text:
    BLOOMFIELD v. MALONEY.
    1. Contracts — Offer and Acceptance — Rewards.
    An. advertisement offering a reward of $1,000 “for the arrest and conviction” of a criminal, is to be construed not literally but substantially, so that persons wbo give information, leading to the arrest of the offender and re* suiting in his conviction by a court of competent jurisdiction are entitled to the fund.

    2. Same.
    Where one of the defendants, in an interpleader suit for the purpose of securing a reward offered, informed the officers that she knew the name of the offender, and gave such information that the officer, with the aid of facts furnished by two other defendants, succeeded in identifying him and caused his arrest, whereupon he pleaded guilty, the defendants were entitled to have the reward divided among them in the proportions justified by the value of their services: one-half to the first informant, the other half to be equally divided between the other defendants.
    Appeal from Jackson; Parkinson, J.
    Submitted June 11, 1913.
    (Docket No. 74.)
    Decided July 18, 1913.
    Bill by Charles C. Bloomfield against W. Frank Maloney, Clara McKain, and Edward Kurtz for a decree of interpleader. From a decree awarding the fund to defendants Kurtz and Maloney, said McKain appeals.
    Reversed.

      Wilson & Cobb, for complainant.

      Fellows & Chandler, for defendant and appellant.

      Price & Whiting, for defendants and appellees.

       On the question what must be done in order to earn reward for arrest, see note in 7 L. R. A. (N. S.) 216.

   Stone, J.

This is a bill of interpleader. The complainant,- on or about January 14, 1910, received a letter purporting to have been written by a member of a “Black Hand” society of Chicago, 111., stating that if complainant did not leave a large sum of money at a place therein named in the city of Jackson, on the night of the 20th day of January, 1910, he would be killed. In order to apprehend the writer of the letter, or effect the capture of the person calling for the package of money, complainant placed a decoy package at the place designated, and had it watched by officers. During the evening some person, then unknown to complainant, came and took possession of the package and made his escape. On January 21, 1910, complainant caused a reward of $1,000 to be offered for the arrest and conviction of the writer of such threatening letter. On the same day one Ray Horsman was arrested and charged with the crime of sending such threatening letter, to complainant, and on February 4, 1910, said Horsman pleaded guilty in the circuit court to an information charging him with said offense, and was sentenced to a term of imprisonment. Thereafter the defendants Maloney and Kurtz claimed that they furnished information that led to the arrest and conviction of Horsman, and that they were each entitled to one-half of said reward, to recover which they commenced an action at law against complainant in the circuit court. A like claim was made by defendant Clara McKain for all such reward, and a like action was by her commenced. Complainant represented by his bill that he had always been willing to pay the amount of such reward to such person or persons as should be lawfully entitled to the same, and he offered to bring the money into court. The bill complied with the practice by proper averments, and prayed that defendants interplead and settle and adjust their said demands between themselves. The money was paid into court, and the suits at law were restrained.

The answers of the several defendants admitted-the offering of the reward as alleged in the bill, and each claimed the fund. A decree was duly entered, to the effect that the bill of interpleader was properly filed, and that the several answers should be taken as and for an interpleader between defendants, and as statements of their respective claims. Upon the final hearing the entire reward was decreed to the two defendants Maloney and Kurtz, with costs against the defendant Clara McKain, and she has appealed.

Upon the hearing it appeared that the police made an unsuccessful attempt to arrest the person who tried to get the package, about 10 o’clock on the evening of January 20th, but he got away, and ran up the stréet; the officers shooting at him. He ran into an alley in the rear of the Athenaeum theater and escaped. Defendant Maloney and the son of defendant McKain attended a show at the Athenaeum on the evening in question, and sat together. Maloney had gone down on the street between acts, and while there the man pursued by the officers passed him, and Maloney testified that he recognized the man as Ray Horsman. Upon his return to the gallery he had talked the matter over with Mrs. McKain’s son, and had related what he saw. Maloney testified as follows:

“When I returned I said to him, ‘You ought to have been down there and seen the fun;’ he says, ‘What’s the matter?’ I says, T don’t know.’ I says, ‘There are two or three fellows after young Horsman;’ he says, ‘What Horsman?’ I says, ‘Young Ray Horsman.’ Neither of us could figure it out what it was. I told him what I saw, but we couldn’t tell what was the matter.”

Upon that point Mrs. McKain’s son testified:

“When they came up Maloney sat next to me and said there was something doing downstairs; said he saw a couple of men chasing some one else and they ran by him, and as they went by he got a glimpse of them, and the one pursued he said was ‘a dead ringer’ for Ray Horsman.”

Neither Maloney nor young McKain at this time knew anything of the “Black Hand” letter. The whole- matter appeared in the next morning’s newspaper, with a description of the attempted capture, the escape, and the offer of reward. Mrs. McKain saw this offer of reward about half past 6 on the morning of January 21st. Her attention was called to it by her son. He testified:

“I got up a little after 6 and got the paper off the porch; mother was getting breakfast, and that of course was the first thing I read; big scare lines on the first page of the Jackson Patriot; I read that, the gist of it. The first thing I saw was about the reward ; it was in the head lines, $1,000 reward. 1 said, T bet I can name the party.’ Read the description; it fitted Horsman to a T. I said I think I knew who it was, and mother said, ‘Do you?’ T will call up Strobel and get the reward.’* I said ‘No, you better not, better keep out of it; I don’t want to mix up in the affair and get up in court, one thing and another.’ She called Strobel up and talked with him as I was leaving the house, and I think she said he was coming up there to get all the information she had.”

Upon this subject Mrs. McKain testified as follows:

“I saw the morning Patriot at 6:30 in the morning of January 21st;_ my son read it to me, and later I saw it. He read it aloud; after he had read it he told me what he had heard at the Athenaeum the night before; what Mr. Maloney told him; said Mr. Maloney told him it was a ‘dead ringer’ for Ray Horsman; after this article had been read, and after this talk with my son, I called up Chief Strobel; my son had in his talk told me of Mr. Maloney being downstairs and seeing this man, and that he was most positive that it was Ray Horsman. I asked Chief Strobel if since the paper had gone to press he had found the ‘Black Hand’ man, and he said that he hadn’t; that he hadn’t any clue; I told him I could tell him who it was, and I did tell him; I told him it was Ray Horsman. He kind of doubted it. * * * He says, T will come over to your house,’ and he dropped the phone at that and did come over. * * * He says, ‘If you can tell me, Mrs. McKain, you can get $1,000; I will give you $1,000.’ I supposed he had the handling of the $1,000. I called him up simply to get the reward. * * * I think he came there about a quarter after 7. * * * While Mr. Strobel was there I called up my son at his request; he wanted to know if he was at the foot of the stairs, or if he was in the gallery; I called him up to find out; after I had talked with Mr. Strobel, he said, ‘You have convinced me.’ ”

She further testified that when Mr. Strobel was leaving, she might have told him to go and see Frank Maloney.

Upon this subject Mr. Strobel, chief of police, testified as follows:

“The morning of January 21st I received a telephone call from Mrs. McKain. I should judge somewhere between 6 and 7 o’clock, and we talked. * * * She told me then, or down at the house, I had better look up Ray Horsman, or words to that effect. * * * I went to Mrs. McKain’s house on Mason street, and had a talk with her there, and she related to me what her son Earl had told her about the affair; said Earl, as I remember it, was at the Athenaeum that night. She called him up; he had gone to work; she called him up and talked with him, and I asked Mrs. McKain whether Earl was sure it was Ray Horsman; she said, ‘Why, yes,’ she thought so. She says: ‘Go and see Frank Maloney; he knows all about it.’ I was not acquainted with Mr. Maloney; had seen him, but had no acquaintance; had been in his father’s store; I knew where he was located.”

The witness further testified: That the information which he received from Mrs. McKain was the first information received connecting Horsman with the black hand transactions; that she suggested that he see W. Frank Maloney, defendant. Pursuant to that suggestion witness went to Maloney’s store. When he got to the store he found defendant Maloney, his father, and defendant Kurtz. The two defendants Maloney and Kurtz were sitting together. That witness said to Frank Maloney,

“I understand you were out back of the Athenaeum last night when a couple of my officers were chasing a man.”

Witness told Maloney that he wanted to know what he saw there, and the latter went on and told witness that he was outside, standing on the walk on Washington street, somewhere near the stage entrance, near the end, and said he heard some shots fired, and pretty soon there was a man turned the corner by the post office and cut diagonally across the rear end of the Athenaeum, where he was standing, and ran around in the rear of the theater. Maloney said that just then there were several officers chasing the party around the corner of the post office.

