text:
    WYKOFF v. WINISKY.
    1. Trial — Conduct of Trial Judge — Contempt—Prejudice.
    Colloquy between trial court and defendant appearing in propria persona in which trial eourt threatened contempt proceedings against defendant if he persisted in his improper remarks after he implied trial court had “unclean hands” held, neither prejudicial to defendants nor error.
    2. Attorney and Client — Withdrawal of Counsel — Notice.
    Trial eourt order permitting withdrawal of counsel should not be entered without notice to counsel’s client.
    3. Same — Withdrawal op Counsel — Notice.
    A client should be given notice before order permitting withdrawal of counsel is entered by trial eourt, but where the withdrawal causes no injury or prejudice to the client, it is not reversible error to permit withdrawal without notice especially when at pretrial conference the client indicates he intends to represent himself.
    References por Points in Headnotes
    [1] 30 Am Jur, Judges § 174; 53 Am Jur, Trial §§ 74, 76, 79, 88, 90.
    [2, 3] 7 Am Jur 2d, Attorneys at Law § 145.
    [4] 53 Am Jur, Trial §§ 25-27, 453.
    Right of litigant in civil action either to assistance of counsel where appearing pro se or to assist counsel where represented. 67 ALR2d 1102.
    [5] 53 Am Jur, Trial §§ 14r-18.
    [6] 53 Am Jur, Trial §§ 15, 17, 25-27.

      4. Same — Assistance op Counsel — Trial Without Counsel.
    The right to have representation by counsel contemplates the allowance of a reasonable opportunity to obtain counsel, but if a litigant does not choose to exercise that right, he can be forced to proceed to trial without counsel.
    5. Trial — Preparation—Delay—Good Faith.
    A trial need not come to a halt and remain halted until a litigant decides that he is ready to permit the trial to proceed when the record establishes a substantial basis for challenging the litigant’s good faith in preparing for trial.
    6. Same — Continuance — Discretion op Court — Assistance op Counsel.
    Trial court’s denial of defendants’ motion for adjournment because defendants were not represented by counsel held, not an abuse of discretion, where history of case convinced trial court that defendants had not aeted with reasonable diligence in obtaining counsel and did not intend to retain counsel for the purpose of preparing their defense and proceeding' to trial, and ease was adjourned 3 times and 2 attorneys asked to be relieved because of inability to get along with defendants.
    Appeal from Livingston; Garland (Michael), .J.
    Submitted Division 2 May 1, 1967, at Lansing.
    (Docket No. 2,065.)
    Decided March 21, 1968.
    Rehearing denied May 31, 1968.
    Leave to appeal .denied August 12, 1968.
    See 381 Mich 770.
    Complaint by Darwin Wykoff against Alex Winisky and Hilda Winisky for breach of contract. Judgment for plaintiff. Defendants appeal.
    Affirmed.

      Brucher $ Brucher, for plaintiff.

      Ingle & Burhe, for defendants.
   Levin, J.

The question is whether the trial court abused its discretion in directing the trial of this action to proceed at a time when defendants were not represented by counsel.

Complaint was filed on May 15, 1963, alleging* that pursuant to an agreement on December 26, 1961, the plaintiff bad provided defendants with a drag-line crane and dragline mats for defendants’ use and that the defendants bad not paid the agreed price of $4,594.52.

Defendants retained counsel who entered an appearance and filed an answer and counterclaim in defendants’ behalf. The answer admitted defendant Alex "Winisky had rented the crane and mats from the plaintiff, but denied that defendant Hilda Winisky was liable. The counterclaim of $2,145.22 was for materials furnished, labor performed, and the rental on property leased by defendants to plaintiff.

Plaintiff’s reply denied the material allegations of the counterclaim, referring to the opinion of the Supreme Court of Michigan in McCluskey v. Winisky (1964), 373 Mich 315, and admitted a nominal debt to the defendants on their counterclaim.

On August 18, 1965, defendants’ counsel filed an affidavit in support of a petition to withdraw as defendants’ counsel. Therein he stated that scheduled pretrial conferences had been adjourned upon agreement of both parties, that efforts to settle the dispute had been unavailing, that Alex Winisky had been unresponsive to communications from his counsel, and that on July 8,1965, Alex Winisky wrote to his counsel as follows: “Because of indifference we have filed a grievance with the State Bar against you. Please return our files.”

Without notice to the Winiskys of the petition to withdraw, an order authorizing withdrawal was entered, the order providing that upon payment to former counsel of his attorney fees, costs, and expenses such counsel should turn over to the Winiskys “their court file”.

The Winiskys were informed of the entry of the order, and that a pretrial conference would be held on September 15, 1965. Mr. Winisky appeared for himself at the pretrial conference. The pretrial order stated plaintiff’s claim that the Winiskys denied any indebtedness to plaintiff and had filed a counterclaim seeking $2,145.22, and that plaintiff admitted liability of approximately $200 on the counterclaim.

On December 14, 1965, the court sent a notice to the Winiskys designating January 10, 1966, the date for trial. The Winiskys approached new counsel on or about December 28, 1965, and the first conference with new counsel was held on December 31, 1965. New counsel was retained on January 3,1966, and, on the following day, they advised the trial judge that they would be prepared to proceed on the date set for trial. Two days later, there was a further conference, lasting most of that day, between the new counsel and Mr. and Mrs. Winisky.

On Friday, Mr. Winisky telephoned the judge to request an adjournment, advising him that in his, Mr. Winisky’s, opinion, the new counsel were not prepared. The judge replied that such a request would have to come from the Winiskys’ counsel. Mr. Winisky telephoned his counsel and requested they communicate with the judge, which counsel unsuccessfully tried to do.

On Monday, January 10, 1966, the Winiskys’ counsel appeared with Mr. Winisky in court and stated that Mr. Winisky had instructed them on Friday to discontinue any further work until after they had talked to the judge. Mr. Winisky denied giving-such instructions. Counsel indicated they were not prepared for trial, and they doubted whether Mr. Winisky desired them to represent him. After further colloquy, there was a recess. Upon reconvening, the Winiskys’ counsel advised the court the Winiskys were satisfied for their new counsel to continue to represent them and requested a 1-day adjournment of the trial. The adjournment was granted on the condition there be no further requests for adjournment.

The .following, day (January 11, 1966) the Winiskys’ counsel indicated differences of opinion between them and the Winiskys had arisen as to the conduct of the trial, making it impossible for such counsel to continue to represent the Winiskys, and requested permission to withdraw. Mr. Winisky confirmed his dissatisfaction with his counsel, stated he did not believe he could have a fair trial before the trial judge, and requested a continuance. Mr. Winisky added that his first counsel had not yet returned the file and, under all the circumstances, he did not believe he could put in a proper defense. Mr. Winisky also stated at various times that some of his files were in the hands of plaintiff’s attorneys, that plaintiff’s attorneys had previously represented him, that he desired a possible “conflict of interest” be investigated by the State Bar, and that he wanted to talk with an officer of the Supreme Court.

The trial judge responded that at “every opportunity that he [Mr. Winisky] has had to speak before the court either yesterday or today, he has implied that somebody was not being honest. * * * I can have no assurance that further adjournment would be of benefit to anyone. For that reason the motion to adjourn is denied, and we will now proceed to trial.” The Winiskys’ counsel was permitted to withdraw and the trial proceeded, the Winiskys not being represented by counsel. The plaintiff presented his proof; the Winiskys offered no proofs, and judgment was entered for the plaintiff for $4,-418.92, the sum of $175.63 on the counterclaim having been admitted by plaintiff. The Winiskys’ motion for new trial was denied on March 8,1966.

On appeal the Winiskys refer to a colloquy between Mr. Winisky and the court on January 11, 1966, in connection with Mr. Winisky’s request for a further adjournment and after both Mr. Winisky and his counsel had indicated Mr. Winisky’s dissatisfaction with his counsel. Mr. Winisky argues the colloquy shows that, in threatening to punish him for contempt, the court acted excessively. We perceive neither prejudice to the Winiskys nor trial court error in the remarks of the court.

The order permitting the withdrawal of the Winiskys’ first counsel should not have been entered without notice to the Winiskys. However, it is not claimed that such withdrawal did not conform to the Winiskys’ wishes in the matter or that the entry of such order caused any injury or prejudice to the Winiskys. Mr. Winisky attended the September 15, 1965, pretrial conference and it appears (see footnote 1) that he then indicated an intention to represent himself throughout the proceedings.

The Winiskys made no efforts between September 15,1965, and December 28,1965, to engage substitute counsel. The Winiskys had ample time between entry of the order permitting first counsel to withdraw and the time of trial to seek return of their file and, if needed, the court’s aid in effectuating such return upon payment to former counsel of the amount ascertained by the court to be due.

It appears the Winiskys’ new counsel may not have been prepared for trial either because, as such counsel claimed, Mr. Winisky instructed them on the Friday preceding the Monday trial date not to do anything further, or because there wasn’t adequate time for preparation in the one week between the time they were engaged (January 3, 1966) and the date set for trial (January 10,1966), or because they lacked the Winiskys’ papers that were still in the hands of the first-engaged counsel. Mr. Winisky also claims new counsel failed to follow his instructions on the conduct of the proceedings. All these matters could have been resolved, however, had Mr. Winisky acted timely in engaging counsel.

We have no doubt that, as his appellate counsel observes, Mr. Winisky was unable to cope with being required to proceed to trial without counsel. However, the Winiskys had ample time to obtain counsel. Compare Baird v. Baird (1962), 368 Mich 536, 539. The trial judge had a substantial basis for concluding, and so did not abuse his discretion in concluding, that the Winiskys did not act with reasonable diligence in obtaining counsel and did not intend to retain counsel for the purpose of preparing their defense and proceeding to trial. The right to representation by counsel contemplates the allowance of a reasonable opportunity to obtain counsel. Grevnin v. Grevnin (1946) 315 Mich 519, 524. If a litigant does not choose to exercise that right, he can be forced to proceed to trial without counsel. Had the Winiskys acted with reasonable diligence in obtaining counsel in whom they had confidence, they could have properly filed whatever motions might have appeared to be in their best interest; and the basis, if any, for the assertion that because of a conflict of interest plaintiff’s counsel should not be permitted to represent plaintiff in proceedings against the Winiskys could have been presented with clarity.

