author: Montgomery, J.

text:
    STEGER v. IMMEN.
    Negligence — Contributory Negligence — Unguarded Openings.
    Want of care which bars plaintiff’s recovery is shown by averments of a declaration that, during a visit to defendant’s, building, plaintiff borrowed a key of the tenant, and, finding an unlocked door in a relatively similar situation to that of a. water-closet on the floor below, without any investigation, entered and fell down an open shaft.
    Error to the,superior court of Grand Rapids; Stuart, J.
    Submitted June 10, 1909.
    (Docket No. 61.)
    Decided July 6, 1909.

      Case by Otto F. Steger against Loraine Immen, special administratrix of the estate of Frederick Immen, deceased, for personal injuries. A judgment sustaining a demurrer to the declaration is reviewed by plaintiff on writ of error.
    Affirmed.

      Dunham & Dunham, for appellant.

      Carroll & Nichols, for appellee.
   Montgomery, J.

This action was brought against Frederick Immen in his lifetime, and has been revived in the name of the special administratrix. The case was disposed of on demurrer to the declaration. The demurrer, having been sustained, the plaintiff brought error. The action was to recover damages for a personal injury, alleged to have resulted from the defendant’s negligence.

In brief, the declaration avers that the defendant was owner of a building in the city of Grand Eapids known as “The Loraine.” It was a five-story tenement flat. From the upper story to the basement there was a shaft of about 2 feet by 2i feet in size, in which was a dumb waiter, used for the purpose of transporting ice and other products from the basement of the building to the several floors of the block. On the third floor of this building there was, immediately adjacent to the shaft, a water-closet, which, on previous visits to tlie building, the plaintiff had made use of by borrowing a key from the occupant. On the fourth floor there was no such water-closet. The plaintiff avers that, on the 23d of August, he was a .visitor at the rooms of one of the occupants of the block on the fourth floor, a tenant of the defendant, and that, having occasion to visit the water-closet, he borrowed the key to the closet, and without inquiry, so far as it appears, as to where the water-closet was located which this key was to fit, assumed that he would find one on the fourth floor, in the same relative position as that which he had used on the third floor. He went to the vicinity where such water-closet would be located according to his assumption, and, finding a door, which in fact is described as about 2 feet by 6 feet 6 inches, he attempted to open the same with the key, but, discovering that the same was unlocked, he opened the door, stepped through the doorway, and fell into this shaft to the basement and received injuries. The declaration avers that the hall on the fourth floor where this shaft was located was not properly lighted:

“ That it was dark; that he entered said short hall extending from the main hall on said fourth floor to the west side of said building, as he supposed that there was a water-closet in said hallway directly over the one on the third floor, and, coming to a door in the wall of said small hall, and nearly directly above the door in the water-closet in the hall below, undertook to insert the key so given him by said tenant into the lock of said door, believing it to be the door of a water-closet, and found said door unlocked and open, and in no manner fastened, and plaintiff took hold of the knob of said door, and pulled it open so he could step in, plaintiff believing that he was at the door of a water-closet, but instead thereof stepped into said open well or shaft, known and used as a dumb waiter, and in so doing fell down said fourth floor to the basement of said building, a distance of about 50 feet.”

The declaration further avers that the plaintiff was in the building at the invitation of one of the tenants, who was occupying room C on said fourth floor.

The two questions which are presented are: First, whether the defendant owed the plaintiff any duty in the premises, or whether he is to be treated as a mere licensee; and, second, whether the declaration shows that the plaintiff was himself wanting in due care. We think the case should be controlled by a determination of the latter question. Assuming, for the purposes of this case, without deciding, that the plaintiff was, under these circumstances, entitled to the rights of one invited upon the premises, we are agreed in the opinion that he was himself guilty of such want of care, under the circumstances shown in this declaration, as to preclude recovery. He had no knowledge that there was in fact any water-closet on the fourth floor, and indeed such was not the fact. We find a case, then, where he assumed that to exist which did not exist, and groped his way in the dark, found a closet door, which he opened without taking the trouble of striking a match or making any investigation, and stepped into darkness, which resulted in his injury.