“Maloney turned to Mr. Kurtz, and says: T have told my story; you tell your story/ ”

That defendant Kurtz went on and told witness that along about 10 o’clock a fellow came into the drug store where he worked and said: “Hide me, hide me.” That Kurtz asked the party what was the matter, and he replied, “Never mind, show me a place to hide.” That Kurtz told him to go into the back room, which he did, and a short time thereafter came out and wanted to borrow Kurtz’ overcoat, which he loaned him, and about an hour or so afterwards he brought the overcoat back. Witness testified that he then asked, “Who is that man,” and Kurtz said, “Ray Horsman.” It was the witness’ recollection that Kurtz first gave the name, but that both Kurtz and Maloney gave the name at the same time, and both agreed that the party was Ray Horsman. Soon after this interview with Maloney and Kurtz, witness arrested Horsman, and his confession and conviction followed. The witness further testified, in answer to a question, as follows:

“Q. When you did come from Maloney’s store to the dry goods store where Horsman was employed and made his arrest, you were relying upon the information obtained from Maloney and Kurtz? That is true, isn’t it?
“A. Yes; of course they were talking from what they personally saw — the other was hearsay; I don’t know as I stopped — I took all the information I had. I probably didn’t stop to think of that. I wouldn’t be justified in arresting a man on hearsay, I don’t suppose. * * * They told me their story mostly without asking a question, and there was no hesitancy when I asked who it was. When I went there I was keen on the scent, and anxious to find out just what the facts were; I lost no time in telling my errand there and asking what they knew, and as they were telling it along I asked such questions as.I saw fit. * * *
“Q. I suppose by the time he got that far with his story you had become so convinced you had the right man you didn’t wait to get the details of what he said about the black hand letters; you thought you would get that later; you were anxious to get away and arrest Horsman?
“A. Certainly; I didn’t expect to spend any more time than I had to.” •

The defendant Kurtz testified, in substance: That he had known Ray Horsman for some years, simply knew him to speak to him as he came into the store where witness worked; that about 10 o’clock of the evening of January 20th, while witness was in the front part of the store, and while it was raining, Horsman came running down the alley, and came running in the front door and said: “Ed., for God’s sake hide me.” Witness said, “What for?” “He said, ‘Hide me.’ ” “I says, ‘Go into the back room.’ ” He did go into the back room and stayed there about five minutes. Finally he came out and asked to borrow witness’ overcoat, and promised to bring it back before the store closed, after the play. He borrowed the coat, and as he was going out witness said: “Ray, what does this mean, what is the excitement?” He said, “Í can’t tell you about it,” and went out the front door. After the play was over Horsman brought the coat back and sat down at the soda counter and had a glass of ginger ale. Witness then said to him: “Ray, what does this mean, what is the occasion of your running in this way?”

He said:

“I will tell you. About two weeks ago I received a letter from Chicago telling me I should go to this place, * * * and get this package on Thursday night, January 20th, and on Friday night take it out on the corner of E. Main and Gorham street and throw it in between two stores.”

Witness said, “Ray, I think it is a joke.” Horsman said,

“Well, no, I don’t, because I got another letter Tuesday telling me not to forget Thursday night, January 20th, at 10 o’clock.”

Witness said,

“I think it is a joke all the way through, somebody has been putting over something on you.”

He said:

“I don’t know. Don’t say anything about it, will you, to any one?”

Witness asked Horsman if he got the package, and he said, “Yes, but during the shooting it scared me so I dropped the package,” and he stated that he had been shot at. The witness further testified that after Horsman had gone out of the store defendant Frank Maloney came in, and that he and witness talked about the matter, neither of them at that time knowing anything about the black hand letter, except what may have been told Kurtz by Horsman. The witness told Maloney that “the fellow came in here.” Maloney asked, “Who was it?” Witness said, “Ray Horsman.” That the next morning Maloney called the witness on the telephone as witness was dressing, and after witness was dressed he went' down to Maloney’s store, and Maloney asked him, “Did you know about the shooting?” And the witness replied, “Yes, what I know about last night;” and Maloney said, “Look at the paper.” That while glancing over the headlines of the paper Chief Strobel came in, and a little afterwards Lieutenant Hudson. That just before Strobel came in- Maloney said to the witness, “We better go over to the station.”

Defendant Maloney corroborated defendant Kurtz in his testimony, and, after testifying that he saw the paper on the morning of the 21st, and after he got down to the store he called up defendant Kurtz about 8:15 or 8:20 a. m., and that soon Mr. Kurtz came in, that Maloney showed him the paper and they were reading it over, and that it was their intention to go directly down to the station, to police headquarters, and tell what they knew about it, and that just about that time Chief Strobel and Lieutenant Hudson came in.

We have given somewhat in detail the evidence here to show the circumstances surrounding the transaction, as stated by the several witnesses.

It is the claim of the appellant that, she, having communicated the first information to the officer, is entitled to the whole of the reward, and that the money should be paid to the person who first communicated the information that ultimately led to the arrest and conviction; that it is not necessary, in order to entitle her to recover the entire reward, that she possessed or communicated facts sufficient to warrant an arrest and conviction, but that the meritorious question is: Who communicated the information that started the inquiry which led to the result obtained? On the other hand, it is the claim of the appellees that the mere communication of suspicions as to the guilt of a person whose arrest and conviction are secured by other evidence is not compliance with the terms of the offer.

Under the pleadings, we have treated this case as one where the reward was offered for the arrest and conviction of the offender. It is the claim of appellees that the service contemplated, by a person making such an offer, and which the proposal should be construed as meaning, must be the obtaining and giving to some proper person interested sufficient information in relation to the perpetrator of the crime as to authorize and secure the arrest of the offender, and subsequently to secure his conviction by a court of competent jurisdiction. And, as the communication of appellant to the officer was merely the communication of suspicions which of themselves did not induce the officer to make the arrest, that appellant is not entitled to any portion of the reward; that a reward for an arrest, is not rendered by information which has to be supplemented by investigation by others.

We have examined many of the reported cases upon this subject, as well as text-books, and find it difficult to reconcile all of the authorities. A leading case upon the subject is that of Haskell v. Davidson, 91 Me. 488 (40 Atl. 330, 42 L. R. A. 155, 64 Am. St. Rep. 254). In that case the defendant was one of 30 citizens who agreed to pay a certain sum each as the reward for the arrest and conviction of a person, or persons, who had entered the room of one Wilson and stolen money therefrom. The plaintiffs were informed of this offer, and were thereby induced to enter upon an investigation of the crime referred to, as a result of which facts and circumstances were discovered by them tending strongly to inculpate one Thompson, who, upon being confronted with the charge by plaintiffs, made a full confession of his guilt, and subsequently pleaded guilty to the indictment found against him. The court there said:

“An offer of reward is a proposal. The party making it may insert his own terms, and no person can become entitled to the reward without a performance of all the terms contained in the proposal. But such performance need not be a literal compliance with the terms of the offer. It is sufficient, if'the party claiming the reward has substantially performed the service required by the proposal.
“An offer of a reward for ‘the arrest and conviction’ of an offender cannot be taken literally. The person who by reason of the offer is induced to make an investigation and finally obtains possession of sufficient facts to authorize the arrest of an offender and his subsequent conviction for the crime referred to in the offer, certainly cannot himself convict the offender. The service contemplated by a person making such an offer, and which the proposal should be construed as meaning, must be, the obtaining an d-giv.ing to some proper person, interested, sufficient information inTelationto the perpetrator of the crime and his whereabouts as to authorize and secure the arrest of the offender, and subsequently to procure his conviction by a court of competent jurisdiction.
“In Crawshaw v. Roxbury, 7 Gray [Mass.], 374, the offer was ‘for the apprehension and conviction.’ The court at nisi prius instructed the jury, in regard to the service to be performed to entitle the plaintiff to a reward, that the offer of a reward could not be taken literally, for, as the conviction must be in due course of law, requiring the intervention of the court and jury, a person might be entitled to the reward by becoming the prosecutor, and, as such, causing the arrest and conducting the case to a conviction; or he might be entitled to it by giving information which would lead to and produce the arrest and conviction of the offender. The instruction was unqualifiedly sustained by the full court. See, also, to the same effect, Besse v. Dyer, 9 Allen [Mass.], 151 [85 Am. Dec. 747].”

See, also, Shuey v. United States, 92 U. S. 73. This was a case where the offer of reward was for the apprehension of John H. Surratt, one of Booth’s accomplices.

It appears to us that the reward should be paid, to the person who was, or persons who were, the original and meritorious cause of the arrest and conviction of the offender; that is, the person or persons who first communicated the information that ultimately led to both. Fitch v. Snedaker, 38 N. Y. 248 (97 Am. Dec. 791); Burke v. Wells Fargo Co., 50 Cal. 218; 24 Am. & Eng. Enc. Law (2d Ed.), p. 956, and cases cited; 34 Cyc. p. 1746 et seq.; Kinn v. First Nat. Bank, 118 Wis. 537 (95 N. W. 969, 99 Am. St. Rep. 1012). Some of the authorities make the test depend upon the inducing, or the proximate, cause of the arrest, and turn upon the question whether sufficient information to authorize arrest and subsequent conviction was given, claiming that the facts disclosed must be such as induced the officer to make the arrest.

Bearing in mind that the reward offered here was for the arrest and conviction of the guilty party, there is some difficulty in determining just what was the moving cause of the act of arrest. Of course the confession having followed the arrest, we are not concerned about the conviction. We gather from the testimony of the officer that he would not have made the arrest solely upon the statement of Mrs. McKain, yet he testifies, referring to his talk with Maloney and Kurtz, as follows:

“When I went there I was keen on the scent, and anxious to find out as quick as I could just what the facts were. I lost no time in telling my errand there and asking what they knew.”

A careful consideration of the entire record has led us to the conclusion that all three of the defendants may be said to have contributed to the arrest and conviction of Horsman, and that this is a case for the apportionment of the reward. There was concert of action. Manifestly, it was the early statement made by defendant McKain which set the officer at work and led to so speedy a result. It cannot be said that in a sense Mrs. McKain was not the moving cause. We have no doubt, from the testimony, that she referred the officer to Maloney as the true source of information which would justify the result. We cannot speculate and say, as matter of law or fact, that the officer would have obtained this information from Maloney and Kurtz without the intervention of Mrs. McKain. There might have been much delay in reaching results had not Mrs. McKain given the first information and reference to the source of evidence which led the officer to act. In our judgment, there was such concert of action here as brings this case within the rule of apportionment, under the authorities. Practically, in this case, it appears that it was the information furnished by all of the defendants which led to the result — not a repetition of the same information, but information of independent facts. It was Mrs. McKain who alone referred the officer to defendant Maloney, and he in turn referred to Kurtz as corroborating his statement of the facts which were deemed sufficient to warrant the arrest. It was said by an able English judge that the reward should be divided among such persons as gave information and assistance in proportion to the value of their services. Here each one performed a part in the entire transaction. Fargo v. Arthur, 43 How. Prac. (N. Y.) 193; Goldsborough, Adm’r, v. Cradie, 28 Md. 477; Elkhorn Valley Lodge v. Hudson, 59 Neb. 672 (81 N. W. 859); 24 Am. & Eng. Enc. Law (2d Ed.), p. 959, and cases cited; 34 Cyc. p. 1750.