The Winiskys did not act with reasonable diligence, and their neglect exposed them to that which occurred after a last-minute engagement of counsel: a hurried-up effort to prepare for trial, differences of opinion between Mr. Winisky and his new counsel, unavailability of the file and obscurity as to the conflict-of-interest claim.

We do not suggest that if a litigant acts with reasonable diligence in retaining counsel, and then, on the eve of trial, unexpected differences of opinion require retained counsel to withdraw with the court’s permission, that the court may require a litigant who has acted in good faith to proceed to trial without affording him a reasonable opportunity to obtain substitute counsel. See Percy v. Percy (1924), 227 Mich 407. That, however, is not the case here. The trial judge concluded on the basis of substantial evidence that the Winiskys did not act with reasonable diligence, and the differences of opinion which arose, far from being unexpected, were precisely what might have been anticipated based upon the history of the litigation. A litigant is not wedded to his lawyer, but, when the record establishes a substantial basis for challenging a litigant’s good faith in preparing for trial, all need not come to a dead halt until that litigant decides that he is ready to permit the trial to proceed. Compare Harms v. Simkin (1959, Mo App) 322 SW2d 930, 934.

In People v. Stinson (1967), 6 Mich App 648, 654, this Court concluded that there was not an abuse of discretion in denying a request for a continuance of the date set for trial to allow a defendant further time within which to retain counsel of his own choosing where the defendant was represented by assigned counsel. The defendant had over 3 months to retain counsel but made no effort to do so, and there was no showing that he would bo able to do so. See also Ungar v. Sarafite (1964), 376 US 575 (84 S Ct 841, 11 L ed 921, rehearing denied 377 US 925, 84 S Ct 1218, 12 L ed 217), where the Court ruled there had been neither a denial of due process nor an abuse of discretion in refusing a continuance to one charged with contempt of court who had less than five full days’ notice of the time set for hearing and waited until the very day of hearing to retain counsel. The Court observed (p 591) :

“These matters are, of course, arguable, and other judges in other courts might well grant a continuance in these circumstances. But the fact that something is arguable does not make it unconstitutional. Given the deference necessarily due a state trial judge in regard to the denial or granting of continuances, we cannot say these denials denied Ungar dne process of law.”

Affirmed. Costs to appellees.

T. Gr. Kavanagh, P. J.; and Sullivan, J., concurred.

       At the time of tidal, the trial judge stated that at the pretrial conference Mr. Winisky indicated he intended to represent himself throughout the proceedings.

        “Mr. Winisky: That you’re — that all these files are proper in the hands of the plaintiff’s attorneys, and it is proper for the court to proceed with, with unclean hands, is this what you are honoring, Your Honor?

        “The Court: Mr. Winisky, will you apologize to the court?

        “Mr. Winisky: I will. I am sorry.

        “The Court: Are you implying that this court is proceeding with unclean hands?

        “Mr. Winisky: No, sir. I — •

        “The Court: All right.

        “Mr. Winisky: lam — I am just confused, Your Honor. Yes.

        “The Court: You are confused.

        “Mr. Winisky: I apologize for anything I said, because — I have no — ■

        “The Court: You are confused, and if I hear any more remarks from you in regard to that situation, insofar as this court is concerned, I’ll unconfuse you. We’ll proceed to find you in contempt,

        “Mr. Winisky: I am sorry, Your Honor.

        “The. Court: We will now uroeoed to trial.”

       We are advised by the Winiskys’ appellate counsel that on March 25, 1966, they obtained the file without the assistance of the oourt upon payment of $70.67 in costs and expenses.

       Compare United States v. Johnston (CA 6, 1963), 318 F2d 288, where defendant’s retained counsel told the defendant on the Friday preeeding the Tuesday trial date that he would be unable to represent the defendant and that one of his associates would represent the defendant at the time of trial, and where, on Monday, the defendant informed his counsel that the substitute was unsatisfactory. The appellate court there held that the trial court’s refusal on Tuesday to grant a continuance deprived the defendant of a fair opportunity and a reasonably sufficient time to select and employ counsel of his own choosing.


source: Caselaw Access Project

author: J. H. G-illis, P. J.

license: Public Domain

text:
    HAGGERTY v. MacGREGOR.
    1. Appeal and Error — Questions Review able.
    An issue raised for the first time on appeal is not discussed by the Court of Appeals, since the issue was not before the trial eourt.
    2. Bills and Notes — Payment—Renewal.
    Giving of a renewal note is not ordinarily regarded as payment of a pre-existing note or obligation.
    3. Payment — Bills and Notes — Intent—Evidence.
    A note should be regarded as payment of a debt when it appears that it was the intention of the parties that the note be payment, and sueh intent may be proved by acts and conduct of the parties as well as by direct proof of an express promise.
    References for Points in Headnotes
    [1] 5 Am Jur 2d, Appeal and Error § 566.
    [2-4] 11 Am Jur 2d, Bills and Notes §§ 176-178, 915, 917, 918.
    Acceptance of renewal note made or indorsed by personal representative of obligor in original paper as payment or novation of that paper. 12 ALR 1546.
    Parol-evidence rule: evidence of agreements as to manner or medium of payment of bill or note, or as to credit, set-off, or counterclaim with respeet to the same. 71 ALR 548.
    Construction and effect of provision in note for “renewal until paid,” and the like. 35 ALR2d 1090.

      é. Bills and Notes- — Renewal Note — Payment—Obligation.
    Finding of trial court that plaintiff intended to accept note of a former partner of defendant in substitution for the joint note of that partner and defendant held, not clearly erroneous, where the evidence showed plaintiff was notified that the defendant and the former partner had terminated their business relationship, plaintiff was informed that the former partner assumed all business obligations and said the arrangement was all right with him, the renewal note was given while defendant was out of the State and in financial difficulties which led to bankruptcy, and the former partner testified the debt was his responsibility.
    Appeal from Wayne; Dingeman (Harry J., Jr.), J.
    Submitted Division 1 June 5, 1967, at Detroit.
    (Docket No. 2,465.)
    Decided March 21, 1968.
    Declaration by James J. Haggerty against Norman R. MacGregor to recover on a promissory note. Judgment of no cause of action. Plaintiff appeals.
    Affirmed.

      Balfour D. Peisner, for plaintiff.

      Matheny, Schureman & Brakes, for defendant.
   J. H. G-illis, P. J.

Plaintiff James J. Haggerty sued defendant Norman R. MacGregor on a promissory note executed in October, 1950. After a non-jury trial, the circuit judge made written findings and on July 1, 1966, entered a judgment of no cause of action. This appeal is taken from that judgment.

In 1950, defendant and Leo Bonnie proposed to open and operate an automobile dealership in Lake City, Alichigan. Bonnie approached plaintiff for the purpose of securing needed capital. In return for a loan of $8,000 Bonnie and the defendant jointly executed a two-year note in favor of plaintiff which formed the basis of this suit. The business venture encountered financial difficulties and in 1952 Bonnie purchased defendant’s interest and recorded a bulk sale affidavit. Bonnie agreed to assume all the business debts.

Shortly thereafter, defendant moved to California and after a series of business reverses in that State he was adjudicated a bankrupt and received a discharge in October 1954. The 1950 note to Haggerty was not listed in the schedule of indebtedness filed in conjunction with the bankruptcy proceedings.

Defendant returned to Michigan, and for substantial periods between 1954 and 1962 was outside the United States on business for his employer, Ford Motor Company. The evidence discloses that during this period Haggerty knew of MacGregor’s whereabouts and occasionally encountered MacGregor but at no time was reference made to the note.

Bonnie signed a note for $9,440 dated April 22, 1954 (Thursday), payable to plaintiff, which represented the original 1950 note plus the interest accrued to the date of the 1954 note. Bonnie made no payments on the original loan until the same week that the 1954 note was executed. Plaintiff did not surrender the original note. After periodic payments had been made by Bonnie, plaintiff stamped the 1954 note “paid in full” and wrote across the face of the note “Settled in full as far as Bonnie is concerned for $4,000.” On July 31, 1959, plaintiff executed a formal release witnessed by two persons releasing Bonnie, his heirs, et cetera, from all claims whatsoever that might have accrued up to the date of execution. The present action was commenced in 1962.

The trial judge found on a question of fact that the 1954 note “completely replaced the 1950 note; and that the plaintiff accepted Bonnie and the new note in the place and stead of the original instrument and makers.”

Plaintiff contends on appeal that the 1954 note is void and of no effect because, while dated on a Thursday, it was actually executed on a Sunday. This issue, however, was not presented for determination by the trial court and this Court has repeatedly refused to consider issues not raised at trial. Baker Contractor, Inc. v. Chris Nelsen & Son, Inc. (1965), 1 Mich App 450; Poss v. Rossen-Poss Agency, Inc. (1966), 3 Mich App 726; House v. Gibbs (1966), 4 Mich App 519.

The issue we do decide is whether the evidence supports the trial court’s finding that plaintiff intended to accept Bonnie’s note in substitution for the joint note of Bonnie and defendant.

Generally, acceptance of a renewal note is not regarded as payment of a pre-existing note or obligation. In re Dunneback’s Estate (1942) 302 Mich 73. However, the renewal note will be held to constitute payment where such was the intention of the parties. As stated in Chase v. Gregory (1935), 274 Mich 32, 37:

“ ‘A bill or note should be regarded as payment whenever it appears such was the intention of the parties, and “that such was the understanding of the parties may be proved by circumstances, such as the acts and conduct of the parties, as well as by direct proof of an express promise or agreement.” 2 Parsons on Contracts, 624; Hotchin v. Secor, 8 Mich 494; Sage v. Walker, 12 Mich 425; Brown v. Dunckel, 46 Mich 29.’ Riverside Iron Works v. Hall, 64 Mich 165, 168.”

See, also, 6 Corbin on Contracts, § 1293, p 185.

