author: Hooker, J.

text:
    AUDITOR GENERAL v. SPARROW.
    1. Taxes — Equalization—Presumption.
    In the absence of a contrary showing, it will be presumed that the equalization of the several assessment rolls of a county by the board of supervisors was based upon the valuation of the real estate, as required by the statute, and not upon that of both the real and personal property.
    2. Same — Sufficiency of Record.
    Hence, the statutory requirement that the amount added to or deducted from the valuation of the real estate as assessed be entered upon the records of the board is sufficiently complied with where the record discloses the aggregate valuation of the real and personal property as assessed and as equalized.
    3. Same — Clerical Error.
    The use of the term “taxes,” instead of “valuation,” in the. record of equalization, is not a fatal defect, where it is manifest that the latter term was intended.
    4. Same — Absence of Dollar Sign.
    The absence of the dollar sign in the record of the equab'zation and apportionment of taxes by a board of supervisors does not invalidate the action taken, where the figures are separated in such manner as to indicate places for dollars and cents.
    5. Same — Assessment Roll — Description of Lands — Sufficiency.
    The description of the several quarters of a quarter section of land in an assessment roll is sufficient to authorize a decree against them for the amount of the tax, where one of the quarters is identified by the abbreviations “N. E.-N. E.” under the heading “Description,” and by the appropriate figures under the respective headings “Sec.,” “Town,” “Range," and “Acres,” and the other quarters in their order by the abbreviations “N. W.,” “S. W.,” and “S. E.,” respectively, placed directly under the first abbreviation ‘ ‘ N. E.” (indicating the particular quarter), and by the figures “40,” repeated in each instance under the heading “Acres,” although the second abbreviation “N. E.” (indicating the quarter section), and the number of the section, town, and range, are not repeated or indicated by ditto marks.
    6. Same — Collection by Suit in Chancery — Defenses—Absence of Warrant — Unverified Return — Defective Certificate of Board of Review.
    Under the method of enforcing the payment of delinquent land taxes by a foreclosure of the lien in chancery, and particularly in view of the curative provisions of the tax law (Act No. 206, Pub. Acts 1893, § 99 ), irregularities in the prior proceedings which do not prejudice the property rights of the person whose land is taxed will not defeat the claim of the State. Thus, it is no defense to the entry of a decree against the land—
    (1) That no warrant was annexed to the tax roll delivered to the collecting officer;
    (2) That the return of delinquent taxes was not verified; or
    (3) That a majority of the board of review did not sign the certificate attached to the assessment roll.
    7. Same — Unauthorized Action by Board of Review.
    But a change of valuations in a township assessment roll by the board of review, tipon its own motion, after the expiration of the time allowed for that purpose by section 29 of the tax law of 1893, invalidates the entire tax.
    8. Same.
    And, likewise, the addition of lands to a roll by the board after the expiration of such period invalidates the tax as to the lands so added.
    9. Township Taxes — Authority of Township Board.
    Under 3 How. Stat. § 750, authorizing the township board to vote the sum necessary to be raised by tax for the ordinary expenses of the township in case the qualified electors, at the annual township meeting, shall “neglect or refuse” to do so, a tax levied for such purpose is invalid if based upon a vote of the board without ¡a previous submission of the question to the electors.

      10. School Taxes — Authority op Board op Education.
    And taxes levied for school purposes in a township school . district are subject to the same consideration, under Act No. 176, Pub. Acts 1891, § 9, conferring like authority upon the board of education óf such district with respect to school taxes.
    11. Highway Taxes — Power op Township Board.
    But under 3 How. Stat. § 1356, providing that the township board shall fix the amount to be raised as a money tax for highway purposes in case the electors “do not determine” the same, a previous submission of the question to the electors is not a prerequisite to the authority of the board to act. Distinguishing Auditor General v. Railway Co., ante, 123.
    12. Taxes — Authority op Board op Review — Incomplete Roll.
    Under section 29 of the tax law of 1893, providing that the township board of review shall add to the assessment roll the description and value of real property liable to assessment in áuch township, omitted from the roll, shall correct all errors in the assessment and valuation of property thereon, and shall cause to be done whatever else may be necessary to make the roll comply with the provisions of the act, the board has the power to add the values opposite the descriptions of real property on the roll, where the supervisor has failed to do so.
    Í3. Same-tSúppiciency op Record.
    The fact that the record of the board of review of a city fails to show that it met upon a given Monday, to which day an adjournment was taken on the previous Saturday, but shows that it did meet, and adjourn sine■ die, upon the following Tuesday, is not conclusive of the authority of the board, under the charter, to continue its sessions for as many days as might be necessary.
    14. City Taxes — Special Meeting op Council — Notice—Evidence.
    A city tax, voted at a special meeting of the common council' at which all of the members were not present, will not be held invalid because the record of the council fails to show that due notice of the meeting was given, where the charter, if it requires proof of notice to be preserved at all, does not require it to be incorporated in the record, and it is not shown that such proof was not properly filed.
    15. School Taxes — Adjournment op Annual Meeting.
    School taxes are not void because voted at an adjourned session of the annual school meeting; since, in the absence of statutory provision to the contrary, a regular meeting of a public body may adjourn to a future time.

      Appeal from Gogebic; Haire, J.
    Submitted October 7, 1897.
    Decided April 5, 1898.
    In the matter of the petition of the auditor general for the sale of lands delinquent for the taxes of 1894: On objections filed by Edward W. Sparrow and others. All parties appeal.
    Decree modified.

      Charles E. Miller, Prosecuting Attorney, for petitioner.

      A. B. Eldredge and A. E. Miller, for defendants Frederick F. Ayer and others, trustees.

      M. J. Shenvood, for. other defendants.
   Hooker, J.

Several answers were filed by various landowners in opposition to the proceedings instituted in the circuit court of Gogebic county, under the statute, by the auditor general, for the foreclosure of tax liens and the collection of taxes for the year 1894; and the cause is brought to this court by appeal taken by all parties.

As it is conceded that the tax for county roads is invalid, there is no occasion to discuss that subject.

It is claimed that the entire county tax is invalid, for the want of a proper equalization and apportionment. The following quotation from the record will show the action taken by the board of supervisors:

“The committee on equalization submitted the following report:
“‘To the Honorable Board of Supervisors: Your committee to whom was referred the equalization of taxes among the several cities and townships in the county of Gogebic for the year 1894 beg leave to report that the following are taxes of Gogebic county as assessed:
44 ‘ Resolved, that the assessment of taxes for the year 1894 for the several townships and cities of Gogebic county be equalized as follows:
“ ‘ G-. L. Loops,
“ ‘Sam. A. Reed,
“ ‘ W. D. Elsworth,
“ ‘K. S. Markstrum,
“‘N. B. Rosoorlo,
“ ‘ Chas. Trezona,
“‘John Nelson,
“ ‘ Committee.
4 4 Which resolution was adopted; all the supervisors present voting therefor, by yeas and nays, as follows: * * *
4 4 Q. I will ask you whether or not anywhere in any of these tables you have just read there appears a dollar sign, or anything that would indicate dollars or cents ?
“A. No, sir.
“Q. Suppose you turn to the apportionment.
“A. Yes, sir.
“Q. Read it.
“Committee on apportionment report as follows:
4 4 4 To the Honorable Board of Supervisors of Gogebic County: Your committee on apportionment of taxes beg to report as follows:
44 ‘The amount of State taxes to be levied is 22,422.16, to be apportioned in the several cities and townships as follows:
4 4 4 Amount of county taxes to be levied is 70,000.00, to be apportioned as follows:
“ ‘The amount of rejected tax to be levied is 5,038.03.
“‘We recommend that the following tax be spread oh the respective rolls of the several cities and townships of tho county for local purposes, as follows: For county road purposes, one-mill tax of the entire valuation of the county, 8,640, to be apportioned as follows:
“ ‘G. L. Loope,
“‘Chas. Trezona,
“‘N. B. Rosoorlo, “‘W. D. Elsworth,
“ ‘ John Nelson,
“ ‘ Committee.’
‘ ‘ Upon motion, the report of the committee was accepted, and the several amounts as recommended to be apportioned adopted in accordance with the report; all the supervisors present voting therefor, by yeas and nays, as follows. * * * ”

This subject has been discussed in the case of Auditor General v. Ayer, 109 Mich. 694, where the statute is quoted. Counsel contend that this statute requires that the record of the board of supervisors show the amount' added to or deducted from the valuation of the real estate as assessed, and the aggregate valuation of the taxable real and personal property, etc., and that these things do not appear of record in this case. In the case of Auditor General v. Ayer, supra, we held that, if the amount added or deducted is ascertainable by computation, it is sufficient, and that it will be presumed that equalization is based on the valuation of real estate, if the contrary does not affirmatively appear. This case differs from that in this particular: There the real estate and personal property, as assessed, appeared in separate columns in the record. Here it did not; the aggregates as assessed and equalized were shown. The law does not in terms require either, but the omission to enter one or the other would have made it impossible to ascertain the amounts added or deducted. It is as easy to ascertain these amounts where the valuations of real and personal property as assessed and as equalized are entered in the aggregate as where separately stated, and the presumption is the same.

It is contended, however, that it affirmatively appeared upon the trial, by the testimony of the chairman of the committee on equalization, that the equalization was not based upon real estate alone. If the presumption of regularity can be overthrown by oral testimony in such a case, — a question that we do not pass upon, — the testimony referred to does not, in our opinion, sustain the claim. Dr. Loope, the chairman, was called upon behalf of the State, and upon his direct examination was asked about the report of his committee. The following quotation from the record will show the nature of his examination.

