author: Montgomery, O. J.

text:
    SALTER v. SUTHERLAND.
    1. Judgments — Affirmance on Appeal — Subsequent Correction.
    Where a judgment on the merits in favor of defendant in replevin was affirmed by the Supreme Court on the sole ground that plaintiff did not have any right of property in the subject of the action, and it was subsequently discovered that the judgment failed to adjudge to defendant any recovery of the property or its value, the trial court was not precluded by such affirmance from amending the judgment so as to authorize such recovery, on motion made by leave of the Supreme Court.
    2. Same — Replevin—Title to Support Judgment.
    Where property was replevied from defendant’s possession by a stranger to the title, defendant was entitled,'on verdict in his favor, to a judgment for its return or for the value, even though he might be accountable for the property to the true owner.
    3. Same — Amendment—Sufficiency of Record.
    Property was replevied from defendant’s possession by a stranger to the title, and defendant had a verdict, which also found the value of the property. Judgment was entered, which by mistake failed to adjudge recovery of the property or its value. There was no finding of any lien or special property in either party. Held, that the record showed sufficient to justify an amendment of the judgment giving a recovery for such value.
    4. Same — Granting of Motion — Conditions.
    Defendant’s motion in the Supreme Court, after affirmance of judgment in his favor, for leave to move in the circuit for an amendment of the judgment entry, was granted only on condition that he consent that plaintiff might have a hearing on an application for a new trial as of the term in which judgment was entered.
    Replevin by Marvin R. Salter, administrator of the estate of Julia E. Sutherland, deceased, against Daniel M. Sutherland. A judgment for defendant was affirmed March 6, 1900 (123 Mich. 225).

      On defendant’s motion for leave to move the circuit court for a modification of the judgment entry.
    Submitted November 13, 1900.
    Granted February 12, 1901.

      Searl & Kress, for the motion.

      John T. Mathews (Oahill & Wood, of counsel), contra.

   Montgomery, O. J.

One Marvin R. Salter, as administrator of the estate of Julia E. Sutherland, brought an action of replevin in the circuit court for Gratiot county against the defendant. The case was tried in that court, 'and on the 3d day of February, 1899, a verdict was rendered in favor of the defendant and against the plaintiff. The journal entry of verdict and judgment, as appears upon the record, reads as follows:

“ That the said defendant did not unlawfully detain the goods and chattels mentioned in manner and form as the said plaintiff hath in his declaration in this cause alleged, and assesses the value of the goods and chattels aforesaid at the sum of three thousand one hundred and eighteen and 47-100 dollars ($3,118.47). Therefore, on motion of George P. Stone, attorney for the said defendant, it is ordered and adjudged by the court now here that the said defendant do recover against the said plaintiff his costs and charges by him about his defense in this behalf expended to be taxed, and that the said defendant have execution therefor.”

The plaintiff removed the case to this court by writ of error, and the judgment was affirmed on the 6th day of March, 1900. The opinion is reported in 123 Mich. 225 (81 N. W. 1070).

On the 15th of March, 1900, the defendant discovered, as he claimed, that the verdict and judgment was not complete, and moved the circuit court for an amendment of the same, which amendment was allowed. On the 13th of June, 1900, the plaintiff applied to this court, and secured an order, directed to the circuit judge, requiring him to show cause why he should not vacate the order permitting the amendment. Before this order was returnable, the circuit judge, on his own motion, vacated the order, assigning as a reason therefor that the better practice required that leave should first be obtained from this court to make said motion. Acting on this suggestion, this application for leave is now presented.

It is contended that a judgment affirmed by this court cannot be altered in the lower court in any material matter ; citing Fifth Nat. Bank of Grand Rapids v. Clinton Circuit Judge, 100 Mich. 67 (58 N. W. 648). It is undoubtedly true that the circuit court has no power to modify in any material respect a judgment in any manner inconsistent with the decision of this court; but in the present case it appears that the error was not discovered until after the decision of this court, and that no point decided in the case by this court turned on the form of the verdict or judgment. The sole question presented in the case for our decision was whether Mr. Salter had such a right of property as entitled him to maintain replevin.