There seems to be no arbitrary rule for the division of the reward under circumstances like the present. The distribution should be equitable. We deem it equitable and just in this case, and shall so direct that one-half of the reward, now deposited in the court, shall be paid to the appellant, Mrs. McKain, and the remaining one-half to the defendants Kurtz and Maloney. No costs in the court below will be taxed against appellant, and she will be given her costs of this court to be taxed against appellees, and the decree below will be reversed, and one entered here in accordance with this opinion.

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


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
    G. F. SANBORN CO. v. RICHTER.
    Taxation — Redemption—Notice—Chain of Title.
    In order to cut off the right of redemption from a tax sale, the holder of the tax title must serve notice on all persons entitled thereto. The grantee under the last recorded deed in the regular chain of title is one of the parties entitled to notice and the provision is not met by service on a later grantee in certain tax deeds issued by the State.
    Appeal from Ontonagon; Cooper, J.
    Submitted June 11, 1913.
    (Docket No. 71.)
    Decided July 18, 1913.
    Bill by G. F. Sanborn Company against Theodore Richter and another for redemption from certain tax purchases. From a decree for complainant, defendants appeal.
    Affirmed.

      John Jones, for appellants.

      Stone & Wieder, for appellee.
    Complainant is the owner through mesne conveyances of tax titles for the years 1891-1898, inclusive, covering the S. W. section 19, township 49 north, of range 41 west, in the county of Ontonagon. Defendants are owners by purchase from Henry A. Gunderson of tax titles covering the same description for the years 1899-1901, inclusive. For these titles Gunderson paid the State the sum of $129.58. On July 16, 1908, complainant caused to be paid to the register in chancery for Ontonagon county the sum of $266.46; that being the amount necessary to redeem from the Gunderson titles under section 141 of the general tax law of the State (Act No. 236, Pub. Acts 1903). Defendants were duly notified of this deposit by the register, and a quitclaim deed was demanded.
    The regular chain of title shows that the land in question was patented to Jacob Schwartz June 15, 1852, by him deeded to the American Mining Company August 13, 1852, and by said company deeded to the Derby Mining Company March 16, 1855. The last-named company is the grantee in the last-recorded deed in the regular chain of title. It is a Michigan corporation, whose office for the transaction of business in this State was, by its articles of association, located in the county of Ontonagon.
    Defendants having refused to reconvey, the bill in this cause was filed. It is the contention of defendants that Gunderson, their grantor, served a valid notice to redeem from his t-ax title purchases upon all persons required by the statute. The proof of service follows:
    “Proof of Service by Registered Mail:
    “State of Michigan, County of Ontonagon — ss.:
    “I do hereby certify and return, that on the 26th day of September, A. D. 1904, I served a copy of the foregoing notice on Cazenovia Land Company, Milwaukee, Wis., who are the grantees under the last recorded deed issued by the auditor general upon the within described land by depositing in the post office at the village of Ontonagon in said county for transmission through the United States mail one registered letter same containing a true copy of said notice properly addressed to said above named persons as follows: Cazenovia Land Co., Milwaukee, Wis., receipt for which said registered letter is hereto annexed and forms a part of this return.
    “William McFarlane, Sheriff of said
    County.
    “My fees, $1.20. Dated October 17, 1904.
    “Proof of Failure of Service, Personal and Mail:
    “State of Michigan, County of Ontonagon — ss.:
    “I do hereby certify and return that after careful inquiry I am unable to ascertain the whereabouts or post office address of American Mining Company -, in the regular chain of title to the foregoing described land- grantee named in the last recorded deed or-or-or of the heir-of said grantee, or the whereabouts or the post office address of the executor, administrator, trustee, or guardian of such grantee, mortgagee or assignee upon the foregoing described land.
    “William McFarlane, Sheriff of said County.
    “My fees, $1.10. Dated October 17, 1904.”
    From a decree in favor of complainant, defendants appeal. ,
   Brooke, J.

(after stating the facts). The only question involved in this cause is whether it was necessary for defendant’s grantor, Gunderson, to make service of the notice upon the Derby Mining Company; that company being the grantee in the last-recorded deed in the regular chain of title. It seems to be the contention of defendants that service upon the Derby Mining Company was not necessary because the title of that company had been completely cut off by a series of sales to the Cazenovia Land Company, through which company complainant derives title. It is likewise contended that a fair analysis of the term “regular chain of title” shows it to mean “the original title passed on through a series of legal, regular steps, following each other in natural sequence; that the purchase of a tax title under the law as it was prior to Act 229 of 1897, if valid, so that the deed when received conveyed the fee title to the land, is just as much a step or deed in the regular chain of title as any other conveyance can be, whether voluntary or involuntary.” In our opinion neither of these contentions is tenable.

The first presupposes the regularity and legality of the tax sales to the Cazenovia Land Company, and that under the law as it then stood the Derby Mining Company was precluded from contesting their validity. The second position is foreclosed against defendant’s contention by the case of Griffin v. Jackson, 145 Mich. 23 (108 N. W. 438, 9 Am. & Eng. Ann. Cas. 74), where this court, speaking through Justice Hooker, said:

“We are of the opinion that by ‘regular chain of title’ was meant the chain of title based upon the patent.”

The statute (section 140 of the general tax law) provides for service of the notice upon “the grantee or grantees under the last recorded deed in the regular chain of title to said land, and upon the grantee or grantees under the last recorded tax deed issued by the auditor general,” etc. This language is so plain as to render construction unnecessary. Defendant’s grantor, Gunderson, evidently understood the statute requirements, for he made an attempt to serve the notice upon the American Mining Company, the grantor of the Derby Mining Company, apparently being under the impression that the American Mining Company was the grantee in the last-recorded deed in the regular chain of title.

Until the statutory notice is served upon all parties entitled thereto and proof thereof is made and filed, the right of redemption remains to all. Hansen v. Hall, 167 Mich. 7 (132 N. W. 657), and cases there cited.

The decree is affirmed, with costs.

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


text:
    KINGSTON v. BUSCH.
    1. Deeds — Restrictive Conditions — Covenants—Building Restrictions.
    Under restrictions contained in a deed prohibiting the erection of a saloon or store, or of any dwelling house of less value than $2,000, upon the premises conveyed, a duplex or two-family residence could not be constructed on the lot.
    2. Words and Phrases — Definition—Dwelling House.
    A dwelling house means a building designed as a single dwelling to be used by one family.
    Appeal from Wayne; Mandell, J.
    Submitted June 19, 1913.
    (Docket No. 22.)
    Decided July 18, 1913.
    Bill by Samuel R. Kingston and others against Charles A. Busch and another for an injunction. From a decree for complainants, defendants appeal.
    Affirmed.

      N. Calvin Bigelow, for complainants.

      Walter Barlow, for defendants.
   Brooke, J.

The bill of complaint in this cause is filed to enjoin defendants from erecting upon a certain lot “any building other than a single dwelling house intended for the occupancy of one family.”

The restriction in the deeds running to complainants is as follows:

“That said premises shall be used for residence purposes only; that no dwelling house shall be erected thereon at a cost of less than $2,000; and that no building or part of building shall be erected on said premises within 15 feet from the front or Josephine avenue line of said premises.”

The restriction contained in the deed to defendants is as follows:

“This deed is made upon the express condition that if the said second party, his heirs, or assigns erect or suffer to be erected any saloon or store, or erect or suffer to be erected any dwelling house of a value of less than $2,000, or less than 15 feet from the street line upon the premises hereby conveyed within 99 years from the date hereof, then in that case the title of the premises hereby conveyed shall revert to the feaid first parties, and the said first parties may re-enter upon said premises and remove said second party, his heirs, or assigns.”

Defendants proposed to erect a “duplex” or two-family residence. After a full hearing in open court the learned circuit judge who heard the case filed the following opinion:

“I am of the opinion that this case is ruled by Harris v. Roraback, 137 Mich. 292 [100 N. W. 391, 109 Am. St. Rep. 681], wherein, construing the language used in accordance with the evident intention of the parties, it was held that one dwelling house on each lot meant a building planned and designed as a single dwelling, to be used by one family, and also by Bagnall v. Young, 151 Mich. 69 [114 N. W. 674], wherein it was held that the restriction in the deed against building anything on the premises except a two-story dwelling house prevented the grantee from erecting a two-story double dwelling house to be occupied by two families.
“The cases of Tillotson v. Gregory, 151 Mich. 128 [114 N. W. 1025], James v. Irvine [141 Mich. 376, 104 N. W. 631], and Harris v. Roraback, 137 Mich. 292 [100 N. W. 391, 109 Am. St. Rep. 681], relied upon by the defendants, recognize these principles, but injunctions were denied in both cases because no general plan had been observed in the respective neighborhoods, and certain violations of the restrictions had been permitted by lot owners and complainant, which indicated binding constructions put by them upon the restrictions different from those sought in the court proceedings.
“In the case at bar all buildings erected in the subdivision have conformed strictly with the restrictions construed as urged herein by the complainants. In my opinion the language used in the deed of defendants’ grantor construed in accordance with the first-cited cases means that no building shall be erected except a single dwelling house. It follows that as the building defendants proposed to erect does not conform with this construction its erection should be enjoined. A decree will be entered for the complainants, perpetually restraining the defendants from prosecuting the work undertaken.”

In the subdivision in question there are 70 lots. These lots so far as built upon have been subjected to one or other of the restrictive clauses, supra. But 21 lots and two parts of lots have been sold subject to the restrictive clauses. The balance is still in the hands of two owners-, who themselves imposed the restrictions upon those to whom they sold. We are of opinion that a general plan of improvement is clearly indicated, and that there has been no departure from that plan. The plan was to have one residence for one family only upon each lot.