In the present case, plaintiff was notified in May, 1952, that defendant and Bonnie had terminated their business relationship. Plaintiff was also informed at that time that Bonnie had assumed all the business obligations after the sale and that Bonnie had “full responsibility” for the debt in question. Plaintiff thereupon assured defendant that this arrangement was “quite all right” with him, according to defendant; plaintiff on the other hand testified that he told defendant that he was still holding him responsible. This presented the trial judge with a disputed question of fact for his determination. Bonnie gave the renewal note almost two years later. At the time the renewal note was signed defendant was in California, in financial straits which culminated in a discharge in bankruptcy 6 months later. The original 1950 loan was evidenced by a check made out to Bonnie alone. Bonnie testified that subsequent to defendant’s leaving the business he had a conversation with plaintiff, reflected by the following testimony:

“Q. Did you ever tell that to Mr. Haggerty?
“A. [Bonnie] Well, Haggerty told me at one time that it is my responsibility and that it was up to me to get whatever money I can out of MacGregor, not him.
“Q. By ‘my responsibility,’ do you mean you, Leo Bonnie; your responsibility to pay him?
“A. Right. And also it was up to me to get any money I could out of Norm MacGregor.”

There was a substantial basis, under the facts of this case, for the trial judge to conclude that plaintiff’s objectively manifested intent was to accept the 1954 note in payment of the 1950 note. We therefore cannot say that the finding that defendant was discharged was clearly erroneous (GCR 1963, 517.1).

Affirmed. Costs to appellee.

McGregor and Thorburn, JJ., concurred.


author: Levin, J. Judge Quinn

text:
    PEOPLE v. WILLIAMS.
    1. Criminal Law — Statutes—Inmate—Trial.
    Any inmate of a Michigan penal institution, who is the subject of an untried warrant, indictment, information, or complaint setting forth against him a criminal offense for which a prison sentence might be imposed upon conviction, shall be brought to trial within 180 days after the department of corrections delivers to the prosecuting attorney of the county in which such warrant, indictment, information, or complaint is pending written notice of place of imprisonment of the inmate and request for final disposition of the untried charges (CLS 1961, § 780.131).
    2. Same — Charge Against Inmate — Prosecutor—Department of Corrections — Presumption of Notice.
    A prosecutor will be deemed to have received notice from the department of corrections of an untried warrant, indictment, information, or complaint against a prisoner even though there was no formal notiee from the department in a ease where both the department and the prosecutor were aware of the facts and there had been inaction on the untried charge throughout the 180-day statutory time for action (CLS 1961, § 780.131).
    3. Same — Public Policy — Speedy Trial — Imprisonment for Another Crime — Commencement of Proceedings.
    Public poliey, as expressed by the legislature with respeet to the meaning of speedy trial of one serving a prison sentence upon conviction of some other crime, calls for bringing to trial within 180 days after the department of corrections notifies the appropriate prosecuting attorney of the accused’s imprisonment and requests final disposition of the information, the statutory requirement being satisfied by the taking of good faith action to start the proceedings in motion (CLS 1961, § 780.131).

      References for Points in Headnotes
    [1-3, 6, 8,11] 21 Am Jur 2d, Criminal Law §§ 249, 250, 254.
    Constitutional or statutory right of accused to speedy trial as affected by his incarceration for another offense. 118 ALR 1037.
    [5, 6,11] Effect of dismissal of original indictment or information with subsequent reindietment or information, under statute implementing right of accused to speedy trial. 30 ALR2d 462.
    [10,11] 21 Am Jur 2d, Criminal Law § 253.
    Waiver or loss of defendant’s right to speedy trial in criminal case, 129 ALR 572, 57 ALR2d 302.

      4. Same — Trial of Untried Chaeses — Jurisdiction.
    The meaning of the term “brought to trial,” as used in act relative to disposition of untried charges filed against prisoners, is to be gathered from the entire act (CLS 1961, § 780-.131).
    5. Same — Information—Dismissal of Some Counts — Jurisdiction of Defendant.
    Dismissal of 2 counts of a 3-count information leaves the 3-eount complaint an untried complaint and the court retains jurisdiction of the defendant (CLS 1961, § 780.131).
    6. Same — Information—Dismissal of Some Counts — Statute—• Trial.
    Dismissal of 2 counts of an information before defendant is returned to prison does not prevent the statute relative to disposition of untried warrant, indictment, information, or complaint from becoming operative as to these 2 eounts, and they must be dismissed with prejudice if no aetion is taken on them within the required time (CLS 1961, §§ 780.131, 780-.133).
    7. Same — Untried Warrant, Indictment, Information or Complaint.
    A eharge, onee formally lodged, remains untried and is part of an untried warrant, indictment, information, or complaint (CLS 1961, §§ 780.131, 780.133).
    8. Same — Statute—Trial Within 180 Days — Premise.
    Underlying premise of the statute, providing that one serving prison sentence upon conviction of some other erime be brought to trial within 180 days after department of corrections notifies prosecuting attorney of accused’s imprisonment and requests final disposition, is that a prosecutor may properly try less than all the untried multiple offenses and after such trial proceed against the accused on the remaining charges (CLS 1961, § 780.131).

      9. Same — Trial Within 3 80 Days — Trial Dates.
    Trial dates are not required by statute to be set within the 180-day period for all charges set forth in an untried warrant, indictment, information, or complaint against a prisoner (CLS 1961, § 780.131).
    10. Same — Speedy Trial — Formal Demand.
    Failure of a defendant to make a formal demand on the record for a speedy trial waives a defense predicated on that constitutional requirement (Const 1963, art 1, § 20).
    11. Same — Amended Information — Quashing—Drugs.
    Quashing of information charging defendant with selling and dispensing marijuana and heroin, on grounds defendant was not brought to trial within 180 days, held, error, where defendant was arrested on complaint and warrant charging he sold or dispensed marijuana, heroin, and cocaine, was examined and bound over for trial on all 3 counts, was later arraigned and counts 1 and 2 were dismissed, defendant was returned to prison as a parole violator, trial was adjourned twice because of defendant, defendant retained 2 attorneys who withdrew and finally got appointed counsel, and prosecutor moved for nolle prosequi as to count 3 because people’s expert could no longer identify example as eocaine (CLS 1961, §§ 780.131, 780.133).
    Appeal from Oakland; Beasley (William E.), J.
    Submitted Division 2 October 2, 1967, at Lansing.
    (Docket No. 3,529.)
    Decided March 31,1968.
    Leave to appeal denied February 11, 1969.
    See 381 Mich 800.
    Melvin E. Williams was charged with selling marijuana, heroin, and cocaine. Information was quashed for failure of people to comply with statutory requirements. The people appeal.
    Eeversed.

      Frank J. Kelley, Attorney General, Robert A. Derengo ski, Solicitor General, S. Jerome Bronson, Prosecuting Attorney, and Robert W. Leutheuser, Chief Appellate Counsel, for the people.

      Campbell & Lee, for defendant. •
   Levin, J.

The trial judge concluded that there was a failure to comply with the requirements of CLS 1961, § 780.131 (Stat Ann 1968 Cum Supp § 28.969[1]) and CLS 1961, § 780.133 (Stat Ann 1968 Cum Supp § 28.969[3]) (see footnote 3) which require that whenever the department of corrections receives notice of an untried warrant, indictment, information, or complaint affecting an inmate, the inmate shall he brought to trial within 180 days after the department delivers to the prosecuting attorney notice of the inmate’s imprisonment and a request for final disposition of the untried charges.

Defendant was arrested on a complaint and warrant dated April 1, 1966, charging that he sold or dispensed marijuana (count 1), heroin (count 2), and cocaine (count 3) in violation of PA 1937, No 343 (CL 1948, § 335.152 [Stat Ann 1957 Rev § 18.-1122]). The offenses were alleged to have been committed at different times.

On April 22, 1966, the defendant was examined and bound over for trial on all three counts. On May 12, 1966, the defendant- was arraigned on the third count, cocaine, and counts 1 and 2 were dismissed at the people’s request. Also on May 12, 1966, a hearing was held on defendant’s application for a writ of habeas corpus. The writ was denied and the defendant was returned to the State prison for a hearing upon alleged violations of his parole.

On June 14, 1966, the trial date of June 16, 1966, was adjourned at defense counsel’s request. On July 21, 1966, defendant was not ready for a trial scheduled to begin on July 27, 1966, and the matter was again adjourned.

On August 22, 1966, the defendant was taken before a circuit judge. The defendant had become dissatisfied with one lawyer he retained and that lawyer had been permitted to withdraw. Defendant retained a second lawyer who, at the conclusion of the August 22 hearing, was allowed to withdraw. The court then assigned counsel to the defendant as an indigent.

On September 23, 1966, the matter again came up and the defendant waived trial by jury.

On November 22, 1966, the prosecuting attorney moved for an order of nolle prosequi as to count 3, stating that the people’s expert was no longer able to identify the sample substance as cocaine. The order was entered.

On November 23, 1966, the people filed an amended information charging defendant with dispensing heroin (count 1) and possession of heroin (count 2). On December 7, 1966, defendant moved to quash the information on the ground that the requirements of the statutory provision previously mentioned had not been complied with and that the 180-day period therein prescribed had expired without the defendant having been brought to trial.

The trial judge quashed the information on March 7, 1967, pursuant to CLS 1961, § 780.133 (Stat Ann 1965 Cum Supp § 28.969[3] ) on the basis of our opinion in People v. Haynes (1967), 5 Mich App 641.

The people ask us to reconsider Haynes, and assert that the defendant should not be permitted to profit from his “dilatory tactics.” Defendant counters that Haynes was correctly decided, that the Haynes rule was here properly applied by the trial judge, and that even if it were to be found that defendant delayed commencement of trial on the cocaine count and the statute could not properly be relied on by the defendant as to the cocaine count, the defendant did not delay trial on the heroin charge at one time dismissed, at the request of the people and, therefore, any defendant’s delay in respect to the cocaine charge should not affect the matter.

We find it unnecessary to consider whether Haynes was correctly decided because we do not think that this case presents the question that divided our Court in Haynes. Haynes pled guilty to one charge, and was thereupon sentenced and delivered to the State prison. The issue of compliance with the statutory requirement concerned an untried charge which was pending at the time that Haynes was convicted on his plea of guilty. In Haynes, our Court, led by Judge Gillis, Judge Quinn dissenting, ruled that a prosecutor will be deemed to have received notice from the department of corrections even though there was no formal notice from the department in a case where both the department and the prosecutor were aware of the facts and there had been inaction on the untried charge throughout the 180-day period. In Haynes the prosecutor obtained a number of adjournments of which Haynes was not aware.