It is next contended that the defendant is not entitled to the judgment which he now seeks to have entered for the value of the property, and that there is not enough on the record to show him entitled to the amendment claimed. These two questions are closely related. It is undoubtedly the general rule that, where property is taken from the possession of the defendant under a writ, he is entitled to judgment for return; his possession, if lawful as against the plaintiff, being sufficient to support this right. Steere v. Vanderberg, 90 Mich. 187 (51 N. W. 205); Simmons v. Robinson, 101 Mich. 240 (59 N. W. 623); Davidson v. Gunsolly, 1 Mich. 388; Whitney v. Hyde, 91 Mich. 13 (51 N. W. 696). In the case last cited it was said:

“When the defendant is in lawful possession of the property, and the plaintiff is a stranger to the title, he cannot complain of the verdict for its value in favor of the defendant. The defendant may be accountable to the true owner, but is, in the first instance, even though a mere bailee, entitled to the return of the property, or its value, if return is waived.”

It is true there are exceptions to this rule, where one party or the other has a lien upon, or a special property in, the goods, and it is also true that if the plaintiff himself is shown to be the owner, or if the case fails against the defendant because he was not in possession, judgment for return or value should not be entered; but heither of these circumstances appears here.

Is there enough to amend from in the record? We think there is. The files show a replevin of the property from the defendant. The finding of the jury shows the value of the property. There is no finding, under section 10675, 3 Comp. Laws 1897, of any lien or special property in either party. We think leave to move the court to amend should be granted.

It has been suggested that justice requires that, if this order be made, the order should also give the circuit judge the right to set aside the judgment and grant a new. trial. As the plaintiff in the action is not responsible for the delay in the proceedings, we think it should be made a condition to the relief prayed here that defendant consent to hearing an application for a new trial as of the term in which judgment was entered.

No costs will be awarded to either party upon this application.

The other Justices concurred.


source: Caselaw Access Project

author: Long, J.

license: Public Domain

text:
    SMELSER v. BOARD OF SCHOOL INSPECTORS OF TOWNSHIP OF BIG PRAIRIE.
    1. Schools and Sohool Districts — Creating New District-Notice — Board of Inspectors — Return to Certiorari.
    Where a board of sohool inspectors, by a vote of two for and one against, created a new school district, which action is sought to be reviewed on certiorari, the return of the clerk and one inspector that due notice was given, and that proof of posting the notices was on file with the clerk when the action was taken, must be taken as the return of the board, though contradicted by a separate return of the third member.

      2. Same.
    The facts in regard to the notices and proof of posting are sufficiently established if set out in the return of the board, though not appearing in the clerk’s minutes of the proceedings.
    3. Same — Procedure.
    The action of school inspectors in detaching territory from two school districts and forming a new district by one and the same motion, after parties interested have had ample opportunity to be heard on both questions, is valid.
    Error to Newaygo; Palmer, J.
    Submitted November 13, 1900.

      Decided February 12, 1901.

      Certiorari by Joseph Smelser and others to review the action of the board of school inspectors of the township of Big Prairie in creating a school district. From an order quashing the proceedings, respondent brings error.
    Reversed.

      John Harwood (George Luton, of counsel), for appellant.

      Joseph Barton, for appellees.
   Long, J.

On November 16, 1899, 32 taxpayers of school districts Nos. 3 and 3 of the township of Big Prairie presented a petition to the board of school inspectors of said township, asking them to alter and change the boundaries of said districts so as to make three districts, to be numbered 2, 3, and 4. The board met in pursuance of a notice given, and granted the prayer of the petition. The action of the board was removed to the circuit court of Newaygo county by writ of certiorari, where the proceedings of the board were quashed.- The case comes into this court by writ of error.

All that appears from the records of the school inspectors is as follows:

“Minutes of the meeting of board of school inspectors of the township of Big Prairie, county of Newaygo, State of Michigan:
“ Board met at the clerk’s office pursuant to call. Present: John E. Webster, William S. Utley, school inspectors, and Charles P. Duston, township clerk. The chairman read a petition to detach the following sections and parts of sections from school district No. 2, to wit: Section 20; east half of section 19; also northeast quarter of northeast quarter of section 29; also northwest quarter of northwest quarter, and also east- half of the northwest quarter, also southwest quarter of northeast quarter, also lots Nos. 5 and 6 of section 28; all of section 21 on west side of Muskegon river, except lot No. 1; also lots Nos. 7 and 8 of section 22; also lot No. 3 of section 27, — all of school district'No. 2, be joined with the west half of section 16, and all of section 17 except the northwest quarter of the northeast quarter, the north half of the northwest quarter, and sixteen acres on the west side of the southwest quarter of the northwest quarter, of school district No. 3, to form school district No. 4; and the ballot, being taken, resulted as follows: Two in favor of granting the prayer of petitioners, and one against, and it was declared carried.”