The contention that the words “any dwelling house” should receive a different construction in this connection from the words “a dwelling house” is not tenable. This case is ruled by Schadt v. Brill, 173 Mich. 647 (139 N. W. 878).

The decree is affirmed, with costs.

Steere, C. J., and Moore, McAlvay, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


author: Stone, J.

text:
    GALVIN v. DETROIT STEERING WHEEL & WINDSHIELD CO.
    1. Master and Servant — Corporations—Contracts—Salary— Parol Evidence — Oral Agreement — Frauds, Statute of.
    Where several incorporators entered into a written contract providing that plaintiff should have charge of and manage the foundry of a corporation which was not yet organized, and it was not determined what his salary or term of employment should he, in an action for wrongful discharge plaintiff was entitled to introduce testimony to show a subsequent oral agreement of the corporation to pay him $1,500 a year, and that the term of employment should be a year: nor was the contract void under the statute of frauds, performance being possible within a year.

    2. Corporations — Manager—President—Principal and Agent.
    Evidence that the president of a corporation took charge of and conducted its business, made contracts and performed the duties of general manager, that all the officers and directors knew plaintiff had been employed to superintend the foundry, and knew of payments of salary that were made to plaintiff, supported the finding of the jury that the president was authorized to hire plaintiff.
    3. Same — De Facto Organization — Recording Articles.
    Whether or not the corporate organization was perfected before the execution of plaintiff’s contract of employment, defendant was liable for services thereafter performed under the contract, its officers and directors hav-. ing notice, and the parties having dealt with defendant as a corporation.
    Error to Wayne; Murphy, J.
    Submitted June 20, 1913.
    (Docket No. 41.)
    Decided July 18, 1913.

      Assumpsit by Thaddeus Galvin against the Detroit Steering Wheel & Windshield Company for breach of a contract of employment. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Choate, Webster, Robertson & Lehmann, for appellant.

      Washington I. Robinson, for appellee.

       As to the time for which contracts of employment may be made on behalf of a corporation by its officers, directors, and agents, see note in 49 L. R. A. 471.

   Stone, J.

A reference to the declaration and bill of particulars in this case shows that the action was in assumpsit to recover a balance claimed to be due plaintiff for salary due from the defendant by reason of a wrongful discharge of plaintiff from service. The balance claimed covered the period from March 15, 1910, to November 11, 1910, according to the terms of an alleged contract entered into whereby plaintiff was to be employed for the period of one year from and after November 11, 1909 (upon the trial amended to read November 12, 1909), at the rate of $1,500 per year. Also for money claimed to be due plaintiff from defendant for supplying basic mixture and manufacturing manganese bronze according to the terms of a certain contract. There was originally a further claim for certain royalties due the plaintiff on certain patents under a written contract between the parties, but during the trial, after a considerable colloquy between the court and counsel, all of the last-named claim was withdrawn from the consideration of the jury; the court in the presence of the jury saying:

“Then, by consent, all the testimony in_ the case given by the plaintiff in behalf of the plaintiff and on behalf of the defendant relating to the issue of patents is stricken out, gentlemen of the jury, and withdrawn from your consideration, and you are to endeavor to remove it from your minds as if it had not been introduced at all.”

The case thereafter proceeded under the claims for salary, and the amount due for the manufacture of manganese.

It appears that for a number of years prior to November, 1909, the plaintiff and his son were the principal owners of the Galvin Brass Company, engaged in manufacturing automobile windshields, at Detroit. Albert S. Keen and two others were copartners manufacturing automobile steering wheels.

On November 4, 1909, a written agreement was signed by the plaintiff and the members of the said copartnership. This agreement provided for the formation of a corporation to be known as the Detroit Steering Wheel & Windshield Company on or before January 1, 1910. It also provided that the plaintiff should be elected vice president of the company and should have charge of its foundry. Under date of November 11, 1909, the articles of incorporation of the defendant company were signed and acknowledged. They were filed with the secretary of State November 13, 1909, and with the county clerk November 16, 1909. Of the 5,000 shares of stock subscribed for, Albert S. Keen held individually 1,750 and as trustee 1,000 shares, and he was elected the president of the company. It was the claim of the plaintiff, and he gave evidence tending to show, that Albert S. Keen from the start handled the business of the corporation and made the contracts. There is some question whether the articles of incorporation were in fact executed on November 11th or 12th.

The claim of the plaintiff upon the trial was that on November 12, 1909, and after the articles were executed, and after Mr. Keen had been elected the president, a verbal contract of employment of plaintiff 'was entered into with defendant company, acting by and through Mr. Keen, its president, by the terms of which plaintiff was to have charge of defendant’s foundry for one year with a salary of $1,500; that he entered upon the performance of the contract of employment, receiving his pay weekly at the rate of $1,500 a year, and continued in such employment until March 21, 1910, when he was discharged by the president. Upon the trial Mr. Keen swore that he hired the plaintiff but claimed that it was a monthly hiring. He did not deny, but testified, that plaintiff entered the employment of defendant and continued until he was by him discharged in March, 1910. There was much conflict in the evidence.

The case was submitted to the jury upon a full and fair charge, and a verdict was rendered for the plaintiff for the remainder of the year’s salary, amounting to $1,046.46; the jury having disallowed the claim for manganese. There was a motion for a new trial which was denied, which denial was excepted to, and the defendant has brought the case here for review upon writ of error.

The statement of the facts in appellant’s brief is very unsatisfactory, and there seems to have been no attempt to comply with rule 40. We have, however, examined the record and shall consider the three principal questions in the case.

Under the assignments of error based upon the refusal of the court to direct a verdict for the defendant at the conclusion of plaintiff’s testimony and at the conclusion of the entire case, counsel for appellant say:

“These assignments raise the main question in this case as to the oral agreements being within the statute of frauds, as to the authority of the officer of the defendant company to make the agreements, and as to the validity of the agreements because made before the complete organization of the company. There are three verbal or oral agreements testified to by plaintiff and denied by defendant, one on November 4, 1909, another November 11, 1909, and another on November 12, 1909. The written agreement of November 4, 1909, provided for the employment of the plaintiff generally but is wholly silent as to the salary or term of employment.”

1. We have already stated that the agreement of November 4, 1909, made before the articles of incorporation were executed, and made not by the defendant but by the proposed incorporators, provided that the plaintiff should have charge of the foundry. We agree with counsel that it was entirely silent as to salary or term of employment. We do not understand that the plaintiff relies upon this agreement or upon any oral agreement of that date for recovery here, but upon an oral agreement claimed to have been made on November 11th or 12th (the exact date being indefinite) and after the articles were executed and after Mr. Keen was elected president. Notwithstanding any agreement which may have existed between the incorporators, it is difficult to understand why a subsequent valid oral agreement may not have been made with the defendant. That was the question which the court submitted to the jury. The court in its charge said:

“It is the plaintiff’s claim that he had an oral contract of employment for the term of one year, beginning November 12, 1909, at a fixed sum of $1,500 a year. And it is his claim that, that contract having been entered into, he was improperly discharged on the 21st day of March, 1910.”

We cannot agree with the contention that the statute of frauds has any application here. The only agreement submitted to the jury was one to be performed within one year.

2. Was there authority in Mr. Keen, under the circumstances, to make the agreement claimed for the defendant? The record is silent as to any action on the subject by the directors. The plaintiff claimed and testified that from the first Mr. Keen took charge of and handled the business and made the contracts for the defendant and was really the general manager, and that all of the directors and officers knew of plaintiff’s employment and of payments made to him. We think there was evidence of authority in Mr. Keen, as president and manager, to make the contract, and that the following cases support that view: Adams Mining Co. v. Senter, 26 Mich. 73-76; Eureka Iron & Steel Works v. Bresnahan, 60 Mich. 332 (27 N. W. 524); Whitaker v. Kilroy, 70 Mich. 635 (38 N. W. 606); Ceeder v. Lumber Co., 86 Mich. 541 (49 N. W. 575, 24 Am. St. Rep. 134); 10 Cyc. p. 909.

It may also be said that the acts of Mr. Keen were ratified by the directors and officers. We have examined the cases cited by appellant, and do not think that they are controlling of the instant case.

3. Was the claimed contract made before the complete organization of the defendant company? The articles of incorporation are not contained in the record. We understand, however, that the defendant was organized under the provisions of Act No. 232, Pub. Acts 1903 (4 How. Stat. [2d Ed.] § 9532 et seq.). Section 9 of that act provides as follows:

“Before any corporation, organized under this act to operate in this State, shall commence business, the president shall cause the articles of association to be recorded, at the expense of said corporation, in the office of the secretary of State of this State, and in the office of the county clerk of the county in which such operations are to be carried on.”

We are of opinion that what we said and held in Newcomb-Endicott Co. v. Fee, 167 Mich. 574 (133 N. W. 540), is applicable here, and that this question is governed by that case.

We have examined the other assignments of error. Many of them are not based upon any exception. The charge of the court sufficiently covered such of defendant’s requests to charge as correctly stated the law applicable to the case. The court did not err in refusing the motion for a new trial.

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

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


author: Steere, C. J.

text:
    ISLAND MILL LUMBER CO. v. CITY OF ALPENA.
    1. Taxation — Valuation for Purposes of Assessment — Fraud.
    Evidence that the assessed valuation of plaintiff’s real estate was increased by the State tax commission from $20,000 to $35,000, that the property was worth from $20,000 to $25,000, that other property was similarly treated at the same time, so that plaintiff’s total taxes were reduced, that the State tax commission had at the same time raised the total assessed valuation of the city from $6,071,380, as fixed by the local authorities, to $9,417,245, is insufficient to show fraud or bad faith.
    2. Same.
    It will be presumed that the members of the tax commission exercised honesty and their best judgment in performing their official duty: the burden is on the plaintiff, in an action to recover back taxes paid under protest, to establish fraud, which cannot be inferred from a mere difference in judgment.
    3. Fraud — Evidence—Taxation.
    An assessment is not fraudulent merely because the valuation is excessive, unless an improper motive is shown: but if it is purposely made too high through prejudice or a reckless disregard of duty, in opposition to what must necessarily be the judgment of all competent persons, that tax is invalid.