In formulating the statutory language the legislature sought to protect those who face multiple charges against undue delay in trial when they are held in State prison while untried charges are still pending. The statute seeks to secure to those serving sentences in a State prison the enjoyment of the rule of law which, in the absence of a statute otherwise providing, prohibits imposition of a sentence to commence upon completion or expiration of another sentence. In re Carey (1964), 372 Mich 378, 380.

The defendant in this case had not been convicted of any of the multiple charges lodged against him when he was confined in State prison. He was returned to the State prison as an alleged parole violator.

The statute in question was considered by our Supreme Court in People v. Hendershot (1959), 357 Mich 300, 304, and People v. Castelli (1963), 370 Mich 147. In Hendershot the defendant was arraigned, his preliminary examination was held, and he was hound over and a date for a sanity hearing set within the 180-day period. The Supreme Court declared (p 304):

“If, as here, apparent good-faith action is taken [by the people] well within the period and the people proceed promptly and with dispatch thereafter toward readying the case for trial, the condition of the statute for the court’s retention of jurisdiction is met. When the people have moved the case to the point of readiness for trial and stand ready for trial within the 180-day period, defendant’s delaying motions, carrying the matter beyond that period before the trial can occur, may not be said to have brought the statute into operation, barring trial thereafter.”

Later, in Castelli, the Court explained that Henclershot “held that the statutory requirement that the accused ‘shall be brought to trial’ within 180 days does not require actual trial within that time, but only the taking of good faith action to start the proceedings in motion.” (p 153) In Castelli the Court rejected a defense based on alleged noncompliance with the 180-day requirement. It there appeared that the warrant on the untried charge had been issued after the defendant entered the State prison, and that within the 180-day period the defendant had been brought back to the charging-county and the preliminary examination held.

It is manifest on the record before us that the defendant in this case could not have properly raised the statutory defense as to the cocaine count. The people took good-faith action to start the cocaine count proceedings in motion and proceeded promptly and with dispatch toward readying that case for trial.

However, the cocaine count was nolle prossed. Defendant asserts that even if the people proceeded diligently on the cocaine count the people’s failure to have done anything at all to bring the heroin count to trial within the 180-day period prescribed by the statute requires dismissal with prejudice as to the untried heroin charge.

The unstated assumption of the statute relied on by the defendant is that a prosecutor may properly try less than all the multiple offenses facing an accused and after such trial proceed against the accused on some or all the remaining charges. The statutory provision here relied on cannot become applicable prior to incarceration in the State prison and, thus, had defendant remained in the county jail either because bond had been denied or because he could not make bond set by the court, or had he been freed on bond while awaiting trial the defense asserted here would not be applicable.

“The legislative intent and meaning in its use of the term ‘brought to trial’ is to be gathered from the entire act.” People v. Hendershot, supra, p 303.

That which is required to be “brought to trial” within 180 days is “any untried warrant, indictment, information or complaint” pending against the inmate. Defendant must therefore concede, in order to assert the defense, that the heroin charge was part of an “untried warrant, indictment, information or complaint” even though count 1 (marijuana) and count 2 (heroin) were dismissed on May 12, 1966, at the people’s request, shortly before the defendant was returned to the State prison as a parole violator.

We do not think that the operative effect of the statute depends on the technical posture of the case —e. g., whether the untried charge has been “dismissed” — hut rather on the substance of the matter. Here, although counts 1 and 2 had been formally dismissed shortly before defendant was returned to State prison, the people could bring those charges again and, thus, in practical effect and in substance, the heroin count was still pending “untried” when defendant was returned to State prison.

"We add that even though counts 1 and 2 of the information were formally dismissed the court retained jurisdiction of the defendant on the complaint, which was thus an “untried complaint.” See Mentor v. People (1874), 30 Mich 91, where, on the defendant’s motion, the information was quashed with leave to the people to file a new information. The defendant stood mute to the new information, and on appeal of the conviction contended the trial court had no jurisdiction over him on the new information. The defendant argued that when the earlier information was quashed the court lost jurisdiction over him, and the court could only reacquire jurisdiction upon filing of a new complaint. The Court rejected the defendant’s argument and declared (pp 92, 93):

“This information being quashed on the defendant’s motion, as no information, the case stood in all respects as if none had before been filed.
“The complaint before the justice, his warrant, commitment and return were still of the same force and virtue as the basis for an information as if that which had been quashed had never been presented. And it would have been a simple outrage upon public justice to have discharged the prisoner, without giving the prosecutor an opportunity to file an information upon the offense for which the prisoner stood committed.
“The court had lost no jurisdiction of the prisoner by the void or defective information which had been quashed.”

We would reject an argument by the people that the dismissal of counts 1 and 2 on May 12, 1966, shortly before defendant’s return to State prison, prevented the statute from ever becoming operative as to counts 1 and 2, and such counts could thus be tried years hence, irrespective of total inaction in the meantime on the part of the people. Likewise, the dismissal of counts 1 and 2 is not a factor to be weighed in defendant’s favor for the purposes of this statute. In the phrase “untried warrant, indictment, information or complaint” the key word is “untried.” As long as a charge, once formally lodged, remains untried, it is part of an untried warrant, indictment, information or complaint. Thus, for the purposes of the statute before us, all 3 counts of the original information filed against the defendant remained, even after the dismissal of counts 1 and 2, part of an “untried warrant, indictment, information or complaint.”

The “untried warrant, indictment, information or complaint” or, more simply, the untried complaint charging the defendant was “brought to trial”, for the purpose of this statute, as to all 3 charges, when good-faith action was taken to bring the cocaine count to trial. Although the 3 offenses originally charged concern possession or dispensing of different drugs on different occasions, at the preliminary examination probable cause was found to have been established principally on the basis of the testimony of one witness. Upon the preliminary examination, the defendant had been bound over for trial on all 3 counts. All that remained was to try the defendant. An underlying premise of the statute is that a prosecutor may properly try less than all the multiple offenses and after such trial proceed against the accused on the remaining charges. The statute does not require that trial dates have been set within the 180-day period for all 3 charges set forth in the “untried warrant, indictment, information or complaint” here before us.

We conclude that in this case the people have discharged the statutory obligation of good-faith and prompt action in prosecuting the untried charges, applicable both to a defendant returned to State prison as a parole violator and one confined in State prison upon conviction of one or more, but less than all, the multiple charges lodged against him. If, upon conclusion of the trial of the heroin counts set forth in the new information, the people do not in compliance with the statute in good faith bring the untried marijuana count to trial, the defendant may avail himself of the remedy set forth in section 3 of the act (see footnote 3). The salutary objectives of the act can be accomplished in harmony with the orderly administration of justice.

Defendant also asserts that the delay in proceeding to try the heroin count deprived him of his constitutional right to a speedy trial. Const 1963, art 1, § 20. Our Supreme Court has held that a defendant’s failure to make a formal demand on the record for a speedy trial requires rejection of a defense predicated on that constitutional requirement. People v. Duncan (1964), 373 Mich 650; People v. Miklovich (1965), 375 Mich 536. The defendant in this case failed to make such a demand.

Eeversed.

McGregor, P. J., concurred with Levin, J.

Judge Quinn

concurs on the basis CLS 1961, §780.131 (Stat Ann 1965 Cum Supp § 28.969[1]) has no application to this case for the reasons expressed in his dissenting opinion in People v. Haynes (1967), 5 Mich App 641.

       “See 1. Whenever the department of corrections shall receive notice that there is pending in this State any untried warrant, indictment, information or complaint setting forth against any inmate of a penal institution of this State a criminal offense for which a prison sentence might be imposed upon conviction, such inmate shall be brought to trial within 180 days after the department of corrections shall cause to be delivered to the prosecuting attorney of the county in which such warrant, indictment, information or complaint is pending written notice of the place of imprisonment of such inmate and a request for final disposition of such warrant, indictment, information or complaint. The request shall be accompanied by a statement setting forth the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner and any decisions of the parole board relating to the prisoner. The written notice and statement provided herein shall be delivered by certified mail.” (Emphasis supplied.)

       An agreed statement of facts entered into by the parties contains the following: “It is to be noted that defense counsel seasonably objected several times to the original information on the grounds that Mr. Williams was, in fact, charged with three separate and distinguishable criminal offenses, and that the three offenses should be served [severed] into three separate informations, each containing one charge.” See 1 Gillespie, Michigan Criminal Law and Procedure, §§ 371, 372.

       “Seo 3. In the event that, within the time limitation set forth in section 1 of this act, action is not commenced on the matter for which request for disposition was made, no court of this State shall any longer have jurisdiction thereof, nor shall the untried warrant, indictment, information or complaint be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.”

       PA 1927, No 175, chap 8, § 7a, as added by PA 1954, No 100 (CLS 1961, § 768.7a [Stat Ann 1954 Rev § 28.1030(1)]) providing that in the discretion of the court a sentence imposed for crime committed while in prison shall commence upon expiration of the prison term the offender was serving at the time of the commission of the crime.

       The attorney general has expressed the following views:
      “As we construe this statute, we do not believe that the phrase, ‘brought to trial/ used in section 1 of the aet, and the phrase, ‘action is not commenced/ used in section 3 of the act, are in conflict or that they are incompatible.” and “We believe the legislature contemplated that the ‘action’ to be commenced, as required by section 3, must be such as to result in the inmate being ‘brought to trial/ as required by section 1.” 2 OAG- 1958, No 3124, pp 47, 48.