“Q. Doctor, I call your attention to this paper marked ‘ Exhibit N. ’ Is that your handwriting ?
“A. I believe it is; yes.
Q. You know who signed that report ?
“A. Yes.
“Q. What did your committee equalize ?
“Mr. Sherwood: I object to that.'
“Court: Overruled for the time being.
“Q. What did your committee equalize ?
“A. Taxable property of the county.
“Q. I will ask you if there was any committee to whom was referred the equalization of taxes among the cities and townships ?
“Mr. Sherwood: I object to that, as the record is the-proper evidence.
“A. We have a standing committee on the county board of equalization; that is, one standing committee on the county board.
“Q. Now, that committee on equalization: Is its purpose to equalize the valuation of taxes ? Does it equalize the valuation of different townships and wards for county purposes ?
“A. Yes, sir.
UQ. Now, when you used the words in your report, ‘Resolved, that the assessment o£ taxes for the year 1894 be equalized as follows,’ you meant by that the valuations should be equalized as follows; and now I want to ask you, when that was laid before the board (that is, the report was made there), was the discussion very generally participated in ?
“A. Yes, sir; that discussion had reference to the equalization of valuation of the different townships and wards of the county.
Q. Now, I will ask you, doctor, taking the first table there, which was the valuation of the city of Ironwood, you see there is no dollar mark there, — 517793000. Was that intended to be dollars ?
“A. Yes, sir.
Q. Were all these figures ?
“A. Yes, sir; the only discussion before the board at that time upon the report was the relative valuation of the different properties in the cities.
Q. Just the valuations, — the difference in valuations ?
“A. Yes, sir.
“ Cross-examination, by Mr. Sherwood: Q. Doctor,
do I understand that this report was made in ink, or simply a portion of it made in ink ?
“A. I didn’t take notice to it.
“Q. Did you put those ciphers here with a pencil ?
“A. I don’t know who put them down. .
“Q. You notice, doctor, that there is a row of ciphers here, indicating cents ?
“A. I can’t tell whether they were put there by the order of the committee or not. I presume, though, the committee put them there.
“Q. Now, doctor, you are not positive whether you made this mark with a lead pencil or not ?
“A. No, sir; I am not.
“<9- Now, doctor, in making this equalization in this report, you took, as I understand, the assessment rolls of the various townships, and equalized the total valuations of those according to your best judgment ?
“A. Yes, sir; and made our report in accordance with them.
“Examined by G. E. Miller: Q. Now, doctor, around these ciphers made with the pencil there appears to be different styles of handwriting. How would you account for that ?
“A. I don’t know, unless the insertions were made by different members of the committee.
“Q. Doctor, the ciphers here made with the pencil are considerably smaller than those made with the pen in ink, are they not ?
“A. They seem to be, there.
“Q. Have you any recollection of this yourself ?
“A. No, sir; I have no recollection of this report, other than recognizing my own handwriting.”

This is substantially his entire testimony. He was not asked to state whether the committee equalized upon a basis of the total valuation of real property, as contradistinguished from the entire aggregate of property upon the roll; and while, upon cross-examination, he answered “Yes” to the question, “Now, doctor, in making this equalization in this report, you took, as I understand, the assessment rolls of the various townships, and equalized the total valuations of those according to your best judgment ? ” it is not improbable that he had in mind the total of the real property. The record shows nothing to apprise him or counsel that a claim of that kind was then being made. It indicates that he was called to show that the figures referred to valuation, notwithstanding the absence of the dollar sign from the columns, and that the committee equalized valuations, and not “ taxes,” which is the term used in the report. Technically, the report was inaccurate in this respect, but we think that the intention to equalize valuation was manifest upon the face of the proceedings. The question arising upon the absence of the dollar sign is settled, both as to equalization and apportionment, by the case of Muirhead v. Sands, 111 Mich. 487. We are of the opinion that the circuit judge committed no error in sustaining the validity of the county tax other than that assessed for county roads.

Among the taxes questioned are those levied in the various townships. In Marenisco, two defects are pointed out by defendants’brief, viz., that the property was not definitely described, and that no tax warrant was attached to the roll. In Bessemer township, that the descriptions were defective. In Wakefield township, that the descriptions were defective; that the board of review changed valuations after its first meeting, and did not keep a record of the same, as required by section 33 of the tax law. Act No. 206, Pub. Acts 1893. In Ironwood township the descriptions are questioned, and it is said that the supervisor did not complete his roll, inasmuch as he omitted to include his estimate of the values of the respective parcels listed, and it was done by the board of review. In Watersmeet township, lands are said to have been added to the roll after the first meeting of the board of review. In the city of Ironwood, that the taxes were ordered at a special meeting of the common council; that there were changes in valuation by the board of review after the time when such changes might be lawfully made, and that the record of the board was not signed by a majority of the board; that the return of delinquent taxes was not verified; that there was no controller’s warrant attached to the roll; and that the school tax was voted at an adjourned session of the annual meeting.

Under the laws of many of the States, including our own, it has been the practice to enforce the payment of delinquent taxes upon land by a sale of a portion or the whole of the land taxed; resulting usually in the sale of the delinquent lands for a small fraction of their value. So obnoxious was this that the courts of these States, with practical unanimity, have refused to sustain these titles unless the proceedings were in all respects regular. The tax laws were intricate, and the many steps required in the assessment, levy, return, advertisement, and sale in volved official action of so many persons, and clerical work so great in detail, that it was seldom that the tax proceedings were perfect, and it was for many years the common understanding that tax deeds were uniformly void. As this involved the loss by the tax-title, purchaser of the consideration paid for the purchase, the business was attended by risks which discouraged the purchase of lands for delinquent taxes; and ultimately landowners who were nonresidents, or not possessed of personal property from which the taxes could be collected, felt safe in refusing or neglecting to pay taxes. Thousands of acres were stripped of all value, and the taxes, not being paid upon them, had to be reassessed upon the law-abiding and taxpaying portion of the community. Innumerable parcels of land were bid off by the State for want of other bidders, and ultimately had to be sold for a small fraction of the taxes originally levied, leaving large deficiencies, to be met by a new tax. Repeated but futile efforts were made by the legislature to provide a tax law which should be effective, but these efforts were invariably rendered ineffective by the inherent difficulties in the way of absolute accuracy, and the settled policy of the courts to afford every possible protection to the landowner.

The present law is radically different from those which have generally prevailed in this State. It provides for an adjudication upon the validity of the tax before a sale can be made, giving to persons assessed an opportunity to appear and contest the validity of the tax. It is, in substance, a proceeding to foreclose the lien of the State upon the land taxed, which is given by section 40 of the tax law, which provides that taxes assessed upon real property shall become a lien upon such property on the 1st day of December, which lien shall be continued until the taxes are paid. In this proceeding the State may take a decree for the whole tax, or so much thereof as appears to be valid. No good reason appears for denying the State a decree for a legal tax merely because of some, irregularity in the earlier proceedings. The fact that some proceeding has not been seasonably taken, or that some formal step has been omitted, affords no reason for allowing a property holder to escape altogether, and shift his burden upon others. It was manifestly the intention of the legislature that the court should determine the just and substantial rights of the taxpayers and the State, and to cut off technical questions by which the State and other taxpayers might be defrauded by persons who seek to avoid their* just share of the public burdens. Thus, the court is given jurisdiction over all lands which are returned as delinquent, and it is not made a condition that the earlier proceedings have been regular. The language of section 60 is that “ all lands which have been or may hereafter be returned * * * as delinquent * * * shall be subject to disposition, sale, and redemption for the enforcement and collection of such tax liens;” and care is taken to preserve the lien until payment. See sections 60, 70. Again, the curative provision of this law indicates that substance, and not form, is to be considered, and that the court is expected to sustain the tax unless it should be made to appear that the tax was illegal, or that the irregularity complained of resulted in injury to the rights of property of the contesting taxpayer. This evident intention should be given effect so far as it is possible. We will examine these alleged defects, to ascertain which, if any, of them can be said to have rendered the tax illegal, or prejudiced the property rights of the taxpayer.

It is claimed that in several of the rolls the land was not properly described. At the beginning of the roll there was a printed line, with blanks, which, when filled, made it read as follows: “Assessment roll for the township of Bessemer, in the county of Gogebic, for the year 1894.” The pages were ruled, and entries made thereunder as follows:

It is contended that these are not valid descriptions, and counsel cite cases from Minnesota in support of the claim. An examination of the case of Keith v. Hayden, 26 Minn. 212, will show that it does not cite an adjudicated case, while that of Power v. Bowdle, 3 N. Dak. 107, merely follows a former decision by the same court, viz., Power v. Larabee, 2 N. Dak. 141. The opinion in Power v. Larabee cites Keith v. Hayden, supra; Williams v. Central Land Co., 32 Minn. 440; Black, Tax Titles, 38; and Cooley, Tax’n (2d Ed.), 404. On examination of these authorities, we find that in none of them is there a decision upon similar descriptions, except the case of Keith v. Hayden. On the contrary, description by abbreviation was early permitted by our statute (Act No. 96, Laws 1844, § 8), and sustained by this court in the case, of Sibley v. Smith, 2 Mich. 486, 503. Eor other authorities in point on the subject of abbreviations, see 1 Blackw. Tax Titles, § 246; Black, Tax Titles, § 114; Jordan Ditching, etc., Ass’n v. Wagoner, 33 Ind. 51; Atkins v. Hinman, 2 Gilman, 451; Paris v. Lewis, 85 Ill. 597; Buck v. People, 78 Ill. 560; State v. Mayor, etc., of Newark, 36 N. J. Law, 288; Hodgdon v. Burleigh, 4 Fed. 117. If it be said that the present case is not within these authorities, inasmuch as the fractions are omitted, and in many instances portions of the abbreviations of the descriptions are not expressed, we shall still find authority in the cases cited to support their validity, when we take into consideration the entire roll, and the uniformity in the order in which the respective subdivisions appear. In discussing the question of the requisite accuracy of description, Mr. Justice Cooley says: “A more satisfactory rule would seem to be that the designation of the land will be sufficient if it afford the means of identification, and do not positively mislead the owner, or be calculated to mislead him.” Cooley, Tax’n (2d Ed.), 407. See, also, Tallman v. White, 2 N. Y. 66. In 1 Blackw. Tax Titles, § 223, it is said: “The test is this: Is the description sufficient to identify the land, and give notice to the owner of its assessment, or is it so defective that it "might probably mislead the owner?” And “parol evidence will be admitted to aid latent ambiguity.”