The record does not show the grounds upon which the circuit judge vacated the order made by the school inspectors. The affidavit upon which the writ of certiorari was issued in the court below sets up the petition made to the school inspectors, and the action of the board thereon, and assigns as error:

1. That there is nothing in the record to show the posting of the notices required by law to give authority for holding such meeting. „
2. That there is nothing in the record to show the proof of posting said-notices prior to said action of said board.
3. That the action of said board of school inspectors in undertaking to detach from one or more districts and adding to or combining to form another district, being done by one and the same motion or resolution, is void.
4. That there is nothing in the record to show the consideration of a certain remonstrance signed by residents and freeholders of said districts, and filed with said board prior to said action.
5. That said action of said board was prejudiced, and, by reason of such prejudice, was wrong, and not for the best interests of said district or districts.

In the return made by the board it is certified by the clerk that on the 20th day of November he posted up three notices in three public places in the township of Big Prairie. The affidavit for the writ of certiorari sets out the notice for the meeting of the board, in which it is stated that on the 2d day of December, 1899, at the hour of 2 o’clock in the afternoon, the board of school inspectors would meet at the office of the township clerk for the purpose of considering a petition, signed by Mary French and 31 other resident taxpayers, to detach from school districts Nos. 2 and 3 certain territory therein named, to form school district No. 4. The affidavit of the township clerk also states that he posted one of these notices on the school door of district No. 2, and one on the school door of district No. 3; and the return shows that he posted one on the post-office door, which was situate within the boundaries of school district No. 4 as formed at said meeting. The clerk of the board and Mr. Webster, one of the school inspectors, make return that they know of the posting of the notices, and that proof of posting said notices was on file in the clerk’s office at the time of said meeting of the board of inspectors when it was in session on December 2, 1899. Mr. Utley makes another return, under oath, that the return of the other two inspectors is untrue, in stating that the notices and proof of posting the same were before the board at its meeting. He states further that there was no notice or copy thereof, nor proof of posting, before the board at the time of the meeting, of which he (Utley) had any knowledge.

The return of one inspector and the township clerk we think must be taken as the return of the board.. It is apparent that Mr. Utley refused to vote with the other two on the action taken, but voted against the formation of the new district. Taking the return of one inspector and the township clerk as true, it appears that, at the time of the meeting held on December 2d, the notice had been given, and that due proof of posting of the same, as required by the statute, was on file in the clerk’s office. This was the 10-days notice the statute requires (2 Comp. Laws 1897, § 4653) which provides that:

“Whenever the board of school inspectors shall corn template an alteration of the boundaries of a district, the township clerk * * * shall give at least ten days’ notice of the time and place of the meeting of the inspectors, and the alteration proposed, by posting such notice in three public places in the township, * * * one of which notices shall be in each of the districts that may be affected by such alteration,” etc.

According to the return of the clerk and inspector Webster, this statute was complied with. The first and second objections of relators, therefore, have no force.

The third objection, that the rights of the parties were injuriously affected by the detaching of territory from each of these districts and the formation of the fourth by one and the same motion, cannot be sustained. A remonstrance had been presented by a large number of taxpayers of the two districts. The persons remonstrating had an opportunity to be heard upon both the detaching of territory and the formation of the new district. . A somewhat similar question was raised in Doxey v. School Inspectors, 67 Mich. 601 (35 N. W. 170). In that case the board of school inspectors met under one notice and at one meeting, but by separate action detached lands from separate school districts and attached them to another district. It was said by the court:

“In-relation to this last objection, it appears that the board voted separately upon the question of detaching the territory from each district, and those present had ample opportunity of being heard upon each proposition. There was no such connection between the two hearings, or the action upon the proposed detachments of territory, as to lead to any confusion or prejudice to the rights of those interested.”

In the present case the proceedings were declared carried in one motion, but we are unable to see how this in any way prevented the parties from being heard on both questions.

The fifth objection has no force.