       The complaint alleged the commission of 3 separate offenses. While the agreed statement of facts sets forth that the defendant objected to the original information as duplieitous, it is not claimed here that any such objection was voiced to the complaint. Further, counts 1 and 2 of the complaint were not dismissed. We add that any such dismissal would not have been equivalent to a trial of sueh counts, so that such counts would, nevertheless, have remained untried charges that had once been formally lodged against the defendant and could thus be viewed as part of an “untried” complaint.
      It has been said that, even if a warrant charged 2 separate and distinct crimes and one preliminary examination was conducted as to both offenses, the objection of duplieity could not be raised since the reason for the rule against duplieity — i.e., a defendant should not be subjected to trial for 2 separate and distinct offenses at one time — would not be applicable. People v. Shuler (1904), 136 Mich 161, 166. We also note that the information “is not predicated upon the complaint or the examination upon whieh the warrant issues, but it is presumed to have been framed with reference to the facts disclosed at the examination whieh succeeds the arrest.” People v. Kahler (1892), 93 Mich 625, 627. The statute does not prescribe any form that the complaint shall take; the primary function of the complaint is to move the magistrate to consider and determine whether a warrant shall issue, and the justification for issuance of the warrant is not supposed necessarily to appear in the complaint. Turner v. People (1876), 33 Mich 363. The complaint docs not “fix and control the after-proceedings.” People v. Kahler, supra. See, also, People v. Pichette (1897), 111 Mich 461, 462. Compare People v. Norman (1968), 9 Mieh App 647. It may even be, having in mind the function of a complaint, that a complaint may not bo “dismissed” — either a warrant issues on the complaint, or it does not; and if a warrant improperly issues, the warrant may be attacked, but not the complaint. A dismissal by the magistrate of a complaint before issuance of a warrant might properly be viewed as a refusal to issue a warrant, rather than a “dismissal” of the complaint itself.
      In a ease (e.g., misdemeanor) where the complaint and warrant take the place of an information, they are subject to objection on the ground of duplicity. People v. Jackman (1893), 96 Mich 269, 274; Tiedke v. Saginaw (1880), 43 Mich 64.

       The principle so stated in Mentor v. People, supra, was applied in Dimmers v. Hillsdale Circuit Judge (1939), 289 Mich 482, and People v. Milkovich (1965), 375 Mich 536, 539,


author: Lesinski, C. J.

text:
    PEOPLE v. QUALLS.
    1. Criminal Law — Influencing Jury — Mistrial—Discretion of Court.
    Refusal of trial court to grant defendant’s motion for mistrial based on elaim that a juror had heard a brother of one of the victims of his voluntary manslaughter verbally abusing defendant’s lawyer held, not an abuse of discretion, where judge asked jury whether they could reeall any incident outside the courtroom which would influence their thinking or verdiet or tend to prejudice them in any way, and when there was no affirmative response, asked whether counsel for either side had any other questions for the jury (CL 1948, § 750-.321).
    2. Same — Mistrial—Discretion of Court.
    Declaration of mistrial in a criminal case rests in the sound discretion of the trial judge.
    3. Same — Mistrial—Nonpbe judicial Irregularity.
    A mistrial in a criminal case should not be declared in consequence of any mere irregularity which is not prejudicial to the rights of the defendant.
    4. Same — Improper Contact with Jury — Mistrial—Prejudice.
    Not every improper contact with a jury presents grounds for a mistrial in a criminal case and an appellate court will reverse only when prejudice is affirmatively shown or facts clearly establish the inference that it occurred from what was said or done.
    References for Points in Headnotes
    [1, 3, 4] 21 Am Jur 2d, Criminal Law §§ 194, 198.
    [2] 21 Am Jur 2d, Criminal Law § § 194, 201, 204.
    [5] 21 Am Jur 2d, Criminal Law § 195.
    [6] 5 Am Jur 2d, Appeal and Error § 545 et seq.

    [7] 16 Am Jur 2d, Constitutional Law § 573; 21 Am Jur 2d, Criminal Law § 318 et seq.

    Duty to advise accused as to right to assistance of counsel. 3 ALR2d 1003.
    Necessity of informing suspect of rights under privilege against self-incrimination, prior to police interrogation. 10 ALR3d 1054.
    [8] 5 Am Jur 2d, Appeal and Error § 549.
    [9-12] 53 Am Jur, Trial §§ 302, 415-426.
    [13] 26 Am Jur, Homieide §§ 323-325.

      5. Same — Failure to Complain op Irregularities — Waiver.
    A defendant wlio chooses to take the chance of an acquittal on the merits, without complaining of irregularities at the trial, waives his objections.
    6. Same — Admissions—Objections.
    Defendant’s failure to raise an objection in the trial eourt that certain admissions elicited from him during interrogation by-policemen while he was in custody were improperly admitted into evidence held, to preclude him from raising the objection on appeal after conviction of voluntary manslaughter, where he suffered no clear injustice by admission of the evidence (CL 1948, § 750.321).
    7. Same — Constitutional Law — Appointed Counsel.
    Advising a defendant that he had a right to counsel without informing him that counsel would be appointed if he were without funds is contrary to the spirit and language of United States Supreme Court ease dealing with right to counsel during interrogation.
    8. Appeal and Error — Failure to Object — Inherent Power op the Court.
    Failure to object to errors in the lower eourt preeludes their being raised for the first time on appeal, but the inherent power of the Court of Appeals to prevent fundamental injustice is not limited by what appellant is entitled to as a matter of right.
    9. Criminal Law — Voluntary Manslaughter — Directed Verdict op Not Guilty.
    Denial of defendant’s motion for directed verdict of not guilty of voluntary manslaughter, made on ground that prosecution had not proven the element of provocation, held, not an abuse of discretion where trial eourt took the motion under advisement and defendant thereafter gave testimony which supplied element of provocation and supported verdict of guilty (CL 1948, § 750.321).
    10. Same — Directed Verdict — Trial Court — Evidence—Jury.
    The direction of a verdict of not guilty is addressed to the discretion of the trial court, and the trial judge should not direct a verdict where there is sufficient evidence to submit the case to a jury and justify a conviction.
    11. Same — Manslaughter—Motion por Directed Verdict.
    Motion for directed verdiet, which was based on the fact that the prosecution had not conclusively demonstrated the presenee of provocation in a trial for voluntary manslaughter, held, properly denied, where the subsequent testimony of the defendant supplied the deficiency (CL 1948, § 750.321).
    12. Same — Denial of Motion fob Directed Verdict.
    The trial judge is correct in denying a motion for a directed verdiet when testimony supporting the prosecution’s theory is subsequently supplied by the defendant.
    13. Same — Voluntary Manslaughter — Defendant’s State of Mind —Question for Jury.
    The question of defendant’s state of mind at the time of the homicide held, properly a question of fact for the jury under record presented in a trial for voluntary manslaughter (CL 1948, § 750.321).
    Appeal from Wayne; Sullivan (Joseph A.), J.
    Submitted Division 1 October 4, 1967, at Detroit.
    (Docket No. 3,317.)
    Decided March 21, 1968.
    Rehearing denied April 29, 1968.
    Leave to appeal denied July 23, 1968.
    See 381 Mich 763.
    Certiorari denied by Supreme Court of United States November 25, 1968.
    Ewell C. Qualls was convicted of manslaughter. Defendant appeals.
    Affirmed.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cabalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Richard J. Padzieski, Assistant Prosecuting Attorney, for the people.

      Riseman, Lemke & Piotrowski, for defendant.
   Lesinski, C. J.

The defendant, Ewell C. Qualls, was convicted by a jury of the crime of manslaughter and sentenced to prison.

The facts reveal that on April 3, 1965, the Highland Park police department was summoned to an address in that city to investigate a shooting. Upon arrival, the officers observed the defendant in the doorway with a revolver in his hand. The defendant motioned for the police to enter, and the bodies of Ervin Kopas and Mervyn Shewell were found therein. The defendant was arrested, stood trial, and was convicted of voluntary manslaughter in the death of Mervyn Shewell.

On appeal, as his first assignment of error, the defendant contends the trial court abused its discretion by failing to grant a motion for a mistrial when it was brought to the court’s attention that the brother of Ervin Kopas had heaped verbal abuse on defense counsel, allegedly in the presence of a juror. The brother was questioned by the court in the absence of the jury about the incident and his account in response was as follows:

“The Court: Were there other people in the elevator?
“Mr. Kopas: Tes, there was my wife and some counsel of his [defendant]. That to my awareness was all that was in the elevator, and as to regards as to what I recall exactly what I said. I said, I asked him, I said, ‘Are you happy in your chosen profession?’ I said, ‘I hope you’re happy in your chosen profession,’ and I didn’t recall the response that I got from him, and there was no mention whatsoever of Qualls. I just told him that my opinion of him was very low in his type of line of work he’s doing, and that if there was a hell anywhere he would find it, and that’s exactly as far as I can remember, that was the exact words. There was no mention of this particular case, or in essence it was just like he says, a personal attack on his character.” (Emphasis supplied.)

The trial judge recalled the members of the jury and inquired of them collectively, “if you can recall or think of any incident or occurrence outside of the courtroom which would in any way influence your thinking, or your verdict in this case, or tend to prejudice you in any way against one side or the other.” This inquiry failed to elicit an affirmative response from any of the jurors, whereupon the judge asked if counsel for either side had any other questions for the jury. Both counsel stated they had no further questions.

The defendant, on appeal, contends that the trial judge abused his discretion in denying the motion for a mistrial, and further, that the investigation made by the trial judge concerning the verbal attack on defense counsel, reportedly in the presence of a juror, was not complete enough to ascertain whether defendant had been prejudiced by the incident. The record does not reveal the abuses the defendant urges.

When the trial court learns of an incident, such as happened in this case, arising during the progress of the trial, fairness to the defendant requires that the trial judge ascertain its prejudicial effect. And whether or not the circumstances establish that a mistrial should he declared rests in the sound discretion of the trial judge. People v. Bigge (1941)] 297 Mich 58. Moreover, a mistrial should not he declared in consequence of any mere irregularity which is not prejudicial to the rights of the defendant. People v. Watson (1943), 307 Mich 596.

In People v. Schram (1966), 378 Mich 145, our Supreme Court was confronted with the same problem as in the instant case. The rule adopted in Schram, supra, is that not every improper contact with a jury presents grounds for a mistrial and the appellate court will reverse only when prejudice is affirmatively shown or facts clearly establish the inference that it occurred from what was said or done. See, also, People v. Nick (1960), 360 Mich 219.