The case of Gaffney v. Brown, 150 Mass. 479 (23 N. E. 233), cited in defendant’s brief, is very much in point, In that case a plaintiff, who had entered the dining room of defendant by the usual door, to which she was accustomed, who had dined at a table farther in the rear of the apartment in which she took her meals, opened a door in the side of the apartment for the purpose of retiring therefrom. This door was not in any way indicated as a mode of egress; and, without observing whither she was going, or paying any heed to her steps, she walked directly over the threshold, and was thus precipitated down a flight of stairs leading to the cellar, to which the doorway directly led. The court say:

“ While there was no sign indicating that this door was not to be used, and that no person was to enter or depart thereby, the plaintiff must have been aware that such an apartment would probably have doors leading to closets, to upper or other apartments, or even the cellar. She had been in the apartment before, and knew the usual egress therefrom. If she thought it possible that the door which she opened might lead to the hall or entry, and be intended as a mode of egress, it was certainly her duty to look where she was stepping before she advanced across the threshold. She had no right to act unreservedly, upon the belief that the door would necessarily be locked, unless intended for egress. According to common knowledge and experience, her conduct, in this respect, was careless.”

The case of Massey v. Seller, 45 Or. 267 (77 Pac. 397, 16 Am. Neg. Rep. 553), is still more strongly in point. In that case it appeared that the plaintiff, approaching the outer door of defendant’s premises, observing “this dark place,” as he termed it, and wanting to find a water-closet, walked into an elevator shaft, without knowledge of its existence. He testified:

“ It was a dark, desolate looking place. It was á dark corner, and I went back once before to just about such a place, and found a water-closet, * * * and I thought from the looks of it there might be a closet there. * * * I was not looking for a trapdoor to fall in, but I could see nothing.”

The court say:

“ If it was so dark in there that he could ‘see nothing,’ it was certainly an act of folly on his part to enter on a cruise of exploration and discovery without stopping to determine whether it was safe to proceed. To bolt headlong into a place little known, and where the senses cannot take note of it, is not the act of a prudent man, and there is no chance for any other inference or deduction concerning it. Reasonable minds could not come to any other conclusion touching it, so that there is nothing for the jury to determine, and the trial court very properly declared the result as a matter of law.”

The case was certainly as strong for the plaintiff as is the present. In the present case there was no knowledge on the part of the plaintiff that there was a water-closet in the vicinity of this shaft. In fact there was none. His exploration was based upon the assumption that, because such a closet was to be found on the floor below, he would be likely to find one in this place. Finding himself, therefore, in the vicinity of where the assumed water-closet was supposed to be located, he opensd this door in the dark, stepped into darkness, and received the injury. A clearer case of contributory negligence could not well be stated. See, also, Bedell v. Berkey, 76 Mich. 435 (43 N. W. 308, 15 Am. St. Rep. 370), and Hutchins v. Sleigh Co., 61 Mich. 252 (28 N. W. 85).

The correct conclusion was reached by the trial court, and the judgment is affirmed.

Q-rant, Ostrander, Hooker, and Moore, JJ., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    GOGEBIC LUMBER CO. v. MOORE.
    1. Taxation — Notices.
    A notice of State tax land purchases, in which the descriptions, ' amounts paid and years for which the taxes were levied appear in columns, is not objectionable in form, and the statement of the years’ taxes made opposite the descriptions must be taken to refer to all the descriptions.
    2. Same — Service oe Notices.
    The return of the sheriff showing service of the notices on proper parties, accompanied by registry receipts signed by the owners or their agents, is prima fade proof of service.
    3. Same.
    Proof of service of notice on one owner described as Michael Mullally of the city of Marquette, Marquette county, Michigan, is to be construed as giving the residence of the owner.
    4. Same.
    An abbreviation in the return of the sheriff showing service by mail at “Mil., Wis.” is sufficiently explained by a reference to the appended registry receipts to mean Milwaukee, Wisconsin.
    5. Same.
    A registered letter addressed to Harry P. Edwards, who was so named in a recorded conveyance, receipted for as H. P. Edwards by H. R. Edwards, is a sufficient service.
    6. Same.
    The erroneous statement in defendant’s answer that an additional party was one of the last recorded owners of title, although not served with notice, was not fatal, where the complainant’s proof showed a chain of title that excluded the party.
    Appeal from Gogebic; Cooper, J.
    Submitted June 10, 1909.
    (Docket No. 36.)
    Decided July 6, 1909.
    Bill by the Gogebic Lumber Company against George E. Moore and others to quiet title to land, and to redeem the same from sale for taxes. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Ball & Stone, for complainant.

