suits were settled, and we offer exhibits 1, 2, 3 and 4 in evidence for the purpose of showing that fact.
“The Court: Now, Mr. Reporter, it is conceded in this case that the surety company were sureties on the contract or bond given by Heystek & Vander Vliet on a certain paving job on South Saginaw street, from Fifteenth street to Peer avenue.
“And it is also admitted and conceded that at the time that this notice was given, — the claimed notice was given, to the city — that the contractors and the city had settled all matters pertaining to this particular contract.
“Mr. Fitzgerald: I think that is true, yes, sir. Mr. Farley says it is true and I suppose it is.
“The Court: On this question, there is no proof in the case that that man who wrote the letter that you have offered in evidence had any authority from the engineer or from the city of Flint to — I haven’t seen the letter, but I assume I know what they are — to write the letters or to bind the city by it; that the city can only be bound by an act of its common council, or by some one specifically delegated to act for it under given circumstances and conditions. Now, they claim there was an assignment made of all the moneys belonging to the city to these sureties. It is conceded if there were such an assignment, the city had no knowledge of it. Is that right?
“Mr. Fitzgerald: Yes, sir; I don’t say that the city had any notice or any knowledge of our assignment, but I take the position it is not necessary that they should know, in view of the duty they owed to us as surety.
“The Court: That is a question of law. You haven’t got to that yet. What were you going to say, Mr. Farley?
“Mr. Farley: I was going to say in addition to what the court has said, there is no evidence that the letter dated July 10, which is offered in evidence as exhibit 4, was ever called to the attention of any one outside of the witness Drury, the assistant city engineer at that time.
“The Court: Was he assistant or an employee?
“Mr. Farley: He was simply an employee, assistant city engineer, and under the evidence in the case there is no evidence that that letter was ever called to any-body’s attention. So there is not even evidence that the city had notice of any such thing.
“Mr. Fitzgerald: I think I perhaps ought to supplement my offer by saying this, that we offer to show that the first letter that was written by the surety company and out of which this correspondence grew, and which exhibits 1, 2, 3 and 4 follow, that that was written to the city engineer of the city of Flint, and that these exhibits 1, 2, 3 and 4 followed, after that and they show on their face they were a continuous, running correspondence.
“The Court: And that was, as I understand, after the matters between this contractor and the city on this particular pavement had all been settled and paid?
“Mr. Fitzgerald: You are right about that. It is conceded, at least on the strength of Mr. Farley’s statement, it is all paid up. And we want the record to further show that we offer to show that the surety company on the strength of this correspondence with the city relied upon the city to hold these moneys and did so until September, 1915, when it found out that the moneys had not been retáined and that the claims of Hall and Darling had not been settled by the contractors.
“The Court: It is also conceded — you state that the surety company had an assignment of all the moneys belonging to these contractors?
“Mr. Fitzgerald: Yes.
“The Court: But that that knowledge was never communicated to the city?
“Mr. Fitzgerald: No, I don’t claim that, but I claim —what I do claim about it is this, and what I offer to show, perhaps it is more a legal conclusion but I will put it in this way. In asking the city of Flint to withhold these moneys, we were acting in our rights and we were taking control of those moneys under our assignment under the promise of the city of Flint to hold them until the claims of Hall and Darling were settled, and we were relying upon that.
“The Court: That might be true if the city had made the promise.
“Mr. Fitzgerald: Well the notice'to them that they Should do so. I claim on both propositions. It constitutes notice.
“Mr. Farley: There is no notice to them.
“The Court: No, I think I shall have to sustain the objection.
“Mr..Fitzgerald: Well, that view of the court dispenses with any further evidence on the part of the defense. In other words, it goes to our whole defense.”

Whereupon the court directed a verdict and judgment for the plaintiff for $1,737.30 and costs.

The defendant Chicago Bonding & Surety Company has brought the case here for review, and the following errors are assigned:

1. That the court erred in sustaining .plaintiff’s objections to the offer in evidence of exhibits 1, 2, 3, and 4.

2. That the court erred in refusing to permit the defendant to show that there was approximately $3,-700 in the possession of the city of Flint on July 7, 1915, belonging to the contractors Heystek and Vander Vliet.

3. That the court erred in refusing to permit the defendant Chicago Bonding & Surety Company to show that it had an assignment of all moneys due the contractors from the city of Flint.