In this case the columns are indicative of the section, town, and range, and the number of acres, and, in case of residents, the name of the owner. The first description contains the abbreviation: “N. E.-N. E., Sec. 1, town 45, range 44, 40 acres.” Below it follow successively other descriptions under the same section, town, and range, which are not répeated. Who can doubt that this was intended to cover land on the same section? And it is just as apparent that “N. E.-N. E.” means “northeast of the northeast.” That it means “northeast quarter of the northeast quarter” is obvious, not alone from the number of acres, but because all of the other portions of the northeast quarter follow, and, with the first description, complete the ^number of acres in the quarter section. The northwest and other quarters of the section follow, the subdivisions being set down in the same order, after which section 2 is given in the same order. It is common knowledge that these terms would be thus understood by the general public, and that this method has been pursued in describing property in this State for many years. No court would hesitate to declare such meaning in an action between private parties, and we see no reason for thinking that it could mislead any one. In Blakeley v. Bestor, 13 Ill. 713, a description was held good when two sides only of the parcel were described. This was in a tax case. Hodgdon v. Burleigh, supra, discusses descriptions much less certain than the descriptions before us. In State v. Mayor, etc., of Newark, supra, the abbreviation “H., L., and Stable” was held good, as evidently meaning “house, lot, and stable.” In Paris v. Lewis, supra, the description, “W. ½ of N. W., sec. 15, town 37 N., range 13 E., acres 80,” was held good. In Atkins v. Hinman, supra, the town and range were not given with each description, and the court said: “There is no just foundation for this objection. The marks which follow the section clearly refer to the township and range of the two preceding tracts. This reference makes the de-. scription complete, and places the matter beyond all dispute.” Here there were no dots under the section, town, and range, but it is obvious that all of the land must have been in the same town and range; and the majority of the assessments would have been meaningless unless the descriptions be understood to refer to the quarter and section previously mentioned until a new one was given. We think these descriptions sufficiently certain.

We will next consider the effect of the absence of the warrant from the roll of the township of Marenisco. The law provides that a warrant shall be attached to the copy of the roll which is delivered to the township treasurer. It has frequently been held that without a good and valid warrant the treasurer has no authority to collect a tax, and that he is a trespasser if he seizes property for the purpose of making his tax; and tax deeds have been held invalid when a proper warrant did not accompany the copy of the roll. This was upon the theory that it was a necessary step in the proceedings to a sale, and that it was a condition precedent to a valid sale. Under former laws, all proceedings were ministerial, but under the present law this is not so. After the failure of the executive department to collect, the enforcement of the payment of delinquent land taxes is sought through a different branch of the government, viz., the judicial branch, by proceedings conforming to its methods. The law proceeds upon the theory of the existence of a claim upon behalf of the State against the property owner for taxes which have not been paid, and cites him into court to answer a bill to enforce this claim against the property taxed. It is not a sufficient answer for him to show that the treasurer would have been a trespasser had he seized personal property, or that he had not demanded payment, or that it might have been collected had he been diligent or brought an action,— all of which, perhaps, are permitted, and possibly directed, by the law. If all of these things should be proved, the fact would remain that the tax was still due and unpaid. No good reason would seem to exist why the court should discharge the liability, instead of requiring payment. If it did, the practice would be exceptional. Everybody is presumed to expect that his property is taxed, and to know when and where the taxes are payable, and that, if not paid, they will be returned, and proceedings taken to obtain a decree requiring payment, and directing sale of the premises if payment is not made as required by the decree. There is no injury to property by such a course. The taxpayer has every opportunity to pay, and a year within which to redeem after sale. These provisions of the law are all designed to protect the landowner from accidental and unexpected losses of his property through a sale of which he was not advised, or which he had neglected to provide against; and it is no hardship to ask payment of a just debt at a late day, though the entire procedure be not strictly accurate, and in all respects conformable to law. Hence the law requires the taxpayer to set up in his answer wherein the defect lies upon which he depends, and it must be one which the court can see is injurious to his property rights; and it is expressly provided by section 99 that these defects, to discharge the lien, must be something more than irregularities which do not prejudice property rights. The circuit court therefore properly disregarded this objection that there was no warrant, and endeavored to ascertain whether the claim of the State was a just one. See Auditor General v. Hutchinson, 113 Mich. 245. This disposes of the question raised as to Marenisco. In the same connection, we may say that the absence of the controller’s warrant from the copy of the roll in the city of Ironwood is within this ruling.

The questions already discussed leave nothing to be considered in connection with the township of Bessemer, as we discover no additional point commented on in defendants’ brief.

The roll for the township of Wakefield was duly certified by the board of review, but the records of the board show that on the 28th and 29th of May they passed resolutions making sweeping alterations in the roll, in the way of reductions; village and mining property being reduced 66f per cent., and other property 10 per cent., upon the basis of the roll of 1893. Just how this affected the roll of 1894 does not appear, as neither roll is included in the printed record; but that it made a sweeping change is asserted by counsel, and not denied, and we therefore feel justified in so treating it. These changes might, perhaps, have been lawfully made a week earlier, when it was the duty of the board to meet; but the law, in express terms, excludes the authority of the board to make changes upon their own motion at a later date. See sections 29, 30, Act No. 206, Pub. Acts 1893, which say, referring to the Tuesday and Wednesday following the third Monday in May, that “if, for any cause, a quorum does not assemble during the days above mentioned, the roll as prepared by the supervisor shall stand as if approved by the board of review.” We are unable to determine what the defendants’ properties were valued at in the original roll, or the aggregate valuation of such roll, which we should have to know were we to attempt to ascertain their just proportion of taxes upon their original assessment. It is contended that this is within the curative section 99, which says that “no tax * * * shall be held invalid * * * on account of any assessment or tax roll not having been made or proceeding had within the time required by law.” We think, however, that this was clearly prejudicial, and therefore not within the terms of the section mentioned. This rendered invalid all taxes upon the roll of the township of Wakefield.

The point last mentioned is alleged to apply to the township of Watersmeet. The record is, upon its face, correct, but oral testimony was given by an agent of one or more of the parties that, previous to the last meeting of the board, this roll was completed only to the twenty-seventh page. The learned circuit judge held so much of the same valid, and the remainder invalid. This testimony was not disputed, and we do not discover a denial of the fact. We are therefore of the opinion that any assessments against these defendants appearing upon pages following page 27 of the roll were invalid, if there were any such, — a fact that we seem to have no means of determining from the printed record in the cáse. This will result in the exclusion of all such taxes in this township, except as to defendant Ayer, for whom Kuppe did not appear before the board of review, and who is said to have made no such objection to the tax.

It is also urged that the township, highway, and school taxes of this township are illegal, for the reason that they were voted by the township board and board of education, respectively, and that it does not appear that the electors neglected or refused to vote the same. The record of the board shows that at a meeting of the township board held June 21, 1894, the following resolution was adopted:

Whereas, it appearing to this board that the electors of the township of Watersmeet, at the annual township meeting held in said township on Monday, the second day of April, 1894, failed to vote money for the several funds . of said township; therefore,
“Resolved, that the sum of one thousand dollars be raised by tax for the contingent expenses of said township for the year 1894.”

The township constituted a single school district, under Act No. 176 of the Public Acts of 1891. At a meeting of the board of education held August 20, 1894, the following resolution was adopted:

Whereas, at the annual township meeting held on the second day of April, 1894, the electors hereby failed to vote the amount of tax to be raised for school purposes:
“Resolved, that the amount of tax for general school purposes for the ensuing year be $2,500.00.”

The highway tax was levied under a resolution adopted by the township board of highway commissioners, reading as follows:

Whereas, it appearing to the township board of highway commissioners of the township of Watersmeet that the electors of said township, at the annual township meeting held on the second day of April, 1894, failed to vote a highway tax in' said township; therefore,
Resolved, that a highway tax of one-half of one per cent, be raised on the valuation of ah real and personal estate in the said township on the assessment for 1894.”

The records of the township were before the court, and it was conceded upon the hearing that there is nothing in the records to show that the electors of the township ever voted any of the taxes that year, with the exception of the town-hall tax, and that they fail to show that the questions were submitted to the electors at the annual meeting.

3 How. Stat § 750, provides:

“Whenever the qualified electors of any township, at the annual township meeting, shall neglect or refuse to vote such sums of money as may be necessary to defray the ordinary township expenses, the township board of any such township is hereby authorized, at any regular meeting, to vote such, sum or sums as may be necessary fqr that purpose, not exceeding in any one year the sum of one thousand dollars.”

Section 9, Act No. 176, Pub. Acts 1891, provides:

“ At each annual township meeting held in said township, the qualified electors present shall determine the amount of money to be raised by tax for all school purposes for the ensuing year: Provided, that in case the electors at any annual township meeting shall neglect or refuse to determine the amount to be raised as aforesaid, then the board of education shall determine the same at any regular meeting thereof.”

The record of the annual meeting must be supposed to show all questions voted upon. It appears that the raising of money for a town hall was submitted, but there is nothing indicating the submission of other questions; and it cannot be presumed that action was taken, when we have the record of the meeting, and it fails to show it. Nor can it be helped by the resolutions, inasmuch as they do not show neglect or refusal, but merely a failure, to vote the taxes, and, under both statutes quoted, the boards are permitted to act only in case of neglect or refusal.

The highway tax was raised under a different act, viz., 3 How. Stat. § 1356, which permits the board to provide for a tax if the annual meeting fails to do so. This section applies to cases where, as in this case, the township has voted a money tax for highway purposes, under sections 1354, 1355, 3 How. Stat.; such cases not being governed by section 1328, 3 How. Stat., which applies to moneys raised for roads and bridges by the highway commissioner. That section was considered in the case of Auditor General v. Railway Co., ante, 122. We are therefore of the opinion that the latter tax was valid, while the township and school taxes were illegal, in this township of Watersmeet, except the town-hall tax.