      Error to Alpena; Emerick, J.
    Submitted June 16, 1913.
    (Docket No. 128.)
    Decided July 18, 1913.
    Assumpsit by the Island Mill Lumber Company against the city of Alpena for the recovery of taxes paid under protest. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Joseph H. Cobb, for appellant.

      Guy D. Henry, for appellee.
   Steere, C. J.

Plaintiff, a Michigan corporation owning property and engaged in the lumber business in the city of Alpena, brought this action against said city to recover back an amount of taxes paid under duress and protest, claiming that the same had been fraudulently assessed by reason of intentional overvaluation of the property upon which the taxes were levied. The case was tried before a jury in the circuit court of Alpena county on September 17, 1912, and at the conclusion of the evidence the court directed a verdict for defendant on the ground that the testimony produced by plaintiff was not sufficient to raise an issue of fact on the question of wilful, intentional, and fraudulent overvaluation of plaintiff’s property for taxation purposes.

Plaintiff’s assignments of error all relate to the charge of the court in directing a verdict in favor of defendant and present the single question of whether there was probative testimony in the case which tended to show a fraudulent assessment and so raising an issue of fact which should have been submitted to the jury.

For the year 1911 the local assessing officers of Alpena, consisting of the city controller and board of review, assessed taxes against defendant’s real estate on a valuation of $20,000 and against its personal property on a valuation of $54,000. Under the law upon that subject, the assessment roll was completed earlier for city than for State and county taxes; the latter not being equalized, apportioned, and spread until fall. Only the State and county taxes are involved in this controversy; it being stated in its counsel’s brief, and not controverted, that plaintiff paid the city and school taxes assessed against it in July on the valuations as made by the local officers.

Before the time arrived for equalizing, apportioning, and spreading the State and county taxes upon the assessment roll, the board of State tax commissioners reviewed the roll, under the authority given said board by statute, and appraised the property throughout the city for taxation purposes, which resulted in an increase of the aggregate assessed valúa?, tion throughout the city of 55 per cent. In this review of the roll plaintiff’s real estate was valued for taxation at $35,000 and its personal property at $64,500. The State and county taxes were levied and spread upon such revision of the roll and revaluation. Plaintiff declined to pay its taxes on that basis, and the city treasurer levied upon and was about to sell certain of its personal property to collect such taxes, when plaintiff paid them under protest as stated.

Plaintiff’s declaration charges fraudulent assessment of both its real and personal property. During the progress of the trial plaintiff’s counsel stated no objection was raised as to the latter, but it was the contention that the board of State tax commissioners had acted knowingly, intentionally, and fraudulently in fixing the valuation on plaintiff’s real estate for taxation purposes, as shown. In support of this contention, plaintiff introduced the testimony of three witnesses as to value: R. H. Rayburn, its president and manager; William H. Campbell, its vice president; and William Marion, the superintendent of another sawmill in the city. The two officers of plaintiff placed the valúe of its real estate at $20,000, Marion at from $20,000 to $25,000.

These witnesses made comparison of plaintiff’s mill with other mills with somewhat varying views. The witnesses were parties interested in the taxation of such property. They were giving their estimate and judgment of valuations from their point of view. To review their examinations and cross-examinations, with a view of weighing the relative strength or weakness of their testimony, would be foreign to this inquiry. If their testimony, taken at its strongest, had any probative force to establish fraudulent conduct on the part of the tax commission, it was for the jury to weigh. We must assume that they testified honestly, as they viewed the matter, and gave their best judgment. The assumption of honesty and the exercise of their best judgment obtains also as to the members of the tax commission in the performance of their official duties, and with it goes extensive experience throughout the State in reviewing tax rolls and appraising property for taxation purposes. The burden is upon the plaintiff to prove to the contrary and show fraud. Does the shown diversity of opinion between these parties as to values raise that issue? Fraud cannot be predicated upon or inferred from an honest difference in judgment. Aside from the overvaluation, according to plaintiff’s witnesses, there is no evidence of design against plaintiff or of a discriminating overvaluation to its injury from which wrongful or fraudulent purpose or intent is to be inferred. The result of this revision of the assessment roll indicates the contrary. Plaintiff was benefited by it, taken as a whole.

The entire assessment roll of the city of Alpena was in evidence and before the court showing the valuation first made by the local officers and as revised by the commission. As bearing on the question of wilful, intentional, and fraudulent assessment, it was proper evidence to consider in passing upon the probative force of the testimony of plaintiffs witnesses and in determining whether it tended to raise an issue upon that question. By this assessment roll it is shown that the whole amount of taxes to be levied that year was $75,322.20. The assessed valuation of taxable property as fixed by the local assessors was $6,071,380, made up of real property $4,056,665 and personal $2,014,725; the rate of State and county taxes on such basis being .0124. As raised and fixed by the State tax commission, the total assessed valuation of taxable property was $9,417,245 (an increase of $3,071,380), made up of real property $6,392,895 and personal $3,024,350; the rate of State and county taxes on such basis being .008.per cent.

Plaintiffs taxes on real estate as valued by the local assessors would be $248, and as valued by the tax commission was $280, or an increase of $32; but plaintiffs taxes on personal property as valued by the local assessors would be $675.80 and as valued by the tax commission $516, or a reduction of $159.80. As a total result of the action of the tax commission in revising the assessment roll of that year, plaintiff’s entire taxes were reduced $127.80.

When the only claim of proof of fraud is the inference to be drawn from proof of overvaluation, we think the above result is proper to consider in deter-: mining whether or not any inferences of intentional fraud or injury can be legitimately drawn from the evidence in the case considered as a whole. Fraud cannot be presumed from mere suspicion nor from facts and circumstances which are entirely consistent with an honest purpose. Henneberger v. Matter, 88 Mich. 396 (50 N. W. 369).

Counsel for plaintiff contend that the question of fraud is never a question of law but is always held by all courts to be a question of fact for the jury, citing numerous cases. This is unquestionably correct, when there is in the case legitimate evidence of fraud to raise the issue, but whether or not there is any probative evidence of fraud in the case is a question oif law for the court. Fraud is never presumed; there must be evidence tending to prove it. The law upon the question of fraudulent overvaluation for taxation purposes is well settled in this State. It must be something more than an honest mistake in judgment to defeat a tax.

In 2 Cooley on Taxation (3d Ed.), p. 1459, it is said:

“An assessment is not fraudulent merely because of being excessive, if the assessors have not acted from improper motive; but if it is purposely made too high through prejudice or a reckless disregard of duty in opposition to what must necessarily be the judgment of all competent persons, * * * the case is a plain one for the equitable remedy by injunction.”

In such case the tax is necessarily invalid.

The above rule has been quoted by this court with approval and consistently followed. The subject is exhaustively discussed, with citation of numerous authorities, in Pioneer Iron Co. v. City of Negaunee, 116 Mich. 430 (74 N. W. 700), and City of Muskegon v. Boyce, 123 Mich. 535 (82 N. W. 264).

Considering the testimony produced in this case in its most favorable aspect for plaintiff, we conclude, with the trial court, that it fails to present any evidence legitimately tending to sustain the charge that the board of State tax commissioners, in disregard of duty, recklessly, intentionally and fraudulently overvalued plaintiff’s property for taxation, or that thereby plaintiff was compelled to pay .more than its just proportion of the taxes.

The action of the trial court in directing a verdict for defendant is sustained, and the judgment is affirmed.

Moore, McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


author: Kuhn, J.

text:
    ROBSON v. TOWNLEY.
    1. Mortgages — Deed as Security — Vendor and Purchaser — Estates by Entirety.
    In a suit for partition brought by one of the heirs of decedent, who had executed a deed of his farm to a third party, receiving back a contract for reconveyance to decedent and his wife by the entirety, the purpose being to secure the grantee for money advanced, the rights of the parties are to be determined by the contract, and although the deed was in the nature of a mortgage or security for a debt, the rights of decedent passed at his death to the wife, and the children obtained no interest in the real property.
    2. Same — Waiver—Husband and Wife.
    The wife did not waive her legal rights by accepting a quitclaim deed from the grantee or mortgagee, upon full performance of the contract.
    Appeal from Chippewa; Shepherd, J.
    Submitted June 12, 1913.
    (Docket No. 86.)
    Decided July 18, 1913.
    Rehearing denied January 5, 1914.
    Bill by John Robson against Margaret Townley and others for partition. From a decree for defendants, complainant appeals.
    Affirmed.

      George P. Stone and George A. Cady, for complainant.