4. Error in directing a verdict and judgment for the plaintiff.

Although the contract between the city and the contractors is not fully set forth in the record, it is the claim of appellant that it contained the following provision:

“All payments made to second parties (Heystek and Vander Vliet) for labor and material furnished under this contract, shall be in accordance with section 3 of chapter 23 of the charter of the city of Flint.” (Act No. 346, Local Acts 1901.)

That section contains the following provision:

“The city engineer shall, from time to time, make estimates of the amounts earned and payable upon any contract for work done and material furnished, and report the same to the council, and thereupon it shall be the duty of the council to order payment from the proper funds sixty per cent, of the amount so reported.”

Much time was spent in the examination of the witness Drury bearing upon the nature and extent of his authority. Under the charter there is no such officer as assistant engineer. Drury appeared to be an employee of the city. But if it were to be conceded that he possessed all of the authority of the city engineer, he had no authority under the charter to bind the city by the statement contained in the letter, viz.:

“The payments on the various contracts of Mr. Heystek are being withheld until all of the damage suits now pending in circuit court have been settled.”

There was no evidence that the city or the council had any notice or .knowledge of such statement, and the statement could not be held to bind the city to withhold moneys due, or to become due to contractors arising out of other separate matters or contracts.

Counsel for appellant cite Dundas v. City of Lansing, 75 Mich. 499, and quote the following language from the opinion:

“The individual knowledge of officers or agents oi a municipal corporation, who in such capacity have powers or duties conferred upon them with reference to a given matter, is the knowledge of the corporation, and notice to such officers or agents, is notice to the corporation, and the corporation is bound or affected by such knowledge or notice.”

That language was used with reference to notice of a defective cross-walk, given to the alderman of the ward, about six months before the accident. It has no application here where the letters to the city engineer and Drury were not notice of matters to any officers who had powers or' duties conferred upon them with reference to the making of payments to the contractors — powers and duties .resting upon the council only.

Under the charter, the city engineer was required to estimate the amount earned from time to time on public contracts, and report the same to the council, but the council was the sole body having authority to order payment of any sums on any such contracts. It was not shown, nor was any offer made to show, that the council was ever notified by the surety company in respect of any of the matters referred to in these letters, or that the council ever authorized the city engineer, or his assistant, to make any representations in respect of those matters, or that any representations made by either of them, were ever ratified or confirmed by the council.

While it was claimed at the trial that the surety company had an assignment of such funds, no offer was made to show, but on the contrary it was disclaimed, by appellant’s counsel, that any notice of such assignment had ever been given to the city.

An examination of the record shows that in 1914 the contract for the South Saginaw street pavement was made, that the amounts earned thereunder were fully paid to the contractors, and that after that, and on December 24th, the city received notice of a damage claim of Sidney Hall. As appears from defendant’s exhibits offered in evidence, other contracts were made and completed in 1915. We think it clear that no duty or obligation rested on the city in making or carrying out these subsequent contracts, to withhold any moneys from the contractors that might be earned thereafter, unless the city had actual notice of assignment from the contractors to the surety company. Suit was not begun on the claim of Hall until 1915, and the judgment of February 10, 1916, was affirmed in this court in 1917; so the liability of the city was not established, at the time the several amounts earned by the contractors became due and payable, and without notice of an assignment to the surety company, the city had no authority to withhold or retain any money due on such contracts after the completion thereof. We do not understand, from any authorities cited by appellant, that there was any obligation resting on the city to retain such money, arising out of other separate and distinct contracts, pending the establishment of a claim for negligence of the contractors.

We find no error in the record, and the judgment of the. circuit court is affirmed.

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


text:
    PEOPLE v. HENRY.
    1. Gaming — Ownership op Property Lost — Statutes.
    Section 7795, 2 Comp. Laws 1915, giving a right to the loser to recover money or property lost in a gambling game— among other actions that of replevin — recognizes the money or property as belonging to him.
    2. Criminal Law — Robbery — Larceny — Instructions — Elements op Crime — Intent.
    In a prosecution for robbery armed with a dangerous weapon, in violation of section 15206, 3 Comp. Laws 1915, where the defense was that defendant was only recovering money belonging to him lost in a crap game in a saloon, an instruction by the court,' without defining the crime of larceny, that the jury, if they did not believe ■defendant guilty of robbery, being armed with a dangerous weapon, and, if resisted, with intent to kill, might convict of larceny from the person if they believed him guilty of that beyond a reasonable doubt, was erroneous, since the element of felonious intent is- present in larceny the same as in robbery.
    3. ' Same.
    If defendant in good faith believed that the money which he demanded was his money, and that he was entitled to its possession, he could not be guilty of either robbery or larceny in taking it, because there would be no felonious intent.
    4. Same — Trial—Instructions—Intent.