The supervisor of the township of Ironwood failed to incorporate in his roll any valuation of property. This was supplied, by the board of review. It was the duty of the supervisor to place such values opposite the descriptions, but the law has provided a remedy if he should fail to do so, by providing that the board of review shall add to the roll “the names of persons, the value of personal property, and the description and value of real property liable to assessment in said township, omitted from such assessment roll; they shall correct all errors in the names of persons, in the descriptions of property upon such roll, and in the assessment and valuation of property thereon; and they shall cause to be done whatever else may be necessary to make said roll comply with the provisions of this act.” Act No. 206, Pub. Acts 1893, § 29. As the roll was seasonably completed by the board, we need not consider this question further.

The validity of the tax for the city of Ironwood is attacked upon several grounds, — among them, the changes made by the board of review. The record of the board shows that it met on June 11th, and every day thereafter, up to and including Saturday, when it adjourned to Monday, June 18th. If a meeting was held that day, it is not shown by the record; but it appears that on June 19th the board met and made various changes, and adjourned sine die. It is claimed that the roll shows that many changes were made in valuations that are not mentioned in the record of proceedings, and it is also alleged that their certificate is bad, for the want of the signatures of a majority of the council. We have no evidence that the board did not meet on Monday, except the absence of a record for that day; and the absence of such record is not conclusive of their authority to continue their sessions for so many days as were necessary under the charter (section 2, chap. 13, Act. No. 235, Local Acts 1893). It does not appear that any of these defendants sought or were denied a hearing before such board, or that the board took any action not authorized by law. The informality in the certificate, if there be any, is within the curative provisions of the tax law. Section 99, Act No. 206, Pub. Acts 1893. See Auditor General v. Hutchinson, 113 Mich. 245.

The city taxes were voted at a special meeting. It is conceded that the taxes were ordered in due form, but it is contended that they are void for the reason that the record of the council does not show that the members were duly notified of the call for the meeting, inasmuch as it fails to show that all members were present- If, under the charter (Act No. 235, Local Acts 1893, chap. 9, § 1), it is necessary that proof be made of the summoning of members of the council, there is no intimation that it must appear upon the record of the proceedings; and we cannot presume that proof is not on file, or, if it were shown to be not on file, that it was not properly filed. See Act No. 206, Pub. Acts 1893, § 99. We ,are cited to several Michigan cases supposed to be at variance with this rule, but they are not. In Township Board of Beaver Creek v. Hastings, 52 Mich. 528, there was an application for mandamus to compel the clerk to record the proceedings of a meeting of a township board at which it was not shown that the same had been duly called and members notified. It was denied. But it is not in any sense authority for the proposition that proof of a valid call and notice must appear upon the record of the meeting, if held, or that a presumption of regularity does not arise upon the record of a special meeting. In Harding v. Bader, 75 Mich. 321, it was held that the records of a township must show that all members were notified or present, to make action taken at. a special 'meeting to raise money valid. This was based upon 1 Dill. Mun. Corp. §§ 262, 263, 286. This case was followed in the case of Auditor General v. McArthur, 87 Mich. 457. But neither of these authorities limits the proof to the journal of the board, and, in the absence of proof that they were filed, the presumption, under section 99 of the tax law, renders the action prima facie valid. The case of Newaygo Co. Manfg. Co. v. Echtinaw, 81 Mich. 416, recognized the presumption of regularity by presuming that the two justices present were those whose terms of office would soonest expire; and in the case of Boyce v. Auditor General, 90 Mich. 324, it was said that the law does not require entry of such proof, and implied that it will not be presumed that proof of notice does not exist. "We think the proceedings of the council are prima facie valid.

The school taxes are conceded to have been voted at an adjourned session of the annual meeting, held to hear the report of an auditing committee, and for other business. Contestants’ brief says that they claim that the purpose of adjournment was not to vote taxes; that the laws covering-school districts provide for a date for the annual meeting, at which taxes shall be voted; that there is no provision of law for adjournment of the annual meeting; that the adjournment in this case was taken without authority; and that there was no authority to vote any taxes at such meeting. This statement of claims is unsupported. The only authority cited is 1 Dill. Mun. Corp. § 286, and notes, which we find does not support the contention; but the next section (287) says:

‘ ‘A regular meeting, unless special provision is made to' the contrary, may adjourn to a future fixed day; and at such meeting it will be lawful to transact any business which might have been transacted at the stated meeting, of which it is, indeed, but the continuation.”

We have always understood that the annual school meeting is a regular, not a special, meeting. It is fixed by law, and requires no call or notice.

We think that the verification of the delinquent list applied to the whole list, though included in two books, and, were it otherwise, the alleged defect worked no injury to-the defendants; and the same is true of the failure of a majority of the board of review to sign the certificate to the roll, if they did not do so.

jRecapitulation: The county and State taxes are all valid, except in the township of Wakefield, and all lands, listed after page 27 in the roll for Watersmeet township. County-road taxes are all invalid. The township taxes in the townships of Marenisco, Bessemer, and Ironwood are valid. All taxes in Wakefield are illegal. ' In Waters-meet township, the township and school taxes, except town-hall tax, are illegal, and the highway tax is legal. Onr understanding is that, upon behalf of defendant Ayer, only the township, highway, and school taxes in the township of Watersmeet are questioned. The decree of the circuit court will he modified as indicated herein, and, upon the settlement of the decree in this court, the amounts due from the several defendants will be determined, if practicable, from the record, and the rights of defendant Ayer in relation to taxes other than those mentioned will be settled, if the foregoing statement in relation thereto is inaccurate. Defendants will recover costs of this court, and complainant will recover costs of the circuit court.

Montgomery, Moore, and Long, JJ., concurred. Grant, C. J., did not sit.


source: Caselaw Access Project

author: Grant, C. J.

license: Public Domain

text:
    THOMAS v. WALKER TOWNSHIP BOARD.
    1. Drains — Assessment for Benefits — Appeal to Township Board.
    The duty of the township board, under chapter 5 of the drain law of 1885 (3 How. Stat. § T740e2 et seq.), upon the appeal of a landowner assessed for benefits, is confined to the correction of any error or inequality in the assessment made by the commissioner upon the lands benefited; it having no authority to pass upon the validity of the drain proceedings, or to review the action of the commissioner in fixing the percentage of the cost to be borne by the township at large.
    2. Same — Parties.
    Therefore, where a drain is established by the joint action of the commissioners of two counties, and the owner of lands assessed for benefits appeals to the township board of the township in which his lands so assessed are situated, the drain commissioner of the other county is not a necessary party to the appeal.
    3. Same — Assessment District — Review.
    The authority of the township board to correct any “ error or inequality ” in the assessment does not extend to the changing of the boundaries of the assessment district by excluding lands which the commissioner has determined to be benefited by the drain.
    4. Same-Reversal in Supreme Court — Procedure.
    Where a township board, upon the appeal of a landowner assessed for drain benefits, attempted, in excess of its authority, to exclude certain of the lands as not assessable, and failed otherwise to pass upon the errors and inequalities alleged, it was directed by the Supreme Court, upon the reversal of a judgment of the circuit court sustaining its action, to reconvene and review the assessment in accordance with the statute.
    Error to Kent; Grove, J.
    Submitted January 26, 1898.
    Decided April 19, 1898.
    . Certiorari by John M. Thomas, drain commissioner of Kent county, to review the decision of the township board of the township of Walker upon an appeal from an assessment for drain benefits as made by the commissioner. From a judgment sustaining the action of the board, petitioner brings error.
    Reversed.
    Application was made to the county drain commissioner of Ottawa county in 1896 to construct a. drain commencing and ending entirely in Ottawa county. That commissioner, finding that the said drain affected lands lying in Kent as well as in Ottawa county, called a meeting of the two commissioners of the counties. The meeting was held, survey made, and the drain oi'dered. A special drain assessment district was established, and the cost of the improvement was computed, and apportioned between the two counties. Sixty per cent, was apportioned to Ottawa county, and 40 per cent, to Kent county. The drain commissioner of Kent thereafter apportioned to the township of Walker at large one-half of the 40 per cent., and the remaining half to lands liable to be assessed for benefits by reason of the improvement. The commissioner thereupon made out a special assessment roll, containing a description of the lands to be assessed, with the required certificates. An appeal was taken from these proceedings to the township board of the township of Walker. The board met and made the following report:
    “This is to certify that, pursuant to notice duly given, we, the undersigned, constituting the township board of the township of Walker, in said county, for the purposes hereof, did on the 12th day of October, A. D. 1896, meet at the residence of E. P. Tucker, in said township, to consider the matter of appeal taken by [the parties, naming them] from the assessment and apportionment of the per cent, of benefits assessed for the construction of a certain drain in the township of Tallmadge, Ottawa county, known and designated as the Friar and Kimble drain, as made by J. M. Thomas, the county drain commissioner of said county of Kent; that, at the time and place aforesaid, we proceeded to view the grounds, and to review the said assessment and apportionment made by the said drain commissioner, and to hear the proofs and allegations of all parties in respect to .the matter of said appeal; that, in our judgment, there is manifest error and inequality in said apportionment, owing to the fact that the natural flow of water is in an opposite direction in the case of the lands described and marked ‘Not assessable’ in the annexed schedule, and we hereby order such lands to be stricken from the special assessment roll. As to the balance of the lands described in said annexed schedule and in said special assessment, as well as the township at large, we find that, while the natural flow of water is towards said described drain, the said lands are all high and naturally well drained, and are in no wise benefited by the construction of said drain, and are not legally assessable therefor; and we hereby protest against the assessment of such lands or of the township at large for the purpose of said construction.”
    Here are inserted the descriptions marked “Not assessable.”

      ‘ ‘ The above-described lands that are not assessable the natural flow of water is in an opposite direction, while those that are assessable appear to incline in the direction of said drain.”
    This action of the board was removed to the circuit court of the county of Kent upon a writ of certiorari, and was sustained. It is brought to this court upon a writ of error.

      W. D. Fuller, for appellant.

      Wolcott & Ward, for appellee.
   Grant, C. J.