      M. M. Larmonth and H. L. Parsille, for defendants.
   Kuhn, J.

The circuit judge who heard this case filed the following statement of facts, which concisely gives the history of the transactions which led up to this litigation:

“On or about April 10, 1880, William Robson made homestead entry for the land described in the bill of complaint in this cause, and made final proof thereon April 2, 1887. On May 5, 1887, the records show that Robson and his wife, Elizabeth, mortgaged this land to .the Sault Savings Bank of this city, which mortgage was foreclosed and the sheriff’s deed executed to said mortgagee on August 4, 1890. On July 29, 1891, Robson and his wife executed a quitclaim deed conveying the land to Norman H. Wells. On August 1, 1891, the land was redeemed from the sheriff’s sale, and the mortgage to the Sault Savings Bank thereby discharged. On March 10, 1894, a suit was instituted by Robson to have the deed to Wells declared a mortgage. In a cross-bill filed in this suit by Wells, he admits the transaction was a mortgage in effect, and prays for the foreclosure of the same. And on February 17, 1897, a decree was entered declaring the deed to be a mortgage, and providing for the foreclosure sale and immediate possession to be given to the purchaser at any time after July 1, 1897. On August 13, 1897, Robson and wife executed a special warranty deed running to David Brown; the special clause being the exception in the warranty of the mortgage given to Norman H. Wells. On September 25, 1897, David Brown, William Robson, and Elizabeth Robson entered into a contract whereby, upon payment of a stipulated amount to be made in payments and at times therein stipulated, Brown was to convey to William Robson and Elizabeth Robson, his wife, by warranty deed, the said land free and clear of all incumbrance, except such as may have accrued upon said land subsequent to that date, or through the acts or negligence of the parties of the second part. All the payments on this contract were made by Elizabeth Robson and all the receipts taken in her name, individually. On June 22, 1901, Elizabeth Robson, individually, executed a mortgage to the Sault Savings Bank in the sum of $930, and on the same day a quitclaim deed, executed by David Brown and wife, was given to Elizabeth Robson. On August 16, 1901, William’ Robson died. On April 18, 1903, Mrs. Robson executed in proper form a will devising the land to the three boys who had remained on the farm, dividing the land equally among them. On June 4, 1911, Mrs. Robson died. Referring to the date upon which the deed from William Robson and Ms wife to Brown was made, it appears that on the last day, to save the farm from the sale under the Wells mortgage, William Robson and his wife called upon Brown at his home and implored him to save the farm; that Mrs. Robson conducted the business for the family; that Mr. Robson was a heavy drinker and could not be trusted with money; that an arrangement was effected whereby Brown took up the Wells mortgage, paying Wells himself, and also took a warranty deed from Robson and wife, subject to the Wells mortgage. There is nothing in the testimony to show why the contract for a resale or instrument of defeasance was dated over a month subsequent to the execution of the deed to Brown. No explanation is given why it provided for a reconveyance to Robson and wife rather than to Robson alone.”

The bill of complaint is filed to obtain a decree declaring the deed from Willi'am Robson and wife to Brown to have been a mortgage, and adjudging that William Robson died seised of the title in fee to the land in question, subject only to the mortgage to the bank and the dower rights of the widow; and that at the death of Elizabeth Robson the 10 surviving children and heirs at law of William Robson were seised of an indefeasible title and right of possession, as such heirs, to ten-elevenths of the premises. There were 11 children, but one daughter died about 2% years after the death of the father, and at the time of her. death was above the age of 21 years, unmarried, and left no heirs of her body. The bill prayed that the land might by said decree be partitioned to them,, respectively, as their respective rights and interests might appear.

It is the contention of the complainant that William Robson, Sr., never parted with the fee title to the land in question, and the deed to Brown and the contract given by him to Robson and wife together constituted a mortgage. The contention of defendants is that as Robson and his wife were about to lose the property under the "Wells mortgage they agreed to deed their equity of redemption to Brown, and that Brown by the warranty deed which was given received the legal and equitable title to the premises. By the contract which was subsequently given to them it was agreed that when the terms were complied with the full title to the land would go to Robson and his wife by the entireties. The trial judge, who heard the proofs, dismissed the bill, and complainant appeals.

The rights of the parties, it seems to us, should be determined by the contract which was made. It is not unreasonable to assume that, in view of the habits of her husband and his inability to save any money, Mrs. Robson -should insist that the contract make provision so that, when she had by her own efforts paid for the property, she would be protected. Barber v. Milner, 43 Mich. 248 (5 N. W. 92). The fact that she took a quitclaim deed from Brown does not affect her legal rights. She waived nothing by taking it. Lamore v. Frisbie, 42 Mich. 186 (3 N. W. 910).

Under the contract, upon compliance with its terms, Robson and his wife were entitled to have a deed from Brown creating the estate by the entireties, which, on the death of Robson, would have gone to his wife by the right of survivorship. If Robson had outlived his wife, unquestionably his heirs would have been entitled to inherit. It therefore clearly appears that if the contract had been carried out the situation would have been the same as now left by the decree of the court, and complainant has no right to complain, and is not entitled to the relief prayed for.

The decree is affirmed, with costs.

Steere, C. J., and Moore, McAlvay, Brooke, Stone, Ostrander, and Bird, JJ., concurred.


text:
    GERMAINE v. GOVERNOR.
    1. Constitutional Law — Certiorari—Public Officers, Removal —Separation of Departments of Government.
    Certiorari does not lie to review the determination of the governor of the State removing from office the mayor of Traverse City, in proceedings under 1 Comp. Laws, § 1159 (1 How. Stat. [2d Ed.] §1310). To permit judicial review of such removal proceedings in an action directly against the governor would invade the functions of the executive department and violate the Constitution, art. 4, §§ 1,- 2.
    2. Same.
    It is not important in Michigan whether the act of the executive is ministerial or judicial in its nature; the judicial department is not authorized to interfere with the determination of a co-ordinate branch of the government, although the courts may exercise jurisdiction to pass upon the validity of the proceedings in a cause arising between private parties claiming rights thereunder.’
    On motion to quash a writ of certiorari issued at the petition of William D. C. Germaine against Wood-bridge N. Ferris, governor of the State of Michigan, to review proceedings wherein petitioner was removed from the office of mayor of Traverse City.
    Submitted June 24, 1913.
    (Calendar No. 25,698.)
    Writ quashed July 18, 1913.

      Grant Fellows, Attorney General, for the motion.

      Parm C. Gilbert (John J. Tweddle, of counsel), contra.

   Kuhn, J.

This is a motion to enter an order quashing a writ of certiorari heretofore issued by this court. The reasons urged in support of the motion are as follows:

“(1) That this court has no jurisdiction to review, by writ of certiorari directed to the governor, any action of the governor in the discharge of his official duties under the Constitution and laws of the State.
“(2) That under the Constitution and laws of the State of Michigan the executive and judicial branches of the State are co-ordinate, and that the action of the executive department of the State government is not subject to review by the judiciary upon writ of certiorari directed to the executive branch of the State government.
“(3) Because the action of respondent here sought to be reviewed was the exercise of an official discretion belonging to the executive and not reviewable upon certiorari.”

The respondent, as governor of the State, by virtue of authority given him by section 1159, 1 Comp. Laws (1 How. Stat. [2d Ed.] §1310), made an order removing the petitioner from the office of mayor of Traverse City. The section reads as follows:

“The governor may remove all county officers chosen by the electors of any county or appointed by him, and shall also remove all justices of the peace and township officers chosen by the electors of any township, or city or village officers chosen by the electors of any city or village, when he shall be satisfied from sufficient evidence submitted to him, as hereinafter provided, that such officer is incompetent to execute properly the duties of his office, or has been guilty of official misconduct, or of wilful neglect of duty, or of extortion, or habitual drunkenness, or has been convicted of being drunk, or whenever it shall appear by a certified copy of the judgment of a court of record of this State that such officer after his election or appointment shall have been convicted.of a felony; but the governor shall take no action upon any such charges made to him against any such officer until the same shall have been exhibited to him in writing, verified by the affidavit of the party making them, that he believes the charges to be true, with a statement of the prosecuting attorney of the county, that in his opinion the case demands investigation. But no such officer shall be removed for such misconduct or neglect unless charges thereof shall have been exhibited to the governor, as above provided, and a copy of the same served on such officer, and an opportunity given him of being heard in his defense.”

The power conferred by this statute was not granted to the person who is the incumbent of the executive office as a private person, but it is conferred upon the governor in his official capacity. The power pertains to the office of governor, and when he acts by virtue of the statute it is an executive action and it is none the less an official act of the governor because the power might have been intrusted to some other person or authority.

It is urged that the governor in this proceeding acted judicially and that therefore such action is subject to review by certiorari, and in support of that position the case of Dullam v. Willson, 53 Mich. 392 (19 N. W. 112, 51 Am. Rep. 128), is relied upon. In that proceeding, however, no process was issued against the governor direct, and the validity of the removal proceeding was raised by quo warranto. This is the first instance called to our attention in our State where an attempt is made to review the action of the governor of the State by a writ of certiorari. Granting that the contention of counsel for petitioner is correct, that the function performed by the executive in the removal proceedings is quasi judicial in character, the fact still remains that it is an official action of the governor, and the question arises whether an effort to review his action by proceeding directly against him would not involve the fundamental proposition that such review would be an invasion by the judiciary of the executive functions of our government.

Article 4 of the Constitution of this State, on the subject of the division of the powers of government, provides:

“Section 1. The powers of government are divided into three departments: The legislative, executive, and judicial.
“Sec. 2. No person belonging to one department shall exercise the powers properly belonging to another, except in the cases expressly provided in this Constitution.”