      Held, that the question of felonious intent should have been submitted to the jury, under proper instructions as to both robbery and larceny.
    Error to the recorder’s court of Detroit; Jeffries, J.
    Submitted June 13, 1918.
    (Docket No. 69.)
    Decided July 18, 1918.
    Frank Henry was convicted of larceny, and sentenced to imprisonment for not less than 6 months nor more than 5 ^ears in the Detroit house of correction.
    Reversed.

      Proctor K. Owens and S. G. Thompson, for appellant.

      Alex. J. Groesbeck, Attorney General, Charles H. Jasnowski, Prosecuting Attorney, and De Witt Merriam, Assistant Prosecuting Attorney, for the people.
   Stone, J.

The defendant was convicted of the crime of larceny of $26 lawful money of the United States, from the person of one Samuel Harris, under an information charging robbery, being armed with a dangerous weapon, in violation of section 15206, 3 Comp. Laws 1915. Upon the trial the evidence was very conflicting. On the part of the people it was testified that about 12 o’clock midnight of July 29, 1917, the defendant entered the saloon of Harris in.the city of Detroit being armed with a revolver which he discharged into the ceiling in the presence of Harris, who testified:

“The defendant came up to me right away with his gun saying: ‘Give me the money or I will kill you.’ I was standing by the cash register behind the bar and he stuck the gun at me. He says ‘Give me money.’ I told him,' ‘Wait, I will give it right away.’ He said, ‘Come on, give me your money or I will kill you right away.’ He pointed the revolver at me, shaking it that way. • I was scared, to turn around, thinking he might shoot me in the back, so I said, ‘Come on behind, I will give it to you.’ I opened the register, grabbed whatever I could give and put it on the bar,” and that defendant took the money and went away.

On the part of the defendant it was testified that defendant went into the saloon of Harris earlier in the night and had been there induced by Harris to enter a gambling game called a “crap” game, then in progress in the saloon, in which he lost $27; that he asked Harris to restore the money, which he refused to do; whereupon he went to his home, a short distance from the saloon, but soon returned to the saloon with a revolver. The defendant testified:

“The first thing as I stepped up to the door I made a shot into the ceiling. I was careful not to shoot any one. Right after that I stuck the revolver in my coat pocket. When I entered the saloon, I had' no gun in my hand. There were some people scattered around the back side of the saloon. I said ‘Give me my money,’ to the saloon and to the fellows that robbed me. I said nothing to Harris. After the shot I saw him come from the back end, from around the barrels. Harris said to me, ‘Hey, there, what is the matter?’ I said, ‘These fellows got my money and I would like to have some .one restore it back.’ He said, T don’t want any of that thing around here; I will pay you, how much is it?’ I. said‘$27.00.’ And he went over to where the gamekeeper was sitting and brought me back $26.00. He said he didn’t want that disturbance at that time of night. I told him, ‘Thank you,’ and walked out. .* * * I went back there to get the money they robbed me of, and went home to get my gun.”

The court was requested by defendant’s counsel, among other things, to charge the jury as follows:

“5. I further charge you, gentlemen of the jury, that in considering all of the evidence in this case touching the matters involved, you will take into consideration all of the evidence in the case, and if you find, gentlemen of the jury, that the defendant only used that necessary force to repossess himself of his own property, which had been taken from him by crap game shooting in said saloon, then you cannot hold the defendant guilty of robbery as charged in the information.
“6. The Revised Statutes, chapter 156, of 1897 [2 Comp. Laws 1915, § 7795 et seq.], provides that any person obtaining money by card playing or shooting craps or shooting dice or any gambling device whatever, if the sum obtained by said playing is less than $25 the person obtaining said money is subject to a fine of $100 or to be confined in jail for three months, or both such fine and imprisonment; if the person playing such crap game receives more money from such gambling than said sum of $25, then, if convicted, he shall be subject to a fine of $500, or twelve months in the county jail, or both such fine and imprisonment-, in the discretion of the court. I further charge you, gentlemen of the jury, that this same statute which I have mentioned gives the loser of his money — which would be this defendant, if he lost his money in ■ said saloon and by that method of crap shooting and gaming — a right to recover the same in cases of assumpsit for money had and received, or in an action of trespass on the case, or by replevin for and on behalf of the plaintiff. Therefore, I charge you that if this money was obtained by gambling, as aforesaid, from the defendant, that the prosecuting witness or any one who was present shooting crap games in said saloon, could not acquire any title to said property, because it is in contravention of the law to play such games, and they never come into the legal possession of said money; if you find these facts to be true from the evidence, gentlemen of the jury, you must acquit the defendant, as he is not guilty of the charge as set up in the information.”

Neither of said requests was given. The trial court charged the jury in part as follows:

“I will charge you, if this defendant voluntarily went into what is known as a crap game and lost his money in that way and he came back and endeavored through violence and at the point of a revolver to secure his money back from Mr. Harris, I charge you, gentlemen of the jury, that under those circumstances that he would be guilty of robbery.
“It may be true, that if a man in, your presence is attempting to steal your property and attempting to carry it away, you have a right to defend yourself, and you have a right to overcome him, and you have a right to retake your property; there is no question about that, but after voluntarily surrendering your money or surrendering your property, and then the property is out of your possession, out of your sight, then, gentlemen of the jury, it is not your province or any man’s province, rather, to undertake to take the law into his own hands, and by force and violence to make a reparation of the wrong done to him. That is for the courts, that is for the legal channels in the peaceful, orderly administration of the law, rather than by any man taking it by violence into his own hands. * * *
“But if this defendant went in there, as under the theory of the people, and did what they said he did, that is the people’s witnesses, then, gentlemen of the jury, you should convict him, and if he went back there and did what the complainant, Harris, has said he did, that he came into the place and shot off the gun and pointed it at Harris, and secured the money which he had lost in a crap game, and attempted to take from Mr. Harris what he had previously lost in a crap game, then, gentlemen of the jury, he is guilty of the charge in the information. * * *
“But if he (the defendant) did lose the money at that crap game and then he went away and after-wards came back and held Mr. Harris up, as he described, laboring under the theory that he had lost his money in the previous cráp game, and resented it, and attempted to get it back, I say to you, gentlemen of the jury, under those circumstances, the defendant would be guilty of the charge in this information. * * *
“Now, this information contains the charge of robbery — being armed with a dangerous weapon with intent to kill if resisted. It also contains the charge of larceny from the person. If you do not believe the defendant guilty of robbery, being armed with a, dangerous weapon and if resisted with intent to kill, you may convict this defendant of larceny from the person, if you believe him guilty of that beyond a reasonable doubt. * * *
“This information contains also the charge of larceny. If you do not find the defendant guilty of the two offenses which I have just enumerated that are included in this information, beyond a reasonable doubt, then you may convict this defendant of larceny, if you believe him guilty of that beyond a reasonable doubt, gentlemen. If you find him guilty of that beyond a reasonable doubt, gentlemen of the jury, then fix the value of the property taken in your verdict.”

After conviction the defendant was sentenced to imprisonment in the Detroit house of correction for a term of not less than 6 months, nor more than 5 years. He has brought the case here on writ of error. Error is assigned upon the refusal to charge as requested above, and to that part of the charge above set forth.

As defendant was not convicted of robbery and was only convicted of larceny, it is suggested that if there was error in that part of the charge relating to robbery it was harmless error. But it should be borne in mind that, without defining the crime of' larceny, the jury were instructed that they might convict of larceny if they believed the defendant guilty of that crime, beyond a reasonable doubt. Yet the element of felonious intent is present in larceny, the same as in robbery. We are of the opinion that the foregoing request to charge should have been given. Our statute gives a right to the loser to recover the money or property lost in a gambling game — and among other actions gives that of replevin — thus recognizing the money or property as belonging to him. Hess v. Culver, 77 Mich. 598, 601; Lassen v. Karrer, 117 Mich. 512.