Assuming arguendo that the trial judge should have heen more extensive in his inquiry, the position that defendant herein urges is certainly inconsistent with his position at trial, that he was satisfied with the court’s inquiry and had no further questions. This Court views the defendant’s present position as an afterthought; by failing to make further requests of the trial judge, the defendant has effectively waived the right to complain. It has been said on good authority that “It is only in furtherance of good practice to hold that a defendant who chooses to take the chances of an acquittal on the merits, without complaining of irregularities at the trial, waives his objections.” 2 Gillespie, Michigan Criminal Law and Procedure (2d ed), § 715, p 909. We find that the inquiry of the trial judge, while not exhaustive, was sufficient under the facts presented to satisfy the spirit of Schram, supra, and justified the denial of the motion for a mistrial.

In his second assignment of error, the defendant contends that certain admissions elicited from him during in-custody interrogation were improperly admitted into evidence. In support of his contention, he directs our attention to Miranda v. Arizona (1966), 384 US 436 (86 S Ct 1602, 16 L ed 2d 694, 10 ALR3d 974). The defendant’s position is persuasive in that prior to questioning by the police, although he was advised of his right to counsel, he was never advised that this right included “retained or appointed” counsel. Certainly advising the defendant that he had a right to counsel without informing him that counsel would be appointed if he was without funds is contra to the spirit and the language of Miranda, supra. See, also, 80 Harv L Rev (1966-1967), pp 91, 201.

The position that the defendant maintains on appeal is again, however, inconsistent with his posture in the lower court. The record reveals that the statements made by defendant which he now contends were inadmissible at the trial, were, in fact, carefully scrutinized by him when defense counsel cross-examined the people’s police witnesses. We will not speculate as to the purpose of defense counsel’s approach but find that in the absence of an objection in the court below, he is in no position to complain. People v. Bauman (1952), 332 Mich 198.

It is settled law that the failure to object to alleged errors in the lower court precludes their being-raised for the first time on appeal. However, in People v. Paul F. Baker (1967), 7 Mich App 471, 475, this Court stated:

“However, this Court in observing this general rule, will exercise its ‘prerogative of searching for error which reflects clear injustice.’ People v. Hicks (1966), 2 Mich App 461, 463. ‘The inherent power of this Court to prevent fundamental injustice is not limited by what appellant is entitled to as a matter of right.’ People v. Dorrikas (1958), 354 Mich 303, 316.”

Viewing the entire record, we find that the defendant has suffered no “clear injustice” and his failure to raise an objection in the trial court precludes him from raising it here.

Last, the defendant contends that the record fails to demonstrate that the jury verdict was supported by the evidence and further that his motion for a directed verdict, made at the close of the prosecution’s case, should have been granted. The defendant’s motion was based upon the allegation that the prosecution had failed to introduce testimony from which the jury could reasonably infer that the element of provocation necessary for the crime of voluntary manslaughter was present.

At trial, the court took the defendant’s motion under advisement and defense counsel then presented his case. The defendant testified as to the circumstances surrounding the homicides. The defendant’s testimony, this Court finds, sufficiently warranted the denial of the motion and supported the ultimate verdict of guilty.

On direct examination the defendant testified:

“Q. And what did Larry [the decedent Shewell] say?
“A. Well, just like he said, ‘I can’t do nothing with him’ and he said, ‘Besides its a hell of a note to have somebody in your house and then call the cops on them and start arguing.’ ”

The defendant expressly admitted on direct examination to having an argument with the decedent Shewell as follows:

“Q. What about Mr. Shewell? What, if anything, did he do when Mr. Kopas started toward you around the table ?
“A. Well, I don’t know whether he was after Kopas or coming to help him. I don’t know. I know we was in an argument though. We had been arguing.
“Q. Well, when had you argued with Mr. Shewell?
“A. Well, about the same time that when he said, ‘I’m going upstairs,’ Kopas.
“Q. What did Shewell say?
“A. Well, he was kept on hollering about going to call the cops.”

Further on cross-examination the defendant testified: ■

“Q. What happened then? Was Larry seated or standing at the time ?
“A. Well, when it first started he was seated, and when I told him, I said, Well, if you don’t get him out of here I’m going to call the police,’ then that kind of irked him, and started you know, ‘Pretty good, sitting here drinking with you, and then call the police on us.’
“Q. Larry said that?
“A. Yes and we got into quite a little argument there about it.
“Q. You and Larry?
“A. Yes.”

The direction of a verdict is, of course, addressed to the sound discretion of the trial court, and the trial judge should not direct a verdict where there is sufficient evidence to submit the case to a jury and justify a conviction. People v. Sullivan (1939), 290 Mich 414. In the instant case, although at the time of defense counsel’s motion the prosecution had not conclusively demonstrated the presence of provocation, the subsequent testimony of the defendant supplied the deficiency. When testimony supporting the prosecution’s theory is subsequently supplied by the defendant, the trial judge is correct in denying a motion for a directed verdict. People v. Barlow (1903), 134 Mich 394.

The defendant’s testimony revealed that the three men had been drinking for several hours prior to the homicide. In addition, the quoted testimony indicated that “quite a little argument” had developed. It was therefore not unreasonable for the jury to infer that the alcohol, coupled with the developing argument, were the ingredients which caused the defendant to respond rashly and without deliberation. The question of the defendant’s state of mind at the time of the homicide was properly a question of fact for the jury, and based upon the record we find no reason to interfere with their conclusion. See 3 Gillespie, Michigan Criminal Law and Procedure (2d ed), § 1665, p 2007.

Affirmed.

J. H. Gillis and T. G. Kavanagh, JJ., concurred.

       CL 1948, § 750.321 (Stat Ann 1954 Eev § 28.553).


author: J. H. Gillis, J.

text:
      In re BLOCK.
    1. Attorney and Client — Disbarment—Informal Hearing.
    Denial of defendant lawyer’s motion to dismiss disciplinary proceedings before State Bar grievance committee which led to Ms disbarment, where defendant did not have an informal hearing as required by State Bar rule on 2 allegations of misconduct which were added by amendment to the formal complaint after an informal hearing was held as to other allegations of misconduct and grievance committee found misconduct at the formal hearing principally on the added allegations, held, not reversible error, since it is unlikely that the same committee which found fault at the formal hearing and whieh would have conducted the informal hearing would not have found at the informal hearing sufficient cause to file a formal complaint, under State Bar rule providing that disciplinary proceedings shall not be held invalid by reason of nonprejudieial irregularity (State Bar Rule No 15, as amended).
    2. Same — Commingling of Bunds.
    An attorney may not commingle a client’s funds with Ms own nor may they be used by Mm (Canons of Professional Ethies No 11).
    3. Same — Disbarment—Appellate Review.
    Review of proceedings culminating in an order by a 3-judge court disbarring a lawyer is not de novo, but is in the nature of certiorari.
    References for Points in Headnotes
    [1] 7 Am Jur 2d, Attorneys at Law § 60 et seq.

    [2] 7 Am Jur 2d, Attorneys at Law §§ 35, 36.
    [3, 7, 8] 4 Am Jur 2d, Appeal and Error §§ 171, 391.
    [4] 7 Am Jur 2d, Attorneys at Law §§ 66, 67.
    [5, 6] 7 Am Jur 2d, Attorneys at Law § 13.
    [9] 7 Am Jur 2d, Attorneys at Law § 16.
    [10] 5 Am Jur 2d, Appeal and Error § 1009,

      4. Same — Disbarment—Evidence.
    Order of 3-judge court disciplining defendant lawyer for misappropriation of funds paid to Mm for clients in condemnation eases, held, proper, where 2 clients alleged they were unable to obtain their awards from defendant even though he had been given the money for them and in spite of their demands, and it was undisputed that various cheeks were drawn against the trust account in which their money had been deposited, but not for their benefit, and that at various times before the clients were paid, there was -insufficient money from which they could have been paid.
    5. Same — Discipline.
    Degrees of discipline of attorney must be dissociated from concept of punishment for wrongdoing (State Bar Bule No 15, §16).
    6. Same — Discipline—Unethical Conduct.
    Discipline under the internal rules of the State Bar is not concerned necessarily with harm to the client, but rather with the professional eonduet and ethics of the attorney in dealing with the client, and to preserve the integrity of the bar and the orderly and effective administration of justice (State Bar Bule No 15, § 16).
    7. Same — Discipline—Appellate Beview.
    Beview of disciplinary proceedings against lawyers for misconduct is not to review the exercise of judgment by the trial judge, but is to determine whether the discipline imposed is supported in the record and whether its effect is so harsh or gross that as a matter of law it cannot be found to. be within the intent of the State Bar rules and elearly exceeds the authority extended by the legislature and Supreme Court.
    8. Same — Disbarment—Appeal and Error.
    Permanent disbarment of defendant lawyer for misappropriation of funds paid to him for clients, held, proper, since Court of Appeals can only pass upon aetion below to determine if it was unjustified or unauthorized as a matter of law.
    9. Same — -Commingling Clients’ Funds — Disbarment—Power op Circuit Judges.
    Power exists in the 3-judge panel of circuit judges to disbar permanently lawyers for violations of the canons of professional ethics and, in particular, for commingling clients’ trust funds with their own (Canons of Professional Ethics No 11}.

      10. Costs — Public Question — Disbarment Proceedings.
    No eosts are allowed on appeal in proceedings to disbar an attorney, a public question being involved.
    Appeal from Kent; McDonald (Archie D.), Bebean (Leo B.), and Corkin (Leo W.), JJ., presiding.
    Submitted Division 3 October 6, 1967, at Detroit.
    (Docket No. 2,622.)
    Decided March 21, 1968.
    Leave to appeal granted June 14, 1968.
    See 381 Mich 755.
    Disbarment proceedings against Clem H. Block. Order of disbarment entered. Defendant appeals.
    Affirmed.

      F. William Hutchinson, for State Bar of Michigan.

      Earl Waring Dunn, for defendant.
   J. H. Gillis, J.

This appeal concerns an interpretation of the rules of the State Bar of Michigan as promulgated by the Supreme Court pursuant to section 907 of the revised judicature act, being CLS 1961, § 600.907 (Stat Ann 1962 Rev §27A.907). Respondent Clem H. Block, appellant, contends that the procedures which led to his disbarment were not in accord with those specified by our Supreme Court, and consequently, that the disbarment order should be held for naught. Further he contends that the alleged grounds of disbarment were not sufficiently aggravated to warrant his permanent disbarment.