The question of whether mandamus will lie to compel the governor of a State to perform duties imposed upon him- has been raised in this State and in many other jurisdictions. It is well settled by all authorities that mandamus will not lie to compel the governor to perform duties of a purely executive or political character, but the decisions are not uniform as to the power of the court to compel the governor to discharge those duties which, as to other officials, are usually called ministerial. However, this question has been settled in this State by the very instructive case of People, ex rel. Sutherland, v. Governor, 29 Mich. 320 (18 Am. Rep. 89). The application in this case was for mandamus to require the governor to issue his certificate showing that the Portage lake and Lake Superior ship canal and harbor had been constructed in conformity with the acts of congress making a land grant for the same and the acts of the legislature of this State conferring the grant upon a corporation which the relators claimed to represent, and it was urged that the act sought to be compelled by mandamus was a purely ministerial one. Mr. Justice Cooley, in the able opinion in that case, discusses at length the question of the jurisdiction of the court to review the action of the executive by proceeding directly against him and declined to distinguish between those acts which are political and those which are ministerial. His reasoning is so clear and instructive and so controlling of the present question that we quote the following (29 Mich., on pages 322-325 [18 Am. Rep. 89]):

“There is no very clear and palpable line of distinction between those duties of the governor which are political and those which are to be considered ministerial merely; and if we should undertake to draw one, and to declare that in all cases falling on one side the line the governor was subject to judicial process, and in all falling on the other he was independent of it, we should open the doors to an endless train of litigation, and the cases would be numerous in which neither the governor nor the parties would be able to determine whether his conclusion was, under the law, to be final, and the courts would be appealed to by every dissatisfied party to subject a co-ordinate department of the government to their jurisdiction. However desirable a power in the judiciary to interfere in such cases might seem from the standpoint of interested parties, it is manifest that harmony of action between the executive and judicial departments would be directly threatened, and that the exercise of such power could only be justified on most imperative reasons. Moreover, it is not customary in our republican government to confer upon the governor duties merely ministerial, and in the performance of which he is to be left to no discretion whatever; and the presumption in all cases must be, where a duty is devolved upon the chief executive of the State rather than upon an inferior officer, that it is so because his superior judgment, discretion, and sense of responsibility were confided in- for a more accurate, faithful, and discreet performance than could be relied upon if the duty were devolved upon an officer chosen for inferior duties. And if we concede that cases may be pointed out in which it is manifest that the governor is left to no discretion, the present is certainly not among them, for here, by the law, he is required to judge, on a personal inspection of the work, and must give his certificate on his own judgment, and not on that of any other person, officer, or department.
“We are not disposed, however, in the present case, to attempt on any grounds to distinguish it from other cases of executive duty with a view to lay down a narrow rule which, while disposing of this motion, may leave the grave question it presents to be presented again and again in other cases which the ingenuity of counsel may be able to distinguish in some minor particulars from the one before us. If a broad general principle underlies all these cases, and requires the same decision in all, it would scarcely be respectful to the governor or consistent with our own sense of duty, that we should seek to avoid its application and strive to decide each in succession upon some narrow and perhaps technical point peculiar to the special case, if such might be discovered.
“And that there is such a broad general principle seems to us very plain. Our government is one whose powers have been carefully apportioned between three distinct departments, which emanate alike from the people, have their powers alike limited and defined by the Constitution, are of equal dignity, and within their respective spheres of action equally independent. One makes the laws, another applies the laws in contested cases, while the third must see that the laws are executed. This division is accepted as a necessity in all free governments, and the very apportionment of power to one department is understood to be a prohibition of its exercise by either of the others. The executive is forbidden to exercise judicial power by the same implication which forbids the courts to take upon themselves his duties.
“It is true that neither of the departments can operate in all respects independently of the others, and that what are called the checks and balances of government constitute each a restraint upon the rest. The legislature prescribes rules of action for the courts, and in many particulars may increase or diminish their jurisdiction; it also, in many cases, may prescribe rules for executive action, and impose duties upon, or take powers from the governor, while in turn the governor may veto legislative acts, and the courts may declare them void where they conflict with the Constitution, notwithstanding, after having been passed by the legislature, they have received the governor’s approval. But in each of these cases the action of the department which controls, modifies, or in any manner influences that of another, is had strictly within its own sphere, and for that reason gives no occasion for conflict, controversy, or jealousy. The legislature in prescribing rules for the courts is acting within its proper province in making laws, while the courts, in declining to enforce an unconstitutional law, are in like manner acting within their proper province, because they are only applying that which is law to the controversies in which they are called upon to give judgment. It is mainly by means of these checks and balances that the officers of the several departments are kept within their jurisdiction, and if they are disregarded in any case, and power is usurped or abused, the remedy is by impeachment, and not by another department of the government attempting to correct the wrong by asserting a superior authority over that which by the Constitution is its equal.
“It has long been a maxim in this country that the legislature cannot dictate to the courts what their judgments shall be or set aside or alter such judgments after they have been rendered. If it could, constitutional liberty would cease to exist; and if the legislature could in like manner override executive action also, the government would become only a despotism under popular forms. On the other hand it would be readily conceded that no court can compel the legislature to make or to refrain from making laws, or to meet or adjourn at its command, or to take any action whatsoever, though the duty to take it be made ever so clear by the Constitution or the laws. In these cases the exemption of the one department from the control of the other is not only implied in the framework of government, but is indispensably necessary if any useful apportionment of power is to exist.”

Again, 29 Mich., on page 330 of the opinion (18 Am. Rep. 89):

“And while we should concede, if jurisdiction was plainly vested in us, the inability to enforce our judgment would be no sufficient reason for failing to pronounce it, especially against an officer who would be presumed ready and anxious in all cases to render obedience to the law, yet in a case where jurisdiction is involved in doubt it is not consistent with the dignity of the court to pronounce judgments which may be disregarded with impunity, nor with that of the executive to place him in a position where, in a matter within his own province, he must act contrary to his judgment, or stand convicted of a disregard of the laws.
“But it is said that this conclusion will leave parties who have rights, in many cases, without remedy. Practically, there are a great many such cases, but theoretically, there are none at all. All wrongs, certainly, are not redressed by the judicial department. A party may be deprived of a right by a wrong verdict, or an erroneous ruling of a judge, and though the error may be manifest to all others than those who are to decide upon his rights, he will be without redress. A person lawfully chosen to the legislature may have his seat given by the house to another, and be thus wronged without remedy. A just claim against the State may be rejected by the board of auditors, and neither the governor nor the courts can give relief. A convicted person may conclusively demonstrate his innocence to the governor, and still be denied a pardon. In which one of these cases could the denial of redress by the proper tribunal constitute any ground for interference by any other authority? The law must leave the final decision upon every claim and every controversy somewhere, and when that decision has been made, it must be accepted as correct. The presumption is just as conclusive in favor of executive action as in favor of judicial. The party applying for action, which, under the Constitution and laws, depends on the executive discretion, or is to be determined by the executive judgment, if he fails to obtain it, has sought the proper remedy and must submit to the decision.”

The reasoning in this case seems to us to establish the rule in this State that no process of the court can be issued against the governor of this State in any proceeding seeking to review any action performed by him as governor under power conferred upon him either by the Constitution or legislative enactment. In the case of People, ex rel. Ayres, v. Board of State-Auditors, 42 Mich. 422, on page 426 (4 N. W. 274), in citing the Sutherland Case, this court said:

“It has also been held that we cannot interfere with the discretion of the chief executive of the State or subordinate him to our process.”

See, also, Board of Supervisors v. Auditor General, 27 Mich. 165.

The decisions in those States that have held that a writ may issue to control a ministerial act of the governor rest chiefly upon the case of Marbury v. Madison, 1 Cranch (U. S.), 137. In speaking of these decisions, Justice COOLEY, in People, ex rel. Sutherland, v. Governor, supra, 29 Mich., at page 327 (18 Am. Rep. 89), said:

“These cases for the most part are rested upon the dictum of Chief Justice Marshall in Marbury v. Madison, 1 Cranch [U. S.], 137, that one of the heads of department in the Federal government might be compelled by mandamus to perform a mere ministerial duty; a dictum which cannot be understood as expressive of the opinion of that eminent judge that the president was subject to the like process, but which is wholly inapplicable to a case like the present, unless it goes to that extent. For it cannot justly be claimed, when Federal and State governments have been formed, so far as distribution of power is concerned, on the same general plan, that the executive of the Union can claim immunity from judicial process any more than the governor of one of the States. In many cases it is unquestionable that the head of an executive department may - be required by judicial process to perform a legal duty, while in other cases, in our judgment, the courts would be entirely without jurisdiction; and, as regards such an officer, we should concede that the nature of the case and of the duty to be performed must determine the right of the court to interfere in each particular instance. When the head of a department acts as the mere assistant or agent of the executive in the performance of a political or discretionary act, he is no more subject to the control of the courts than the chief executive himself; but where a ministerial act is required to be done by him, independently of the executive, though in a certain sense he is an executive officer, it would be as idle to dispute his responsibility to legal process, as it would be to make the same claim to exemption on behalf of an officer intrusted with similar duties of a lower grade. This is emphatically the case under the Constitution of this State, which provides for the election of State and inferior officers alike by the people, and makes the chief officers of State below the governor as independent of his control in the performance of their duties as are the officers of the counties or of the townships.”

The following instructive cases from other jurisdictions with similar holdings have been called to our attention and examined: State v. Governor, 25 N. J. Law (1 Dutcher), 331; Hawkins v. Governor, 1 Ark. 570 (33 Am. Dec. 346); Mauran v. Governor, 8 R. I. 192 (5 Am. Rep. 564); People, ex rel. Billings, v. Governor, 19 Ill. 229 (68 Am. Dec. 591); State, ex rel. Robb, v. Governor, 120 Mo. 428 (25 S. W. 376, 23 L. R. A. 194, 41 Am. St. Rep. 705); State, ex rel. Bisbee, v. Governor, 17 Fla. 67; Appeal of Hartranft, Governor, 85 Pa. 433 (27 Am. Rep. 667); Rice v. Governor, 19 Minn. 103 (Gil. 74), (18 Am. Rep. 330); State, ex rel. Oliver, v. Governor, 22 La. Ann. 1 (2 Am. Rep. 712); Vicksburg, etc., R. Co. v. Governor, 61 Miss. 102 (48 Am. Rep. 76); Dennett, Petitioner, 32 Me. 508 (54 Am. Dec. 602); Governor v. State, ex rel. Schuck, 127 Ind. 588 (27 N. E. 175, 11 L. R. A. 763, 22 Am. St. Rep. 663).

In the case of Bates v. Taylor, 87 Tenn. 320, 323 (11 S. W. 266, 3 L. R. A. 316), the Sutherland Case is cited with approval and the court said:

“The courts of Ohio, Alabama, California, Maryland, and North Carolina are together in holding that the governor may be required by mandamus to perform duties of the latter class; while the courts of Arkansas, Georgia, Illinois, Louisiana, Maine, Minnesota, New Jersey, and Rhode Island have uniformly held the contrary, upon the ground that the powers of government in the States are distributed among three departments, which, under the organic law, are to be and remain independent of each other. High on Extraordinary Legal Remedies, §§ 118, 119, 120, and 121.
“This author cites the cases from the different States mentioned. We have examined them, and also a very instructive case from Michigan (People, ex rel. Sutherland, v. Governor, 29 Mich. 321 [18 Am. Rep. 89]), which is in accord with those from the States last mentioned, and we are fully persuaded not only that the weight of authority, but also the weight of reason is against the power of the courts to coerce the chief executive of a State into the performance of any official duty.”