We are also of the opinion that there was prejudicial error in the charge. If the defendant in good faith believed that the money which he demanded was his money, and that he was entitled to its possession, he could not be guilty of either robbery or larceny in taking it, because there would be no felonious intent, “and if the defendant, for any reason whatever, indulged no such intent, the crime cannot have been committed.” People v. Walker, 38 Mich. 156; State v. Koerner, 8 N. D. 292 (78 N. W. 981).

A case very much in point is that of Thompson v. Commonwealth in the court of appeals of Kentucky, 18 S. W. 1022. The opinion being brief, we quote it:

“The appellapt was convicted of the crime of robbing J. R. Barnes. The money that the appellant is accused of robbing said Barnes of, was won by Barnes from appellant that evening at an unlawful game; and the appellant thereafter presented his pistol on Barnes, and compelled him to return him the money thus won. Under our' statute the title to the money won by Barnes did not pass to him, or from the appellant, nor did the right to its possession pass to Barnes, as against the appellant. It is a uniform rule that a person is not guilty of stealing that which belongs to him, and to which he has a right. Robbing is larceny, accompanied by violence, and putting the person from whom the property is taken in fear. Here the fact that the appellant was entitled to the money, and Barnes’ possession of it was not rightful, as against the appellant, stripped the appellant’s act of feloniously taking the property of another with the fraudulent intention of permanently depriving the owner of it.”

The judgment was reversed. To the same effect are the following cases: State v. Hollyway, 41 Iowa, 200; People v. Hall, 6 Parker’s Cr. R. (N. Y.) 642; Rex v. Hall, 3 Car. & Payne, 409.

The last cited case was an indictment for robbing John Green, a gamekeeper of Lord Ducie, of three hare wires and a pheasant. It appeared that the prisoner had set three wires in a field belonging to Lord Ducie, in one of which this pheasant was caught; and that Green, the gamekeeper, seeing, this, took up the wires and pheasant, and put them into his pocket; and it further appeared that the prisoner, soon after this, came up and said: “Have you got my wires?” The gamekeeper replied that he had, and a pheasant that was caught in one of them. The prisoner then asked the gamekeeper to give the pheasant and wires up to him, which the gamekeeper refused; whereupon the prisoner lifted up a large stick, and threatened to beat the gamekeeper’s brains out if he did not give them up. The gamekeeper fearing violence did so. Baron Vaughan said:

“I shall leave it to the jury to say whether the prisoner acted on an impression that the wires and pheasant were his property; for, however he might be liable to penalties for having them in his possession, yet, if the jury think that he took them under a bona fide impression that he was only getting back the possession of his own property, there is no animus furandi, and I am of opinion that the prosecution must fail.”

There was a verdict of not guilty.

In our opinion the question of felonious intent in the instant case should have been submitted to the jury, under appropriate instructions as to both robbery and larceny, along the lines above indicated.

We find no other reversible error in the record. For the errors pointed out the judgment is reversed and a new trial granted.

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


text:
    WHITMAN v. BRANSTROM.
    1. Attachment — Words and Phrases — Arrest—Contempt.
    A writ of attachment for the arrest of a person Is defined as a writ issued by a court of record, commanding the sheriff to bring before it a person who is charged with contempt of court.
    2. Same — Court Proceedings — Statutes.
    Act No. 379, Pub. Acts 1913 (3 Comp. Laws 1915, § 11443 et seq.), authorizing attachment to issue for the arrest of a person in default in making payments of alimony ordered by the court,, clearly contemplates a court action, requiring such attachment to be issued by the registrar in chancery, and requiring the officer to bring the party in default “immediately before the court to answer for such neglect.”
    3. Same — False Imprisonment — Nullity — Void Writ — Protection to Officer.
    An attachment signed by the circuit judge commanding the sheriff to arrest plaintiff and bring him before the judge at his office or chambers, not sealed with the seal of the court, not issued and signed by the clerk of the court, and ' not- subscribed or indorsed with the name of the attorney for the plaintiff in the divorce proceedings, was a nullity and void upon its face, and afforded no protection, in an action for false imprisonment against the sheriff and the attorney who procured the signature of the circuit judge to said instrument.
    Case-made from Muskegon; Vanderwerp, J.
    Submitted June 6, 1918.
    (Docket No. 51.)
    Decided July 18, 1918.
    Case by Willis E. Whitman against William J. Branstrom and others for false imprisonment. Judgment for defendants on a directed verdict. Plaintiff appeals.
    Reversed.