The order made by the circuit judge setting aside the proceedings of the inspectors must be reversed.

The other Justices concurred.


author: Per Curiam.

text:
    FREUD v. SAGINAW CIRCUIT JUDGE.
    Mandamus —When Lies — Garnishment — Dismissing Proceedings.

      Mandamus will not lie to compel the dismissal of garnishment proceedings on account of an alleged defective service in the original suit.

      Mandamus by Julius Freud to compel Byron A. Snow, circuit judge of Saginaw county, to dismiss certain garnishment proceedings.
    Submitted December 4, 1900.
    Writ denied February 12, 1901.

      Humphrey & Grant, for relator.

      John F. O’Keefe, for respondent.
   Per Curiam.

The writ must be denied on the ground that mandamus is not the proper remedy. Mardian v. Wayne Circuit Judge, 118 Mich. 353 (76 N. W. 497), and cases cited; St. Clair Tunnel Co. v. St. Clair Circuit Judge, 114 Mich. 417 (72 N. W. 249); City of Detroit v. Wayne Circuit Judge, ante, 634 (85 N. W. 1). See, also, the following unreported cases: Lee v. Wayne Circuit Judge, Schellenberg v. Wayne Circuit Judge, Township Board of St. Clair v. St. Clair Circuit Judge, and Eisenhardt v. Kent Circuit Judge.


author: Grant, J.

text:
    JOHNSON v. JOHNSON.
    Husband and Wife — Separation—Household Goods.

      A wife, on leaving her home for alleged misconduct on the part of her husband, cannot take from the homestead household goods without his consent. The court of chancery alone has jurisdiction to determine, in a divorce case, how much of the husband’s property should be decreed to the wife.
    Error .to Eaton; Smith, J.
    Submitted December 6, 1900.
    Decided February 12, 1901.
    Replevin by Peter R. Johnson against Lucy M. Johnson, Marion Porter, and Mildred Porter. From a judgment for defendants, plaintiff brings error.
    Reversed.
    Plaintiff and defendant Lucy are husband and wife. Both had been married before. She had several children by her former marriage. He had none. At the time of the trial, he was 79 years old, and she 64. When the difficulty arose between them, they had been married and lived together 8 years. The defendant Mildred Porter is the daughter of defendant by her former marriage. Defendant Marion Porter is her husband.

      At the time they separated, she took with her some of the household goods. In removing the goods she was assisted by the other defendants. Plaintiff brought this action of replevin to recover the goods. The theory of the plaintiff is-that the wife, on separating from her husband, cannot take any of the household goods from his home. The theory of the defendants is that the plaintiff’s wife was driven from his home by such cruel conduct and the use of such vile language that it was not safe for her to remain longer with him, and that his acts in driving her from him amounted to desertion on his part. The case was submitted to the jury on the latter theory, who found a verdict for the defendants. Plaintiff admits having used towards her vile and opprobrious epithets. The testimony on the part of the defendants, if believed by the jury, supports the conclusion that she was justified in leaving him, that it was not safe for her to longer remain, and that he told her to take her things and depart. It is not necessary to state the testimony in detail.

      W. A. Ooutts and Garry O. Fox, for appellant.

      J. M. C. Smith and Powers & Stine, for appellees.

       Head-note by Grant, J.

   Grant, J.

(after stating the facts). The question presented is, Can a husband maintain replevin against his wife for goods taken by her from his home, where his treatment was such as to justify her leaving him, and would amount to desertion on his part ? It was decided in Smith v. Smith, 52 Mich. 538 (18 N. W. 347), that the husband cannot maintain replevin for such goods when he has abandoned his wife. In Warner v. Warner, 54 Mich. 492 (20 N. W. 557), it was held that, under circumstances similar to those in the present case, the husband, and not the wife, was guilty of desertion. These cases, however, do not touch the question now presented. The court of chancery alone has jurisdiction in divorce cases, and the determination of how much of the husband’s property shall, upon a divorce obtained by the wife, be decreed to her. She cannot, on leaving the home for alleged misconduct on his part, take from the homestead the household goods, without the consent of her husband. There was evidence tending to show that plaintiif gave permission to his wife to take away the property. If this was so, she was rightly in possession, and he could not maintain replevin for it, at least without demand.

Judgment reversed, and new trial ordered.

The other Justices concurred.