These proceedings commenced with a request for investigation which was filed by the late State grievance administrator, J. Cameron Hall, on January 19, 1965. The action taken by the State Bar was based on information received by the grievance administrator relating tq a number of estates in Kent county probate court in which respondent was involved as either attorney, executor, or administrator, and wherein he was accused of causing unnecessary delays, among other irregularities. Another matter of alleged misappropriation of funds given for settlement of a client’s case was also brought to the grievance administrator’s attention at this time.

Rule 15, § 4 requires an attorney to respond in writing to a properly and timely filed request for investigation. Although respondent claims to have communicated with the grievance administrator by telephone, the record indicates that no written disclosure was made by respondent as required under section 4 of the above rule. A second request dated March 12, 1965 was sent to respondent and, again, no written disclosure was received in return. The matter was then referred to the grievance committee for the 5th congressional district (Rule 15, § 5).

On April 19, 1965 the grievance committee filed a formal complaint under Rule 15, § 8 restating the allegations contained in the prior requests for investigation. A hearing was set for May 4, 1965 which, at respondent’s request, was adjourned to June 22, 1965.

Subsequent to filing the formal complaint certain additional incidents involving alleged misconduct on the part of respondent were brought to the attention of the grievance committee. These allegations involved a misappropriation of funds paid to clients of respondent on 2 condemnation cases in which he was the attorney. The 2 clients alleged that they were unable to obtain their awards from respondent even though he had been given the money for them and in spite of their demands upon him.

The grievance committee referred these 2 new matters to the grievance administrator who, after investigation, made his report to the committee. As a result of the information disclosed by the administrator, the committee filed an amended formal complaint on June 1, 1965 which included the 2 additional allegations of misconduct. Respondent made formal answer to the amended complaint.

; -Hearings before the committee commenced on August 4, 1965 and various testimony and exhibits were received. Respondent participated in these hearings and, on the third day, he moved to dismiss- the proceedings because the committee failed to conduct informal hearings on the 2 later allegations of misconduct prior to filing its formal amended complaint and the calling of formal hearings. 'The' motion was denied by the committee on the grounds that: (1) the objection was procedural and respondent failed to make timely objection either in his answer or during the hearing; (2) Rule 15 does not require an informal hearing; and (3) that in fact an informal investigation was conducted on the later allegations prior to filing the amended formal complaint. Respondent claims, on this appeal, that the committee erred in denying this motion.

It should he noted at this point that respondent contends that if the 2 later matters were not properly before the committee, their effect by inclusion was highly prejudicial in swaying the minds of the committee members. Thus, we are not required to review the action taken, if any, based on the allegations in the original formal complaint, but rather whether the committee erred in hearing the later allegations and, if so, whether that constituted prejudicial error. Indeed, the State Bar, although it could have sought affirmance on the original allegations, chose to rely principally upon the later matters, thereby putting the committee’s procedure squarely in issue.

Based on its findings and conclusions, the committee issued its report recommending disbarment. The report was certified by the committee chairman on February 1, 1966 and approved by the State Bar commissioner-at-large on March 3,1966. The report was filed with the Kent county circuit court and an order was issued to respondent to show cause why an order for discipline should not issue (Buie 15, § 15, as amended April 10,1964 and May 1,1965). Pursuant to Bule 15, § 15, a panel of 3 circuit judges was appointed who, en banc, heard the return on the order to show cause on April 20, 1966. The circuit court panel found no reason to deviate from the certified findings of the grievance committee recommending disbarment and directed that an order to discipline be presented in accordance therewith.

After a 20-day stay of entry of the order at the request of respondent, the panel entered its order of permanent disbarment. Bespondent filed a motion for rehearing before the circuit judges alleging again the impropriety of the procedures followed by the committee, in particular, in failing to conduct an informal hearing prior to the issuance of the formal complaint on the 2 later allegations of misconduct. The motion for rehearing was denied. The written opinion of the circuit judges, after setting forth substantially the facts which we have thus far related, stated:

“Rule 34 provides that ‘Process and procedure under these rules shall be as summary as may be reasonable. No investigation or proceedings hereunder shall be held invalid by reason of any nonprejudicial irregularity, nor for any error not resulting in a miscarriage of justice.’
“It would appear that, had the respondent considered that there was a miscarriage of justice because of an irregularity in the grievance procedure, that such complaint could not [sic] have been included in the answer filed by the respondent to the amended complaint, or at least prior to hearing before the grievance committee.
“It appears that the respondent, at the time of the commencement of the hearing by the grievance committee, was willing to take his chances on the proofs that would be submitted, and having done so and being dissatisfied with the results he now seeks a rehearing on the issues involved in the Nordhoff and Liskiewicz matters.
“At the hearing held by this court the record will show that most of the matters now contained in the motion for a rehearing were argued by counsel for the respondent and the State Bar.”

Rule 15, § 34 (a portion of which was quoted by the circuit judges) provides in pertinent portion:

“Process and procedure under these rules shall be as summary as may be reasonable. No investigation or proceedings hereunder shall be held invalid by reason of any nonprejudicial irregularity, nor for any error not resulting in a miscarriage of justice. The provisions in the various sections of this rule and of rule 14 shall be liberally construed for the protection of the public, the courts and the legal profession, and shall apply to all pending matters of misconduct and reinstatement so far as may be practicable, and to all future matters notwithstanding the alleged misconduct occurred prior to the effective date hereof. To the extent that application of any provision in this rule to any pending matter shall not be practicable, the rules in effect at the time this rule becomes effective shall continue to apply.”

Respondent is thus placed in the untenable position of urging a technical reading of the rule which flouts the construction dictated by the Supreme Court. Even assuming that such a technical reading would require an informal hearing, respondent is placed in the position of having been found at fault at the formal hearing after due notice and opportunity to be heard. The prejudice he claims, therefore, in its simplest terms, is that he might have been exonerated at an informal hearing. We cannot accept this proposition. An informal hearing would be held before the same committee. On an informal hearing, the committee need not find fault but need only find sufficient cause to file its formal complaint for a formal hearing. It is too unlikely to be other than mere conjecture that the same committee which found fault in the formal hearing would, on an informal hearing, have found no cause to issue its formal complaint.

The construction of these rules has been dictated by the Supreme Court. It is explicit in the portion of section 34, quoted above, that the procedures followed shall not be held invalid by reason of any nonprejudieial error nor error not resulting in a miscarriage of justice. Respondent is unable to point out, nor are we able to find any such prejudice or miscarriage of justice, and for this reason we find that the alleged failure to hold an informal hearing does not constitute reversible error.

The argument as to the merits of the disbarment have, in the briefs, been limited to what we have been referring to as the 2 later cases. These cases both involved money paid to respondent on behalf of his clients resulting from condemnation settlements. Respondent deposited the money in his trust account held in his own name. It is undisputed that various checks were drawn against this account not for the benefit of the clients and that at various times before the clients were paid, there were insufficient funds from which the clients’ awards could have been paid.

Cases cited by appellant from other jurisdictions and text statements as to grounds for disbarment shed little light on the standards for the practice of law in Michigan. Canon 11 of the Canons of Professional Ethics prohibits a commingling by an attorney of a client’s funds with his own and the use of those funds by the attorney. Whether another jurisdiction might impose the same limitation or consider such action as ground for discipline is immaterial. Our review under the rules regarding the State Bar is not de novo (In re Estes [1959], 355 Mich 411, 424) and on review of the records and briefs we find that there was evidence warranting disciplinary action and the order for discipline of the 3-judge panel.

The remaining, and most difficult question is whether an order of permanent disbarment was justified under the circumstances of this case and upon the allegations made and proven. In order to evaluate the appropriateness of the discipline imposed in this case, it is necessary to understand the nature and purpose of discipline in such a proceeding.

Degrees of discipline must he dissociated from the concept of punishment for wrongdoing, Rule 15, § 16. Discipline is to be administered as a measure for the protection of the bench, bar, and public, In re Mains (1899), 121 Mich 603. Discipline, it goes without saying, must be such as is necessary in preserving the integrity of the bar and the orderly and effective administration of justice in this State. Discipline under the internal rules of the State Bar is not concerned necessarily with harm to the client, but rather with the professional conduct and ethics of the attorney in dealing with the client. Attorney General v. Lane (1932), 259 Mich 283. Thus, as the Supreme Court states in Rule 15, § 16, the degree of discipline should he fixed with consideration of the seriousness of the misconduct, as it dictates the measures necessary to protect the bar, bench, and public.

What role is this Court to play in assessing the severity of such discipline? We cannot, on our review, enter our own judgment based on what we would have done as we might on a de novo review. See Attorney General v. Lane, supra. It is not for us to determine whether we would have imposed lighter or harsher discipline than that imposed in any given case. We think our proper function is not to review the exercise of judgment by the trial court, hut to review that judgment from a legal viewpoint as to whether it is supported in the record and whether its effect is so harsh or gross that, as a matter of law, it cannot be found to he within the intent of the rules and clearly exceeds the authority extended by the legislature and Supreme Court as the originators. See Attorney General v. Burns (1936), 276 Mich 351.

We cannot say in this case that the permanent disbarment of respondent was unjustified or unauthorized as a matter of law. There is no question that it is harsh, but that alone does not constitute ground for reversal. Nor can we intercede on a mere belief that had we decided the matter we would not have been inclined to as harsh a disciplinary measure.

In only one case which we have found did the Supreme Court express itself on the extent of the discipline imposed in a disbarment proceeding. In re Emmons (1947), 316 Mich 674. That case, like the present, involved self-dealings with client’s funds held in trust by the attorney. The 3-judge circuit panel ordered disbarment and, on appeal, 4 justices voted to affirm that order. The opinion for affirmance stated at p 693:

“The course of misconduct charged against defendant was not inadvertent. Instead it was deliberate and continued over a long course of years. The disciplinary order is not without precedent in this jurisdiction. See In re Radford, 168 Mich 474, and In re Hartford, 282 Mich 124. As was said of the defendant in the Hartford Case so it might well be said of defendant in the instant case.
“ ‘His actions exhibit a gross disregard of the obligations imposed upon him by virtue of his status as an attorney and officer of the court, and are not compatible with the attitude and sense of moral responsibility which must be possessed by those with whom the administration of justice is entrusted if the respect and dignity of the courts is to be maintained.’ ”

Emmons at least establishes that the power exists in the circuit judges to permanently disbar for violation of the Canons of Professional Ethics and, in particular, for commingling of clients’ trust funds. Finding no error in the procedures followed, the judgment, so entered, is, affirmed. No costs, a public question being involved.