      John G. Anderson, for appellant.

      William J. Branstrom and Carpenter & Jackson (Charles B. Cross and Willard J. Turner, of counsel), for appellees.
   Stone, J.

This is an action on the case brought against the defendants- for alleged false imprisonment of the plaintiff by the defendants, under and by virtue of an instrument called an “attachment,” claimed by the plaintiff to be void on its face. Said instrument was in the words and figures following:

“State of Michigan — In the Circuit Court for the
County of Newaygo, In Chancery.
“In the name of the People of the State of Michigán, To the Sheriff of said County:
“Whereas, it satisfactorily appears to me by petition of Elizabeth Whitman, filed in a certain cause in said court, in which Elizabeth Whitman is plaintiff and Willis Whitman is defendant that the said Willis Whitman is now in default in the payment of temporary alimony and suit money which he was ordered by this court to pay said plaintiff by the terms of an order duly entered and filed in said cause, and
“Whereas, the said petition, as aforesaid, was filed by the said Elizabeth Whitman according to the provisions of Act No. 379, of the Public Acts of the State of Michigan, for the year 1913, the amount in default at this time is thirty-one dollars ($31.00).
“Now, therefore, you are commanded forthwith to arrest the said Willis Whitman and bring him before me at my office in the village of White Cloud, in said county, or at my office or chambers in the city of Big Eapids, county of Mecosta, State of Michigan (whichever place I may be at the time of the apprehension of the said Willis Whitman), without delay, to be dealt with according to law.”
“Dated, September 15, 1917.
“Joseph Barton,
“Circuit Judge.”

The plea was the general issue, with a notice thereto annexed that the defendants would give in evidence on the trial and insist in their defense that a divorce suit' was pending in the circuit court for the' county of Newaygo, in chancery, in which Elizabeth Whitman was plaintiff and Willis Whitman was*defendant; that on August 21, 1917, an order was made in said cause requiring said Willis Whitman to pay certain money to the said Elizabeth Whitman as temporary alimony and expenses; that on September 15, 1917, the circuit judge of said court made and executed the order or attachment above set forth; that said order or attachment was in proper form, and duly and legally issued by the said court, and that the sheriff of Newaygo county, in accordance with the mandate of said order or attachment, did arrest the said Willis Whitman and bring him before said court.

Upon the trial the plaintiff offered in evidence the said attachment, and gave evidence that he was arrested under and by virtue of said instrument on October 20, 1917, and was placed in the county jail of Muskegon county for a period of about two hours, and was then taken by defendant David Moote, sheriff of Newaygo county, to White Cloud, the county seat of Newaygo county, where he was detained in jail until October 23, 1917, when he was taken before the court, and after a hearing was discharged from arrest.

It was alleged and inferentially appeared that defendant William J. Branstrom procured the signature of the circuit judge to said instrument, that defendant0 Carl A. Stauffer was the sheriff of Muskegon county and the keeper of the jail of that county, where plaintiff was imprisoned as aforesaid.

Evidence was also introduced showing the proceedings taken in the divorce suit of Elizabeth Whitman v. Willis Whitman, in the circuit court for the county of Newaygo, in chancery, whereby it was made to appear that said court had jurisdiction of said cause and of the parties thereto, and that all of the proceedings had therein anterior to the issuing of said attachment or order, were regular and in conformity to law.

At the close of the plaintiff’s case, counsel for defendants moved the court to direct a verdict of not guilty, for the reason that the circuit judge had authority to issue said attachment; that it was in proper form, fair on its face, and protected the officer making the arrest, and those acting with him. This motion was granted, apparently upon the authority of Thomas v. Rosecrantz, 193 Mich. 357, and the authorities there cited, and a verdict and judgment were rendered for the defendants.

The plaintiff is here upon a case-made, and under appropriate assignments of error he urges that the so-called attachment was a nullity and void upon its face, was no protection to the defendants and that the court erred in directing a verdict and judgment for the defendants.