(after stating the facts). We find only one case in this court-involving the power and jurisdiction of the township board upon appeals from the action of the commissioner under the statute of 1885. Gillett v. McLaughlin, 69 Mich. 547. It was there held that the board had no power to change the per cent, of the drain assessment to be borne by the township after the commissioner had fixed it. The law governing these assessments, and providing for appeals therefrom, is found in' chapter 5 of the drain law. 3 How. Stat. § 1740e2 et seq. Section 1 authorizes the commissioner to apportion the per cent, of the cost of construction of a drain to any township traversed thereby, by reason of the benefit to the public health, convenience, or welfare, or as a means of improving any highway. He must assess the cost of such drain, over and above the per cent, assessed against such township, to lands benefited thereby.

“Such assessment of per cent, for benefits shall thereupon be subject to review and correction, and may be appealed from in the manner hereinafter provided: Provided, that * * * when the lands to be assessed therefor are situated in more than one township, the commissioner shall first determine and apportion, among such several townships, the per cent. * * * which each township and the lands therein situated is to bear. From this determination there shall be no appeal.”

Section 2 provides that the owner of any lands assessed a per cent, for benefits may appeal to tbe township board of the township in which his lands so assessed are situated. Section 3 provides for the notice to be given of the meeting of the board, and that “at such hearing the board shall have the right to review all assessments.” It then provides that the proceedings in establishing any drain shall be subject to review upon certiorari, notice of which shall be served on the commissioner within 10 days after his determination in establishing the drain, and that—

“If no certiorari be brought within the time herein prescribed, the drain shall be deemed to have been legally established, and its legality shall not thereafter be questioned in any suit at law or equity.”

Section o provides that the board shall proceed—

“To view the grounds, and to review the assessments made by the commissioner, and to hear the proofs and allegations of all parties in respect to the matter of such appeals, and if, in their judgment, there be manifest error or inequality in such assessments, they may order such changes to be made as they may deem just and equitable.”

1. It is clear from these provisions that the township board is not clothed with authority to determine the validity of the proceedings taken by the commissioner of Kent county, or the joint action of the commissioners of the two counties, or to change the per cent, assessed upon the township at large. Its power is confined exclusively to the correction of any “error or inequality” in the assessment made by the commissioner upon lands benefited. Any person or township desiring to contest the validity of the action of the commissioner, or of the two commissioners, in laying out and establishing the drain, must resort to the courts, and not to the township board. It follows that the commissioner of Ottawa county was not a necessary party.

%. There is no difficulty in determining what is meant by the term “inequality.” The township board may determine that the benefits assessed upon some lands are too high, and upon others too low, and may exercise their judgment to equalize the assessment. A question of some difficulty arises as to what is included within the term “error.” The commissioner might make an error in the amount, so that the total assessments would be more or less than the total amount apportioned to the lands. This would be error which the board could correct. But does the statute contemplate that the board may change the assessment district as fixed by the commissioner, and exclude any lands which, in its judgment, ai’e not benefited ? Does the term “ error ” mean that the commissioner erred in his judgment as to the lands which are and those which are not benefited ? The logical result of this holding would be that the board might determine that none of the lands were benefited, and thus defeat the construction of the drain. In this case the assessment district contained about 712 acres, as fixed by the commissioner. Of this about two-thirds was directly held by the board to be nonassessable, and though the board seems, in the closing sentence of the report, to hold that the others are assessable, it said in a previous part of the report that they were not legally assessable. The members of the board seemed to recognize that they had no power to set aside the assessment upon the township at large, and contented themselves with a protest against it. The board is evidently not clothed with power to enlarge the assessment district. It is only by implication that it can be held to possess the power to restrict the district. It is clearly not clothed with power to wipe the district out entirely, and thus defeat the action of the commissioner. If the drain be legally established, — and, so far as this case is concerned, it must be so held, — the result would be the total failure to raise 20 per cent, of the cost. We are therefore of the opinion that the board had no power to change the boundaries of this district, and to exclude lands which the commissioner had determined were benefited. It may correct the inequalities, and place as little upon such lands as it chooses. In this respect its power is supreme, and from its action there is no appeal.

Those who appeal to this board are entitled to have the board pass upon such errors or inequalities. This it has not done, and it would be manifestly unjust to have the assessment made by the commissioner stand, and thus deprive the appellant of the benefit of his appeal. It follows that the judgment must be reversed, and the township board directed to meet and review the assessments in accordahce with this opinion.

The other Justices concurred.


author: Montgomery, J.

text:
    SCHULZ v. BROHL
    Deeds — Construction.
    Under a deed to two persons, “to them and the survivor of them, parties of the second part,” the grantees take each a moiety for life, with remainder to the survivor in fee, although the grant, in terms, is “to the parties of -the second part, and to their heirs and assigns.”
    Appeal from Wayne; McMahon, J., presiding.
    Submitted February 1, 1898.
    Decided April 19, 1898.
    Bill by Christine Schulz, by Charles Schulz, her guardian, against Joseph Brohl, to quiet title. From a decree dismissing the bill on demurrer, .complainant appeals.
    Reversed.

      William E. Henze, for complainant.

      Franz C. Kuhn (Edward A. Barnes and U. Grant Race, of counsel), for defendant.
   Montgomery, J.

The bill in this case was filed to quiet title. April 17, 1884, a deed was made by Caroline Schulz, the main provisions of which were as follows:

“This indenture, made this seventeenth day o£ April, in the year of our Lord one thousand eight hundred and eighty-four, between Caroline Schulz, of Detroit, Michigan, party of the first part, and Peter Brohl and Christine Schulz, of Q-rosse Pointe, Wayne county, Michigan, to them and the survivor of them, parties of the second part, Witnesseth:
“That the said party of the first part, for and in consideration of the sum of eleven hundred dollars ($1,100), to her in hand paid by the said parties of the second part, the receipt whereof is hereby confessed and acknowledged, does by these presents grant, bargain, sell, remise, release, alien, and confirm unto the said parties of the second part, and their heirs and assigns, forever, all that certain piece or parcel of land situate and being in the city of Detroit, county of Wayne, and State of Michigan, known and described as follows, to wit: Lot nineteen (19) in block sixteen (16) of the Witherell farm, being on the north side of Watson street, — subject, however to a certain mortgage for seven hundred dollars ($700), dated January 4, 1882, made by August Schulz and Caroline Schulz, of Detroit, aforesaid, to James Dewey, of the same place, and recorded in the register of deeds’ office for said county, in Liber 161 of Mortgages, on page 330; and also to all unpaid taxes and assessments upon said premises.
“Together with, all and singular, the hereditaments and appurtenances thereunto belonging or in any wise appertaining: To have and to hold the said premises, as above described, with the appurtenances, unto the said parties of the second part, and to their heirs and assigns, forever. And the said Caroline Schulz, party of the first part, for herself and her heirs, executors, and administrators, does covenant, grant, bargain, and agree to and with the said parties of the second part, their heirs and assigns, that at the time of the ensealing and delivery of these presents she is well seised of the above-granted premises in fee simple; that they are free from all incumbrances whatever; and that she will, and her heirs, executors, and administrators shall, warrant and defend the same against all lawful claims whatsoever, excepting said mortgage, which the parties of the second part assume and agree to pay.”

January 2, 189?, Peter Brohl, by quitclaim deed, conveyed the premises to Joseph Brohl, reserving a life estate. Peter Brohl died February 1, 189?. Complainant claims a sole ownership since the death of Peter Brohl, but defendant, Joseph Brohl, claims that the deed from Caroline Schulz created a tenancy in common in complainant and Peter Brohl, and that -a moiety passed to defendant by the quitclaim from Peter Brohl. The case turns, therefore, on the construction of the deed from Caroline Schulz. What estate did it convey ? If we confine ourselves to the granting clause, the defendant’s contention is found to be fully sustained. But, referring to the premises, it is clear that the conveyance is made to Peter Brohl and Christine Schulz and to the survivor of them. It is contended that as these words are not contained in the granting clause, and that as the grant is to the parties of the second part and their heirs, the granting clause should' control, in preference to the premises. In a doubtful case, this is the rule; but we are of the opinion that, on the whole deed, the intention is not doubtful. It is no stretch to read the word “parties” in the deed, wherever it occurs, with the additional designation contained in the premises. If we do this, the only possible ambiguity arises out of the fact that the plural was used, with reference to heirs, by the scrivener. We think the plain intent should not be defeated by this slip. The fact that the plural is often used when the singular is intended is recognized, and therefore it is provided that, in construing statutes, words importing the plural number may be applied and limited to the singular. 1 How. Stat. § 2, subd. 2. The purpose in construing deeds is to ascertain the intent of the parties as manifested by the instrument. Moran v. Lezotte, 54 Mich. 83; Munro v. Meech, 94 Mich. 596. This intent was, as we construe this deed, to convey a moiety to each of these parties for life, with remainder to the survivor in fee. Neither grantee could convey the estate so as to cut off the remainder. Ewing’s Heirs v. Savary, 3 Bibb, 235; 1 Washb. Real Prop. *413.

The decree will be reversed, and case remanded for further proceedings.

The other Justices concurred.


text:
    WEIST v. MORLOCK.
    Appeal — Review on Findings — Assignments of Error.
    Where a ease is tried before the court without a jury, and no exceptions are taken to the findings of fact and law by the court, the only question that can be raised upon appeal is whether the findings support the judgment; and that question is not open for consideration unless it is made the basis of an assignment of error.
    Error to Berrien; Coolidge, J.
    Submitted April 5, 1898.
    Decided April 19, 1898.
    Trover by Sophia Weist, administratrix of the estate of Mary Breidinger, deceased, against Frank Morlock. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      James O'Hara and Cassius M. Van Riper, for appellant.

      JEdward Bacon and George W. Bridgman, for appellee.
   Grant, C. J.