The attorney general, representing respondent, makes no claim that in a proceeding between A. and B., in which A. asserts some rights by virtue of executive action, that the courts cannot determine the validity of that executive action. This court held, in Dullard v. Willson, supra, that in such an action the validity of the governor’s proceedings could be reviewed and the rights of a person who had been removed from office by the governor, 'without proper compliance with the requirements of the statute with reference to removals, would be protected. That decision fully lays down the rule applicable in such cases and, in our opinion, affords ample protection against any unwarranted or illegal act on the part of the executive in removal proceedings.

The writ was improvidently issued and must be quashed.

Steere, C.- J., and Moors, McAlvay, Brooke, Stone, Ostrander, and Bird, JJ., concurred.


author: McAlvay, J.

text:
    HOBEN v. CITIZENS' TELEPHONE CO.
    1. Process — Corporations—Parties—Name.
    The objection that a defendant was not sued under its correct corporate name must be raised by plea in abatement or is waived. 3 Comp. Laws, § 10473 (5 How. Stat. [2d Ed.] §13518).
    2. Justices oe the Peace — Service—Appearance—Return oe Constable.
    The return of a constable that he served a justice’s sum- ' mons “on the 6th day of May, 1903, on Citizens’ Telephone Company, the defendant’s agent, by delivering to S. E. H. a copy thereof at,” etc., did not confer jurisdiction: it was not made to appear that S. E. H. who was served was defendant’s agent; and a special appearance on the return- day to move to quash the proceedings did not subject the defendant to- the jurisdiction of the court.
    3. Same — Amendments—Process.
    Nor could the jurisdictional defect be aided by amendment. 3 Comp. Laws, §§ 10272, 10273 (5 How. Stat. [2d Ed.] §12973).
    4. Same — Docket.
    The jurisdiction of a justice of the peace must appear affirmatively on the face of the proceedings, and jurisdiction of the defendant must be obtained by proper service of legal process where the defendant does not appear and give such service.
    5. Same.
    Upon a justice’s docket showing- that the plaintiff proceeded to trial on the adjourned day without waiting an hour for the defendant to appear, the judgment should be reversed on certiorari.
    6. Same — Certiorari—Return.
    That the testimony of certain witnesses, offered by plaintiff before the justice of the peace, was taken and set out in an affidavit of defendant’s attorney for a writ of certiorari, had no tendency to contradict the record which showed a special appearance and no general appearance of the defendant.

      Error to Ottawa; Padgham, J.
    Submitted June 10, 1913.
    (Docket No. 55.)
    Decided September 30, 1913.
    Case by Carrie E. Hoben in justice’s court against the Citizens’ Telephone Company for injuries done to certain trees. Plaintiff obtained a judgment and defendant brought certiorari to the circuit court. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Cross, Vanderwerp, Foote & Ross, for appellant.

      Lillie & Osterhous, for appellee.
   McAlvay, J.

This suit was commenced May 2, 1903, by plaintiff in justice’s court in Ottawa county by a summons in an action of assumpsit against Citizens’ Telephone Company, returnable May 12, 1903. The return shows service on May 6, 1903.

As appears from a certified transcript of the original docket entries, the order of proceedings before the justice was as follows: On the return day plaintiff appeared and declared orally against defendant in an action of trespass for damages wrongfully done by it to certain shade trees belonging to plaintiff along the highway, describing the premises and giving the town and county.

One of the attorneys for the defendant appeared specially in said cause for the sole purpose of making a motion to quash the summons and to dismiss the suit. This motion was in writing and for the following reasons:

“(1) The defendant was not sued by its legal name, viz., ‘Citizens’ Telephone Company, of Muskegon, Mich.’
“(2) The defendant was not a resident of the county of Ottawa, and the suit was commenced by summons made returnable ten days from the date thereof.
“(3) The justice of the peace did not obtain jurisdiction over the defendant in the suit.”

This motion was not passed upon at the time, and by request of plaintiff an adjournment was had until May 26th following at 9 o’clock in the forenoon, when the suit was called and the plaintiff appeared. The motion to quash was denied, and plaintiff proceeded to trial. After hearing the evidence in the case, a judgment was rendered in favor of plaintiff for $70 and costs of suit, taxed at $6.04. The docket does not show that on the return day defendant was not present by its representative.

The cause was removed by writ of certiorari, dated July 3, 1903, to the circuit court for Ottawa county, and was submitted to the court in October, 1904, and was not determined by that court until December 20, 1911, when the judgment of the justice’s court was affirmed. The case is before this court for review upon a writ of error, and the errors assigned and relied upon are based upon the rulings of,the circuit court in affirming the judgment of the justice’s court, in overruling the motion made to quash the proceedings and dismiss the case for want of jurisdiction; that the court erred in holding that a judgment could be recovered under the declaration and in holding that the justice did not lose jurisdiction on the return day by adjourning on request of plaintiff, without a showing on oath, and on the adjourned day by not waiting one hour for defendant to appear. These questions, raised on errors assigned, will be considered in the order presented.

Appellant contends that it was not sued by its legal name, Which it claims is “Citizens’ Telephone Company of Muskegon, Mich.” We call attention to section 10473, 3 Comp. Laws (5 How. Stat. [2d Ed.] §13518), which provides:

“In suits or proceedings by or against any corporation, a mistake in the naming of such corporation shall be pleaded in abatement; and if not so pleaded, shall be deemed to have been waived.”

The question could be raised only in the manner pointed out by the statute. No plea in abatement was filed in this case. The irregularity was waived.

It is further contended that the justice of the peace acquired no jurisdiction of the case upon the ground that there was no proper service of the summons upon defendant. The return of service of summons was as follows:

“State of Michigan,
“County of Ottawa — ss.:
“I served the within summons on the 6th day of May, A. D. 1903, on Citizens’ Telephone Company, the defendant’s agent, by delivering to Sherman E. Hosmer a copy thereof, at the township of Polkton, within said county.
“Leon J. Ives,
“Deputy Sheriff.”

It cannot be said that the fair import of this language is that the summons was served upon Sherman E. Hosmer, the agent of the defendant, or that said Hosmer was the agent of defendant. For this reason the justice did not obtain jurisdiction over the defendant. Kirby Carpenter Co. v. Trombley, 101 Mich. 447 (59 N. W. 809). The appearance of the defendant upon the return day was a special appearance for the purpose of filing a motion to quash. This appears by the docket entry and return of the justice.

Nor can it be said that this jurisdictional defect was aided by our statute of amendments (sections 10272, 10273, 3 Comp. Laws, 5 How. Stat. [2d Ed.] § 12973). It cannot be held that this defect was one “not being against the right and justice of the matter of the suit,” within the meaning of the statute; and therefore cannot be amended in this court. The right of amendment does not extend to matters of jurisdiction.

The jurisdiction of the justice must appear affirmatively upon the face of the proceedings. Davison v. Davison, 99 Mich. 625 (58 N. W. 637); E. S. Knowles & Son v. Cavanaugh, 144 Mich. 260 (107 N. W. 1073); Wells v. Guaranty Co., 160 Mich. 213-217 (125 N. W. 57).

It is elementary that jurisdiction of the person of the defendant must be obtained by proper service of legal process, where the defendant does not'appear or waive such service. If we are correct in what we have said, it disposes of the case.

But we may add that it appears to us also that there is merit in the ninth assignment of error, which is based upon the ninth allegation of error in the affidavit for certiorari, to wit: That it appears from the docket of the justice that the plaintiff proceeded to the trial of said cause on May 26, 1903, at 9 o’clock in the forenoon, without waiting one hour for the defendant to appear. The docket entry is as follows:

“May 26, 1903, 9 o’clock in the forenoon. Suit called. Plaintiff appears. Motion to quash denied. Plaintiff goes to trial of the cause. William FitzPatrick, John Hoben, and August Bushman sworn.
“After hearing the evidence in the case, I rendered judgment against the defendant and in favor of the plaintiff,” etc.

The affidavit for the writ of certiorari was made by John Vanderwerp, as attorney for defendant, in the original suit. He therein states, among other things, that—

“On the 26th day of May, 1903, at 9 o’clock in the forenoon, the plaintiff appeared before said justice, by Walter I. Lillie, her attorney; that the defendant did not appear; that the motion to quash made by said defendant on the 12th day of May, 1903, was denied by said justice, and the plaintiff went to the trial of said cause.”

The justice in his return to the writ of certiorari certifies that the proceedings in and trial of said cause and the judgment rendered were in all things as alleged and set forth in the affidavit of John Vanderwerp. So it cannot be said, in the light of this evidence and the return, that defendant appeared on the adjourned day simply because the testimony of the witnesses is set forth in the affidavit for the writ. Defendant’s attorneys may have very properly sent their stenographer to take such testimony, and certainly that would not have operated as an appearance in the cause. There is nothing in the record to indicate that the defendant was present or took any part in the trial. We think that the case is squarely within the reasoning of this court in Bossence v. Jones, 46 Mich. 492 (9 N. W. 531), and Talbot v. Kuhn, 89 Mich. 30 (50 N. W. 791, 28 Am. St. Rep. 273), and that certiorari is the proper and direct way to raise the question. Harbour v. Eldred, 107 Mich. 95 (64 N. W. 1054); Miller v. Smith, 115 Mich. 427 (73 N. W. 418, 69 Am. St. Rep. 583).

We think that the justice erred in not waiting one hour for the defendant to appear, and that the circuit court erred in affirming such judgment.

For these errors, the judgment of the circuit court is reversed.

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