Act No. 379, Pub. Acts 1913 (3 Comp. Laws 1915, § 11443 et seq.), should be carefully examined. It is entitled “An act to facilitate the collection of temporary and permanent alimony ordered to be paid in suits for divorce.” It should be said that the constitutionality of this act is not here questioned or involved. Sections 2 and 4 of the act are as follows:

“Sec. 2. When any decree or order shall have been made for the payment of temporary or permanent alimony to be paid in certain stipulated payments directed to be made in said order to the register of the court, and any of such payments shall be in default, the party prejudiced thereby may make a motion before the court making such order showing by the records in the register’s office that such default has been made, and thereupon the court shall forthwith issue an attachment to arrest such party in default and bring him immediately before the court to answer for such neglect.”
“Sec. 4. When said attachment shall be issued it shall be executed by the sheriff of the county, or by any officer authorized to make such arrest, who shall arrest the party named therein and keep him in actual custody and bring him forthwith before the court issuing such attachment, and shall keep and detain bim until the court shall make some further order in the premises.”

By the provisions of section 5 of the act it is clear that the register in chancery is required to issue the attachment.

Section 12405, 3 Comp. Laws 1915, provides:

“The style of all process from courts of record at law or in chancery in this State shall be Tn the name of the people of the State of Michigan,’ and such process shall be tested in the name of the chief justice, or presiding justice or judge, or one of the judges of th"e court from which the same shall issue, be sealed with the seal of the court, and signed by the clerk thereof, and before the delivery thereof to any officer to be executed shall be subscribed or indorsed with the name of the attorney- for the plaintiff.” * * *

A writ of attachment for the arrest of a person, is defined by Blackstone, and by numerous courts, as# a writ issued by the court of records, commanding the sheriff to bring before it a person who is charged with contempt of court.

An examination of section 2 of the act of 1913, shows that it is the court, and not the circuit judge that issues the attachment, and the statute required the officer to bring the party in default “immediately before .the court to answer for such neglect,” and not before the circuit judge at his office or chambers.

It is apparent that this whole proceeding is a court proceeding, and not a matter that could be initiated, or heard before the circuit judge. The statute contemplates that the party is not yet in contempt, and could not be, under our statutes and decisions, until he had had a hearing in court.

Was this so-called process fair on its face? The following excerpt from Cooley on Torts (2d Ed.), p. 538, will, we think, answer that question in the negative:

“The process that shall protect an officer must, to use the customary legal expression, be fair on its face. By this is- not meant that it shall appear to be perfectly regular, and in all respects in accord with proper practice, and after the most approved form; but what is intended is, that it shall apparently be process lawfully issued, and such as the officer might lawfully serve. More precisely, that process may be said to be fair on its face which proceeds from a court, magistrate, or body having authority of law to issue process of that nature, and which is in legal form, and on its face contains nothing to notify or fairly appraise the officer that it is issued without authority. When such appears to be the process, the officer is protected in making service, and he is not concerned with any illegalities that may exist back of it.”

Judge Cooley gives illustrative instances of process not fair on its face; and, among others, at page 544 appears the following:

. “Process of contempt issued by a judge of a court when only the court as a body had authority to issue it.” Citing Van Sandau v. Turner, 6 Q. B. 773.

In the instant case the so-called attachment was not tested in the name of the judge. It was not sealed with the seal of the court. It was not issued and signed by the clerk of the court, and it was not subscribed or indorsed with the name of the attorney for the plaintiff. In fact it does not show on its face that it was issued from, or by authority, of any court.

As was said upon a like subject in State, ex rel. Hansen, v. Carrico, 86 Neb. 448 (125 N. W. 1110), in a mandamus case, “An examination of the process issued in this case shows that every provision of these sections has been violated, or, to say the least, ignored,” and the whole proceeding was held void. If that could be said in a mandamus case, how much more should it be said where a party has béen arrested and imprisoned under such a process. We are satisfied that there is nothing in Act No. 379, Pub. Acts 1913, giving the circuit judge any power or authority to issue an attachment, or to make any such order in the chancery case. The action contemplated by the statute is court action, from beginning to end.

We are constrained to say that the so-called attachment in the instant case, was a nullity, and was no protection to the defendants. In our opinion the case of Thomas v. Rosecrantz, supra, is clearly distinguished, and is not at all controlling here.

The judgment of the circuit court is reversed and a new trial granted, with costs to the appellant.

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