This case involves $300, and was tried before the court without a jury. The court made written findings of facts and law, to none of which were any exceptions taken. Several errors are assigned upon both. Under the repeated decisions of this court, the only question open for decision is whether the findings support the judgment. Upon this point there is no allegation of error, and it is not argued in the brief. It is not, therefore, open for consideration. Cook v. Burnett, 83 Mich. 251. We have, however, examined the findings sufficiently to hold that they support the judgment.

Judgment affirmed.

The other Justices concurred.


text:
    MILLER v. HAHN.
    1. Assumpsit — General Issue — Evidence.
    In assumpsit against an officer to recover moneys paid on an execution issued upon a void judgment, the execution is admissible in evidence under a plea of the general issue.
    2. Public Officers — Execution—Void Judgment — Damages.
    An execution valid on its face protects a public officer against an action for damages resulting from its enforcement, even though the judgment on which it is based is invalid, and the debtor threatens to make him trouble if he enforces it.
    3. Same — Fees.
    An officer who enfolds an execution valid on its face is not liable in assumpsivkox fees collected under the writ, even though the judgment on which it was issued is invalid.
    Error to Macomb; Eldredge, J.
    Submitted April 5, 1898.
    Decided April 19, 1898.

      Assumpsit by William H. Miller against August R. Hahn to recover moneys paid to defendant, as deputy sheriff, to satisfy an execution issued upon a void judgment.. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Byron R. Erskine, for appellant.

      Crocker <& Knight (T. M. Crocker and James G. Tucker, of counsel), for appellee.
   Montgomery, J.

The questions presented in this case arise upon exceptions to findings of law by the circuit judge. The defendant is a deputy sheriff. On the 6th of March, 1895, an execution regular in form was issued by a justice of the peace, and placed in defendant’s hands. The execution commanded him to make the amount of the recited judgment, with costs and costs of the execution, out of the property of William Miller (the plaintiff in the present action). Defendant, under this writ, made a levy, and seized three horses belonging to plaintiff. Plaintiff thereupon paid to defendant the amount of the execution and costs, which the officer turned over to the magistrate, retaining his own fees, amounting to $2. This action was afterwards brought to recover in assumpsit the money thus paid to defendant. The judgment on which this execution issued was void. The defendant prevailed at the circuit, and plaintiff brings error.

Three contentions are made:

(1) That the defendant could not give the execution in evidence under the general issue.
(2) That the officer cannot justify under his execution alone, but must, in addition, show a valid judgment.
(3) That, in any event, the plaintiff is entitled to recover the amount retained by the officer as fees.

1. The defense was admissible under the plea of the general issue. In trespass for taking property, it is true, the defendant must give notice of justification when he relies upon a writ; but this is because the plaintiff’s case is made by showing a taking prima facie wrongful. In assumpsit, however, before the .plaintiff entitles himself to recover, he must( show that the money which was paid was paid under such circumstances that the law will raise a promise to repay. The geberal issue raises this question. Wilson v. Wagar, 26 Mich. 452; Berringer v. Lake Superior Iron Co., 41 Mich. 305. The plaintiff knew, when the payment was made, that the defendant was-proceeding under thp writ in his hands. He made payment of the money to him, relying on his supposed right to recover money paid under such circumstances. The writ no longer remains in defendant’s hands. If the declaration had been special, it would have been good pleading for plaintiff to set out the circumstances under which the money was paid, and particularly what constituted the alleged duress. He not having done so, but having declared generally, the defendant was entitled to give the facts in evidence under the general issue.

2. This action cannot be maintained. The rule is elementary that a writ valid on its face protects a public officer against an action for damages resulting from its enforcement, even though the judgment on which the writ is based be invalid. So far as we know, this rule is universal. Ortman v. Greenman, 4 Mich. 291; 1 Freem. Executions, § 101; Cooley, Torts, 459; Mich. Pub. Off. § 768. Nor was the defendant bound to suspend action because the execution debtor threatened to make him trouble. Foster v. Wiley, 27 Mich. 244 (15 Am. Rep. 185). The cases relied upon by the plaintiff yyere cases in which the right to the property was involved, and in which the officer was an indifferent and nominal party.

3. We see no reason for holding that the officer should be held liable for the fees recovered on the execution. The collection of these fees was an act directly within the command of his writ.

Judgment affirmed, with costs.

The other Justices concurred.


text:
    GILBERT v. MICHIGAN CENTRAL RAILROAD CO.
    Trial — Hostile Witness — Leading Questions — Conduct op Counsel.
    The court may in its discretion permit counsel, in the examination of a hostile witness called by him, to put leading questions with reference to his testimony upon a previous occasion, and to state the grounds upon which he relies as justifying such course; care being taken to check promptly any apparent effort to make the statement the means of bringing inadmissible matter to the attention of the jury.
    Error to Bay; Maxwell, J.
    Submitted April 5, 1898.
    Decided April 19, 1898.
    Case by Frederick L. Gilbert and Isabella I. Webster against the Michigan Central Railroad Company for negligently setting fire to plaintiffs’ land. From a judgment •for plaintiffs, defendant brings error.
    Affirmed.

      E. Á. Qooley, for appellant.

      T. E. Webster (John E. Simonson, of counsel), for appellees.
   Hooker, J.

In the circuit court the plaintiffs recovered a verdict and judgment in an action brought to recover damages for an injury to land alleged to have been suffered through the negligent setting of fire by the defendant’s section men. The defendant has removed the cause to this court by writ of error.

The plaintiffs called as a witness the section foreman who had in charge that portion of the defendant’s railroad upon which it is claimed that the fire which caused the injury was set, and he gave testimony concerning the burning of rubbish under his direction about the time that plaintiffs’ property was burned. He was examined at length by counsel for the defendant, as well as by counsel for the plaintiffs, in relation to the setting of fires, and testified that he saw the fire which did the injury when it started, a short distance from defendant’s right of way, at a time after the extinguishment of all fires set by the defendant’s employés. On redirect examination the following occurred:

“ I cannot say what time of day it was I set the fire on the 22d of July, — whether it was forenoon or afternoon. There were no ties burned at that time.
‘ ‘ Q. Let me call your attention to your testimony before in relation to the burning of ties. Did you not testify that there might have been one or two piles of ties that burned P (Objected to as incompetent, immaterial, and he cannot cross-examine his own witness. Objection overruled, and exception duly taken.)
“A. I couldn’t say whether there were any piles of ties burned along the Rudel land and the Hirschmann land. I might have said it.
Q. Are you still in the employ of the defendant in this-case ? ( Objected to as incompetent and immaterial. Objection overruled, and exception taken.)
“A. Yes, sir. At the time we burned our grass and rubbish, any fire we saw out there we dug out. At that time no fire got outside the right of way. We dug out any fire that we saw running through the ■ fence or up to the fence.”

One Frank was called as a witness for the plaintiffs. He testified that upon July 28th he saw the section men set fire to some cocks of hay, and that on the 31st of July he-saw the muck burning, and that no one was looking after it. He also testified to the action of the fire of August 2d, when the injury was done to the plaintiffs’ property. In the course of the direct examination of this witness the following dialogue occurred:

Q. State whether or not you were where you could see the right of way. (Objected to as leading. Objection overruled, and exception duly taken.)
‘‘A. Yes, sir; I was in plain view of the right of way.
Q. Whom did you see, if any one, in the employ of the railroad company, looking after the fire that was burning on the right of way, or that had been set by them in the right of way, between the 38th of July and the 3d day of August? (Objected to, that there is no evidence that there was any fire burning at that time set by the railroad men.)
The Court: If he did, he can state it. • On the former trial, the foreman, Brown, testified that they whipped it out and went away.
“Mr. Webster: Mr. Brown’s evidence is a little different on this trial from what it was on the other. Now he says he did not set any fire.
“Mr Cooley I object to the statement of counsel, and ask that it be stricken out.
' ‘ The Court: The jury will be instructed not to consider it.
“Mr Cooley: Instructions don’t do much good after-wards.
The Court* It will have to be. The question is leading.
“Mr. Cooley: I take exception to the refusal of the court to strike the remark of counsel out. ”

The witness Brown being recalled, upon his examination by counsel for the plaintiffs the following occurred:

Q. I understand you to have testified yesterday that you set no fires opposite the Rudel land or the Hirschmann land. Is that true ?
“A. I burned the grass that was along there.
Q. In 1894 you did burn the stuff that was along the Rudel land ?
“A. I did. About the'33-d or 33d of July, as near as I can remember, I set fire on the right of way opposite theRudel land. I commenced at the south end of the section about the 31st or 33d, and kept burning it, and it took about three days to burn it. The section extends about five miles.
Q. Do you remember when this big fire was that broke out and spread over the land ?
“Mr. Cooley: That has been gone through with. What is the object of this?
“Mr. Van Kleeck: In the other trial his testimony was somewhat different as to the setting of the fire along the Rudel land, and seeing the fire cross the Rudel land onto the Hirschmann land.
“Mr. Cooley: This is their witness, and they have no right to cross-examine, and it is neither fair nor proper for counsel to refer here to what occurred in some other trial, because they would not be permitted to show it, and I take exception to counsel making any such statement in the presence of the jury.
“Mr. Van Kleeck: If this witness has not testified as he did two or three weeks ago, and as we expected he would, and if we have been surprised by that, and if he is a witness that is opposed to us, which is true, we have a right to pursue his examination by leading questions, by calling his attention to what was said before and the testimony given on the former trial.
“Mr. Cooley: I take exception to the remarks.
“Mr. Webster: It was necessary for us to call him, and we called him to show that he had the authority from the railroad company to set those fires, and that it was his duty to set them, and we called him for that purpose and no other. He is a witness in the employ of the Michigan Central Eailroad Company, and was at that time, and the only one we could rely on to prove the authority. In his former testimony he claimed he set the fires. In his testimony yesterday—
“Mr. Cooley: I take exception.
“Mr. Webster: He said he did not set the fires along there. This morning he says he did set the fires. That was the object of re-examining him.
'Mr. Cooley: I take exception to the remarks of counsel.”

One Michael Summerfield was called to prove the value of, and injury to, the land, and it is alleged that he did not show himself competent to testify.