Lesinski, C. J., and T. Gr. Kavanagh, J., concurred.

       “If the grievance committee, or the chairman thereof, finds there is reasonable cause to believe that a formal hearing should be held, or if the respondent demands or the board orders a formal hearing, a formal eomplaint, setting, forth the facts of the alleged misconduct shall be prepared by and subscribed with the name of counsel for the State Bar of Michigan to whom such matter is assigned. Such eomplaint may b§ signed by any grievance administrator, or by any commissioner of the State Bar of Michigan, and shall be filed with the grievance committee. Upon the filing of such eomplaint, it shall be the duty of the chairman of the grievance committee to fix the time and plaee for a formal hearing thereon, and to cause a written notiee of such hearing, together with a copy of the formal eomplaint, to be served upon the respondent, in accordance with section 30 of this rule. The notiee of hearing may be signed on behalf of the committee by the chairman or any member thereof. Formal hearings shall be held at the discretion of the chairman of the grievance committee within the congressional district or within the judicial eireuit in which the alleged misconduct occurred, or within the congressional district or within the judicial eireuit in which the respondent has, or last had, his office or residence. (See 369 Mich xxxv, xxxvi.)—Reporter.

       “The lawyer should refrain from any action whereby for his personal benefit or gain he abuses or takes advantage of the confidence reposed in him by his client.
      “Money of the client or collected for the client or other trust property coming into the possession of the lawyer should be reported and accounted for promptly, and should not under any circumstances be commingled with his own or be used by him.,J


author: Quinn, ,J.

text:
    ANDERSON v. GAMBOA.
    1. Intoxicating Liquors — Death of Liquor Licensee — Operation of Business by Administratrix.
    The liquor control commission may approve the operation of the licensed establishment by a special administratrix of the estate of a deceased licensee pending settlement of the estate (CLS 1961, § 436.17, as amended by PA 1962, No 35).
    2. Same — Administrator—Operation of Business.
    Defendant who as fiduciary of estate of her husband was a liquor licensee at time of alleged illegal sale to a minor under statute providing for operation of establishment by an administratrix pending settlement of the estate, was liable under dramshop act (CLS 1961, § 436.17, as amended by PA 1962, No 35, § 436.22).
    3. Same — Motion to Dismiss Complaint.
    Denial of motion to dismiss complaint against a defendant as administratrix of estate of her husband, who was a licensee of an SDM license, on ground she was discharged as administratrix prior to service of summons and complaint on her in aetion under dramshop act and on ground that at time of service there was no such person as defendant as the administratrix of her husband's estate held, proper, in view of statute which makes administratrix a licensee pending settlement of the estate (CLS 1961, § 436.17, as amended by PA 1962, No 35, §436.22).
    References for Points in Headnotes
    [1, 3] 30 Am Jur, Intoxicating Liquors § 119.
    [2] 31 Am Jur 2d, Executors and Administrators § 221.

      Appeal from Wayne; Brennan (Thomas E.), J.
    Submitted Division 1 November 7, 1967, at Detroit.
    (Docket No. 3,044.)
    Decided March 21,1968.
    Complaint by Harry Anderson, Isobel Anderson, and Gregory and Jeffrey Anderson by their next friend, Isobel Anderson, against Carlos H. Gamboa, Jim Smith, Antoinette Kaminskas, administratrix of the estate of Prank Kaminskas, and Glens Palls Insurance Company, a foreign corporation, to recover for injuries sustained in automobile accident. Antoinette Kaminskas’ and Glens Palls Insurance Company’s motion to dismiss denied. They appeal.
    Affirmed.

      Sullivan, Sullivan, Hull & Ranger, for plaintiff.

      David N. Walsh, for defendant appellants.
   Quinn, ,J.

On leave granted, defendants Antoinette'Kaminskas, administratrix of the estate of Prank Kaminskas, and the Glens Palls Insurance Company appeal from the order of the trial court denying their motion to dismiss. The cause of action asserted against Antoinette Kaminskas, administratrix of the estate of Prank Kaminskas, was on the basis of alleged liability under what is commonly known as the dramshop act. CLS 1961 § 436,22 (Stat Ann 1968 Cum Supp § 18.933). The cause of action asserted against Glens Palls Insurance Company was as surety on the bond of Antoinette Kaminskas, administratrix, required by the sanie statute.

April 24, 1964, plaintiffs filed complaint against defendants Gamboa and Smith for damages resulting from an automobile accident that occurred January 19,1964. April 6, 1965; on motion of plaintiffs, Antoinette Kaminskas, administratrix of the estate of Frank Kaminskas, and Glens Falls Insurance Company were added as parties defendant by the order of the trial court. Summons issued the same day and the added defendants were served therewith and with an amended complaint pleading the action against them as outlined above on April 17, 1965. After defendants filed answer to the complaint and on February 10, 1966, they moved to dismiss for the reason Antoinette Kaminskas was only the administratrix of the estate of Frank Kaminskas, who was the licensee in his lifetime, and she was discharged as administratrix prior to service of summons and complaint on her, hence at the time of service, there was no such person as Antoinette Kaminskas, administratrix of -the estate of Frank Kaminskas. The appeal is from denial of this motion.

At the time of his death, December 12,1962, Frank Kaminskas was the licensee in an SDM license. As executrix of his estate, Antoinette Kaminskas petitioned the probate court on March 7, 1963, for authority to continue this business, and such authority was granted May 6,1963. From September 19, 1963 to April 9, 1965, the license for this business was in the name of Frank Kaminskas’ estate, Antoinette Kaminskas, executrix. The alleged illegal sale to a minor, defendant Gamboa, was January 19,1964.

The issue to be decided is whether plaintiffs have stated a cause of action against a proper defendant, namely: Antoinette Kaminskas, administratrix of the estate of Frank Kaminskas. The fact that this defendant is named in the complaint as Antoinette Kaminskas, administratrix of the estate of Frank Kaminskas, rather than in the manner of the license is deemed immaterial in view of PA 1961, No 236, § 2301 (CLS 1961, § 600.2301, Stat Ann 1962 Bev § 27A.2301). This issue must be decided under the terms of the statute creating the cause of action here asserted.

CLS 1961, § 436.17, as amended by PA 1962, No 35 (Stat Ann 1963 Cum Supp § 18.988) provides in part as follows:

“All licenses issued under this act shall be construed to be a contract between the commission and the licensee and shall be signed by both parties. In the case of the death of a licensee, the commission may approve the operation of the establishment by a special administrator or special administratrix, administrator or administratix, or executor or executrix duly appointed by the proper court, pending the settlement of the estate of the deceased licensee.”

Antoinette Kaminskas as fiduciary of the estate of Frank Kaminskas was the licensee at the time of the alleged illegal sale, and under the provisions of CLS 1961, § 436.17, as amended by PA 1962, No 35 (Stat Ann 1963 Cum Supp § 18.988) was liable therefor.

Affirmed, with costs to plaintiffs.

Levin, P. J., and J. H. Gillis, J. concurred.

       CUS 1961, § 436.2q (Stat Ann 1957 Rev § 18.972[17]).

       CLS 1961, § 436.33 (Stat Ann 1957 Rev § 18.1004).


author: Burns, J.

text:
    MULLIGAN v. CITY OF KALAMAZOO.
    1. Nuisance — Injunction—Appeal and Eeror — Moot Question.
    Appeal from trial court’s denial of temporary injunction to prevent defendant city from building sewage-drying lagoon and by-products solids disposal area near plaintiffs’ lands on grounds that it would be a nuisance is dismissed, where the question has become moot by completion of construction after submission of the ease to the Court of Appeals.
    2. Costs — Public Question — Nuisance—Moot Question.
    No costs are allowed, a public question being involved, upon dismissal of appeal from summary judgment that installation of sewage and waste disposal facilities was not a nuisance per se, where appeal is dismissed because project has been completed and question is moot.
    References for Points in Headnotes
    [1] 5 Am Jur 2d, Appeal and Error § 761 et seq.

    [2] 5 Am Jur 2d, Appeal and Error § 1009.
    Appeal from Kalamazoo; Van V alkenburg (Wade), J.
    Submitted Division 3 November 8,1967, at Grand Rapids.
    (Docket No. 3,016.)
    Decided March 21,1968.
    Complaint by Olive Mulligan, Leslie Docsa, Allynn Docsa, Norma Herder, Anthony R. Owsiany, Dorothy M. Owsiany, Joseph A. Oliver, Jr., and Robert E. Talbot against the City of Kalamazoo to enjoin the construction of a sewage drying lagoon and by-products solids disposal area. Summary judgment for defendant. Plaintiff appeals.
    Appeal dismissed.

      Wickett, Erickson & Beach, for plaintiffs.

      Morris, Culver é Corsiglia, for defendant.
   Burns, J.

Plaintiffs appeal a summary judgment granted in favor of defendant.

This action was commenced to enjoin the construction of a drying lagoon and by-products solids disposal area on 250 acres in Kalamazoo township. The installation is part of a $4,000,000 project to provide secondary sewage treatment for domestic and industrial waste. Plaintiffs alleged the operation of the secondary sewage treatment plant would be a nuisance.

Defendant moved for a summary judgment under GrCR 1963, 117.2(1) on the ground that plaintiffs’ complaint did not state a claim upon which relief could be granted because injunctive relief could not be granted for speculative, conjectural or apprehensive injury or nuisance and defendant had constitutional and statutory authority to construct and operate sewage and waste disposal facilities.

The trial judge held that the installation was not a nuisance per se and that injunctive relief was not proper to enjoin a speculative nuisance. The trial judge relied upon Sommers v. City of Detroit (1938), 284 Mich 67, and Cullum v. Topps-Stillman’s, Inc. (1965), 1 Mich App 92.

Since the hearing in the trial court and the submission of the case to this Court, the project has been completed. Therefore, the question is moot.

The appeal is hereby dismissed. No costs, a public question being involved.

Lesinski, C. J., and Holbrook, J., concurred.