We are of the opinion that there is nothing in the foregoing questions that would justify a reversal of the judgment. It was competent for the plaintiffs to call Brown as a witness, and it was within the discretion of the court to permit his recollection to be refreshed; and, within proper bounds, counsel might state the grounds upon which they relied as justification for the questions to which opposing counsel objected. Care should be used in such statements, and the circuit judge should promptly check any apparent effort to make them the opportunity for the assertion of matters which are inadmissible. "We must, however, depend upon the circuit judges to correct the less important matters of this kind, which we must assume that they will do, where brought to their attention by proper request.

A question is raised over the introduction of evidence of injury to a road which was wholly or in part upon the plaintiffs’ premises; but, as the record shows that no damages were awarded for this, it is unnecessary to consider it.

The judgment is affirmed.

The other Justices concurred.


author: Moore, J.

text:
    McKILLOP v. BOARD OF SUPERVISORS OF CHEBOYGAN CO.
    1. Boards of Supervisors — Payment of Claim — Mandamus.

      Mandamus is the proper remedy to compel a board of supervisors to pay the bill of a health officer, duly allowed and certified by the township board of health, for services rendered during an epidemic by direction of such township board.
    2. Same — Suppression of Epidemic — Physician’s Services — Contract of Township Board of Health.
    A board of supervisors has no authority to disallow a portion . of a physician’s charges, as allowed and certified by the board of health of a township, for services rendered under the direction of the latter board in time of epidemic, upon the ground that some of the persons to whom the services were rendered were financially able to pas'- for them.

      Certiorari to Cheboygan; Adams, J.
    Submitted April 5, 1898.
    Decided April 19, 1898.

      Mandamus by Archibald J. McKillop to compel the board of supervisors of Cheboygan county to allow a claim for services as health officer during an epidemic of diphtheria. From an order denying the writ, relator brings certiorari.

    Beversed.

      Shepherd & Reilley, for relator.

      H. W. Harpster and S. B. Roe, for respondent.
   Moore, J.

In 1894 an epidemic of diphtheria prevailed in the township of Nunda, Cheboygan county. There were so many cases that the schools were closed, and prompt action became necessary. The relator is a practicing physician. An arrangement was made with him by the board of health of the 'township that he should take charge of the patients as physician and nurse, and bury the dead, if any; that supplies should be furnished through him; that he should quarantine the houses where there were cases of the disease, and take all necessary steps to check and control the disease. There were between 30 and 40 cases, and a number of deaths. The relator carried out the instructions of the board, and gave nearly all his time to the work. In December, 1894, he presented a bill for his services, to the board of health, for $647, which was allowed and certified. Later he presented0 a bill for $179.25, which bill was also allowed and certified. These bills were afterwards presented to respondent. The first one was allowed at $500, and the second one at $100. The relator then filed a petition in the circuit court for a writ of mandamus to compel the respondent to pay all his bills as allowed by the township board of health. An answer was filed, and a trial had before a jury. Questions of fact were submitted to the jury, which, with their answers, were as follows:

“1. Was relator a regular practicing physician, duly qualified to practice under the laws of the State of Michigan?
“Answer. Yes.
“2. Did relator perform the services for which he presented his bill of account?
“Answer. Yes.
“3.' In auditing relator’s bill, did the board of health of the township of Nunda fraudulently combine with relator to allow same ?
“Answer. No.
“4. Was relator a member of the board of health of the township of Nunda, and did he take part in auditing his own bills ?
“Answer. No.
“5. In auditing relator’s bill, did the board of health of the township of Nunda carefully consider same, and allow same at what they considered his services worth, and as a charge against the county of Cheboygan ?
“Answer. Yes.
“6. Did relator protest against the allowance of his bills in part by the board of supervisors ?
“Answer. Yes.
“7. Were the services rendered by the relator in the treatment of persons affected with a contagious disease and residing within the county of Cheboygan ?
“Answer. Yes.”

The answer stated that the portions of the bills not allowed were not allowed because some of the persons treated were able themselves to pay for treatment. As no issue was framed on this statement, the circuit judge held that it must be deemed to be true. The judge regarded the verdict of the jury as advisory simply, and denied the writ for two reasons: First, because mandamus was not the proper remedy; second, because services rendered to patients able to pay would not be a charge against the county, — basing his decision upon Farnsworth v. Supervisors of Kalkaska Co., 56 Mich. 640.

As to the first reason, as early as 'the case of People, ex rel. Bristow, v. Supervisors of Macomb Co., 3 Mich. 475, it was decided in this court that mandamus was the proper remedy in these cases, and from that time until now mandamus has been regarded as the proper remedy. Farnsworth v. Supervisors of Kalkaska Co., supra; Flliott v. Supervisors of Kalkaska Co., 58 Mich. 452 (55 Am. Rep. 706); Safford v. Detroit Board of Health, 110 Mich. 81; Village of St. Johns v Supervisors of Clinton Co., 111 Mich. 609.

As to the second reason assigned for not issuing the writ In Farnsworth v. Supervisors of Kalkaska Co., supra, part of the claim disallowed by the board of supervisors was for services rendered without any direction of the board. The other claim disallowed was for services rendered by a physician who was a member of the township board of health. There is language used in this opinion that tends to support the view taken by the trial judge of this case. But we think the later case of Elliott v. Supervisors of Kalkaska Co., supra, should control. In the last-named case the relator’s claim was for services as nurse in a pest-house, at four dollars a day. The supervisors allowed two dollars, and claimed that some of the patients were able to pay for their own necessities, and that the charge was exorbitant. In disposing of the case, Justice Campbell used this language.

“Relator, Elliott, was employed to act as a nurse there, and it in no way concerned him what was the pecuniary standing of its inmates. The board of health have the power and responsibility of providing such a house and nurses to attend it. It was held in Rae v. Mayor, etc., of Flint, 51 Mich. 526, that the public is primarily responsible for such expenditures, and that it would be contrary to public policy to endanger the public health by making it impracticable to employ help who would be sure of their pay. The exigency of a pestilence will not wait for the convenience of parties, and measures must be prompt and effectual. The board of health must have power to make necessary contracts, and this involves all their terms. This was decided in the early case of People, ex rel. Bristow, v. Supervisors of Macomb Co., 3 Mich, 475. There was nothing in Elliott’s claim which was open to inquiry before the supervisors, and they should have allowed it as presented. There is no possible issue left open. * * * It is very much to be regretted that respondents have been so ill advised as to attempt to avoid the payment of these claims. The statutes designed to protect the community from infection are of the utmost importance, and persons cannot be compelled to risk their lives to take charge of patients, unless they choose to do so. Suitable and competent persons cannot be procured without fair remuneration. It would be dangerous in the extreme if such matters could be left open to the caprice of any public body, after the immediate danger is ended, where notions of thrift may interfere with those of humanity The law has not left these matters open to any such risk, and it is the duty of courts to see that it is not disregarded. ”

In this case the record shows that the emergency was very great. The relator testified that in rendering the service he relied upon the promise made to him by the board of health that he should be paid what his services were reasonably worth, and would not have rendered the service if he had supposed he must look to the patients for his pay. His case comes directly within the reasoning employed in Elliott v. Supervisors of Kalkaska Co., supra. If, in emergencies of this kind, it is understood that the agreements made by the boards of health cannot be enforced, the statutes designed to protect the community in these times, requiring prompt action of the board of health, will be rendered nugatory.

The writ will issue as prayed.

The other Justices concurred.


author: Mooke, J.

text:
    WEIDMAN v. SYMES.
    1. Promissory Notes — Evidence.
    In an action on a note, defendant was permitted to cross-examine plaintiff as to his knowledge of a co-maker’s insolvency, and the conveyance of some of his property to plaintiff. There was no pretense that the property was conveyed for the purpose of paying the note. Held, prejudicial error.
    2. Same — Comparison of Handwriting.
    In an action on a note, defendant claimed that the instrument had been altered, without his consent, by filling in a space which he had left blank. Held, that it was error to permit him to put in evidence other notes written by him, for the purpose of having the jury compare the handwriting.
    Error to Shiawassee; Smith, J.
    Submitted April 6, 1898.
    Decided April 19, 1898.

      Assumpsit by William Weidman against George B. Symes upon a promissory note. From a judgment for defendant, plaintiff brings error.
    Reversed.

      Selden S Miner, for appellant.

      Watson & Chapman, for appellee.
   Mooke, J.

Plaintiff sued defendant upon a promissory note, given in 1890, signed by John McBride and the defendant. Defendant, by way of defense, claimed that he signed the note as an accommodation maker, and had been released because plaintiff had, several times after the note became due, extended the time of payment without the consent of defendant. It was also claimed that after Mr. Symes signed the note it had been changed by writing in the words “ten (10) per cent.,” without the knowledge or consent of the defendant. On the trial the plaintiff testified that he obtained the note from Mr. Me-Bride, and that since it was delivered to him it had not been changed or altered. Mr. McBride testified that he saw Mr Symes sign the note, and that there was no change made in the note up to the time when he delivered it to plaintiff. The defendant gave testimony tending to show there had been a change made in the note by writing in the words “ten (10) per cent.” This was a 'disputed fact, and it was an important fact. The circuit judge charged the jury, among other things:

“It is undisputed in this case, and claimed by the defendant in the case, and the evidence tends to show, that when the note went from his hands there was no rate of interest provided for in the note, but that the blank space in the note, where the figures ‘ 10 ’ and the words cten per cent.’ were written, was blank at the time. That is the claim of the defendant, and there is no dispute about it.”

This was error. The question was one for the jury, and not for the court. Perrott v. Shearer, 17 Mich. 48; Blackwood v. Brown, 32 Mich. 104; Conely v. McDonald, 40 Mich. 150; Hart Manfg. Co. v. Mann’s Boudoir Car Co., 65 Mich. 564; Davis v. Gerber, 69 Mich. 246; People v. Gastro, 75 Mich. 127; Wessels v. Beeman, 87 Mich. 481; Prentis v. Bates, 93 Mich. 234 (17 L. R. A. 494).

On the cross-examination of the plaintiff, counsel for defendant was allowed to examine him in detail about what he knew about McBride becoming insolvent long after the note was given, and about McBride having made a conveyance of some of his property to the plaintiff. There was no pretense that the property conveyed was for the purpose of paying this note, or applying upon its payment. The purpose of the testimony was to prejudice the jury against the plaintiff, and it doubtless had that effect, and should not have been allowed.

The defendant was allowed to introduce in evidence a number of notes written by him subsequent to the time when the note in controversy was written, for the purpose of being submitted to the jury, for them to compare with tibe handwriting in the note. This was error. Vinton v. Peck, 14 Mich. 387; First Nat. Bank of Houghton v. Robert, 41 Mich. 709.

Counsel for defendant, in his argument to the jury, made use of language in relation to the business of the plaintiff that was unwarranted.

Other errors were committed in the trial, but as they are not discussed in appellant’s brief, and are not likely to occur on a new trial, further reference will not be made to them.

Judgment is reversed, and new trial ordered.

The other Justices concurred.


text:
    HUELLMANTEL v. VINTON.
    1. Chattel Mortgages — After-acquired Property —Sales by Mortgagor.
    A mortgage of a stock of goods is not void as against the creditors of the mortgagor because it covers after-acquired goods, and permits the mortgagor to sell in the usual course of trade, and apply the proceeds to his own use. Reaffirming Louden v. Vinton, 108 Mich. 313.
    3. Same — Trover by Second Mortgagee — Limit of Recovery.
    The holder of a second mortgage upon chattels may maintain trover against one who has wrongfully converted them, without paying or tendering the-amount of a judgment theretofore recovered against the defendant for the conversion of the interest of the prior mortgagee, and may recover in the action such portion of the value of the property converted, up to the amount of his claim, as remains after satisfying the former judgment.
    Error to Grand. Traverse; Corbett, J.
    Submitted April 6,. 1898.
    Decided April 19, 1898.

      Trover by Julius Huellmantel against Medad Yinton. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Dodge & Covell, for appellant.

      W. H. Foster, for appellee.
   Hooker, J.

This cause is before us a second time, our disposal of the same on the first hearing being reported in 112 Mich. 47, where the principal facts are stated. Upon a second trial the plaintiff recovered a judgment for $305.35, and the defendant has appealed.

The first question presented grows out of the claim of counsel that the plaintiff’s mortgage was a “legal fraud.” It is admitted that this question was passed upon in the case of Louden v. Vinton, 108 Mich. 313, which was a similar action to this, growing out of the same transaction, brought by an earlier mortgagee Being satisfied with the ruling in that Case, we think it unnecessary to discuss the question here.

Several assignments of error are discussed in the briefs. One Foster, a witness for the plaintiff, was cross-examined in relation to his motive in taking a third mortgage upon the property, exception being taken to redirect examination permitted upon the same subject. We find no error in this.

We think it unnecessary to discuss the question raised in relation to the admission of the appraisal, or the denial of the motion to strike out the testimony, or the charge of the court in relation thereto.

The court instructed the jury that:

“Now, gentlemen of the jury, the first thing for you to consider, and for the court to consider now, is the value of this stock of hardware in question. Mrs. Louden having had a first mortgage on this stock of goods, and having obtained a judgment against the sheriff, and that judgment having been paid, if the stock of goods did not exceed'in value the amount of her judgment, then there is nothing left here for Mr. Huellmantel, the plaintiff, on his mortgage, and your verdict should be for the defendant. Now, gentlemen, if this stock of goods did not exceed. the amount of the Louden judgment, which Buhl’ Sons & Co. paid, $3,184.65, there is nothing further for you to consider, and your verdict should be for the defendant of no cause of action.”

This was proper instruction, unless, as counsel contend, the judgment in favor of Clara Louden was a complete answer to the plaintiff’s claim, inasmuch as he had not paid such judgment nor tendered payment. There were three successive mortgages upon this property. The owner of the first, Mrs. Louden, recovered from the defendant, who converted the entire property, the amount of her lien. If that did not equal the value of the property,; — and the jury evidently found that it did not, — the second mortgagee might recover a portion or the whole of the unappropriated value upon his claim. All of the' property came to the possession of the defendant, who sold it, and appropriated the proceeds. Each person having an interest in the property wrongfully converted had a right of action for the conversion, which was separate and distinct from the rights of others, except as the right of the second was dependent,upon the sufficiency of the property to pay the claim of the prior mortgagee and leave a surplus.

The question in relation to the village lot deeded to the plaintiff was decided on the former hearing. There was testimony justifying the court in his submission of that matter to the jury.

The judgment is affirmed.

The other Justices concurred.


author: Long, J.

text:
    PHELPS v. ABBOTT.

    Actions — Open Account — Separate Suits — Costs.
    Separate suits may be brought by a creditor upon the claims embraced in an open account, subject, under 2 How. Stat. § 6876, to the penalty of loss of costs in subsequent suits where the whole of the claim upon such an account is not included in one action.
    Error to Washtenaw; Kinne, J.
    Submitted April 6, 1898.
    Decided April 19, 1898.

      Assumpsit by Caliphurnia B. Phelps and others against Charles S. Abbott for goods sold and delivered. Erom a judgment for plaintiffs on verdict directed by the court, defendant brings error.
    Affirmed.

      Lehman Bros., for appellant.

      Bowen, Douglas & Whiting, for appellees.

       Rehearing denied June 28, 1898.

   Long, J.

Plaintiffs had an account for goods, wares, and merchandise against defendant, which had been running for several months, amounting to $489.88. On January 9, 1896, plaintiffs caused two summonses to issue against defendant. To each summons was attached a verified statement of a portion of the account. On the adjourned day of the first case, February 5th, they took judgment for $228.30 damages and $7.80 costs of suit. This included the general account from January 1, 1894, to and including the month of December, 1894. On February 6th the second trial came on. There had been served with this summons a verified statement of the account from January 11, 1895, to and including December, 1895. The defendant appeared in this cause, and pleaded the former suit and judgment in bar, under a claim that the second suit was for a part of the same general account for which judgment was rendered February 5, 1896, and that the cause of action, if any, accrued before the bringing of the first suit wherein judgment was rendered. Judgment was rendered by the justice in this second suit for $261.58 damages and $7.85 costs. The cause was appealed to the circuit court, where the judgment was affirmed. Defendant brings error.

The defendant requested the court to charge, substantially, that plaintiffs could not recover, which request was refused. It is the claim of the defendant that a debt due upon a continuous account of book entries, made in the ordinary course of dealing, is entire, and cannot be split up into separate and distinct demands, so as to form the basis of several suits ;■ that an open account containing many items, all of which are due, constitutes but fine claim, and one right of action. It appeared in the case that the plaintiffs, before these suits were brought, had brought suit upon the whole claim in Detroit, but that it had never been put in judgment, and that such suit was discontinued before the present suits were brought. The defendant contends that the whole account was there treated as one cause of action, and that, therefore, it cannot be split up, and that the first suit before the justice is a bar to the present suit.

We think that none of these contentions can be sustained, and that the court below very properly directed verdict in favor of plaintiffs. There was no question but that defendant was indebted to the plaintiffs for the amount covered by the two suits. The question here raised was passed upon in Stickel v. Steel, 41 Mich. 350, adversely to the claim now made by the defendant. It is true that in that case the bills of goods, which were bought on the same day, were bought on different terms of payment, but the account for each bill became due before the suit was brought on the first bill. It was said:

“ The two bills might have been embraced in one action, but, as the aggregate amount exceeded the jurisdiction of a justice of the peace, we probably have in this fact an explanation of the two suits. We think the plaintiffs had a legal right to bring the two suits. The justice refused to give costs in the second suit, and the course taken has been favorable to the debtor, instead of being oppressive. He has been sued in an inexpensive court.”

This doctrine was reaffirmed in Reid, Murdoch & Co. v. Ferris, 112 Mich. 693. The penalty fixed by the statute for not including the whole claim on open account in one suit is loss of costs in the second suit. 2 How. Stat. § 6876.

The judgment must be affirmed.

The other Justices concurred.


author: Grant, C, J.

text:
    CONLIN v. LAMONT IRON CO.
    Labor Liens — Judgment—Surplusage.
    A judgment giving a lien on real as well as on personal property in an action for work and labor, in which, the summons and declaration claimed a lien on the personal property only, under 1 How. Stat. § 4063, will be treated as surplusage, so far as the lien on the real property is concerned, and the validity of the judgment as to the lien on the personal property will not be affected thereby.
    Error to Iron; Stone, J.
    Submitted April 6, 1898.
    Decided April 19, 1898.

      Assumpsit by Thomas Conlin against the Lamont Iron Company for work and labor. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Sherman T. Handy, for appellant.

      M. H. Moriarty (R. C. Flannigan, of counsel), for appellee.
   Grant, C, J.

Plaintiff recovered a judgment in a suit at law against the defendant for $429 for work and labor. In both the summons and declaration he claimed a lien on the personal property of defendant under 1 Plow. Stat. § 4063. In entering the judgment plaintiff was given a lien on the real as well as the personal property. Defendant seeks to reverse this judgment because it declares a lien on the real estate. Its counsel insists that such lien can only be enforced by a bill or petition in chancery under 2 How. Stat. § 8382. If this were so, the mere taking of a judgment would not be a proceeding to enforce the lien. When he attempts to enforce his lien by proceedings at law, it will be in time for defendant to raise the question. If there is no way to enforce the lien by proceedings at law, the recital is harmless.

But this case may be disposed of by holding that this recital in the judgment is surplusage. Obviously it does not affect the validity of the judgment or the lien upon the personal property. No such lien is claimed in the declaration or summons, and no such issue was presented by the pleadings. It does not appear that this matter was called to the attention of the trial court. It is an error which the court would undoubtedly have corrected on motion. Counsel for plaintiff assert in their brief that they offered to consent to an amendment striking out this recital. If this was so, defendant should have complied with the offer.

Judgment affirmed.

The other Justices concurred.