      Charles M. Humphrey, for defendant Moore.
   Montgomery, J.

This is a bill filed to quiet title to the S. W. ^ of the N. E. £ of section 5, town 46 N., range 43 W., Gogebic county, and to redeem from certain taxes. The complainant claims to be the owner of the land by chain of title from the United States, and the defendant George E. Moore claims to be the owner by virtue of certain tax deeds upon a sale made by the auditor general for taxes of 1898, 1899, 1900, 1901, and 1902. The case turns upon the sufficiency of notice to redeem, given by the tax title purchaser to the original owners of record, and the sufficiency of notice resolves itself into two questions : First, as to the sufficiency in form; and, second, as to the proper service. Notice was served upon a number of parties, and is apparently conceded to be sufficient in form, provided that the description of the land and the designation of the years for which the taxes were spread are sufficiently given.

In one instance the form of the notice as regards the statement of the years for which the taxes were spread is as follows:

And in another instance the description was as follows:

It is claimed that these notices do not indicate that the statement in the last clause applies to the description of land given, and particularly that it applies to one rather than the other. We think this is altogether too technical a construction to place upon the notice. The numerals referring to the year refer to the heading under which they appear, and, thus construed, apply to all that appears in the preceding columns, and must mean that, as to each of the descriptions mentioned in the preceding columns, the amount paid was paid for the taxes named in the years enumerated in the last column.

As to service, the evidence of this was afforded by the return of the sheriff, accompanied by receipts of registered letters filed with the register of the court. The contention is made that, under the rule laid down in Winters v. Cook, 140 Mich. 483 (103 N. W. 869), and in Williams v. Olson, 141 Mich. 580 (104 N. W. 1101), the return of the sheriff is not to be treated as evidence of the fact of service. This is a misconstruction of what is decided in these cases. In Winters v. Cook the question was whether the return of the sheriff could be attacked collaterally by evidence showing that the purchaser of the tax title interest had not acted in good faith in securing a substituted service in a locality other than that of the residence of the party. The question involved in Williams v. Olson was not dissimilar. It is true it was there said that, upon the application for a writ of assistance, the fact of proper service is, notwithstanding the return, matter to be proven; the actual filing of the return, fixing the date from the period of limitation, must be reckoned. It was not intended by this language to hold that the purchaser might not comply with this requirement by showing the return of the service which the statute provides. The statute is distinct in its requirements that there shall be a service made in a certain form, and by an officer of the court. It would be anomalous to hold that the return of such service is not evidence of the fad of service, whatever may be said of its force as evidence of the fact of residence. Unquestionably it may be shown, to defeat the force of the return of the sheriff, that service was not made in a manner which the facts justified, and in a proper case the return itself might be attacked as to its truthfulness. But we hold that it is prima facie evidence of the fact of service. Service was made upon one Michael Mullally, and the return of service made by the sheriff states that on the 31st of August, 1903, he served notice on Michael Mullally of the city of Marquette, Marquette county, Mich., by personally delivering such notice to him as aforesaid. The query is propounded in the brief of complainant’s counsel as to whether this may be taken as a statement that Michael Mullally resides in the county of Marquette. It seems to us that no other inference could be drawn from the language. But further than this, in the plaintiff’s chain of title introduced by himself, Michael Mullally is described as being of the city of Marquette and the county of Marquette, so that there can be no doubt of that being in fact his residence.

A good deal of criticism is made of the service made on the Cazenovia Land Company. The evidence shows that the Cazenovia Land Company was a company doing business in Milwaukee, Wis. This was described in deeds introduced by complainant itself. The return of the sheriff is that he served the notice on “ Louis Ellis, secretary of the Cazenovia Land Company,” by depositing in the post office at the city of Bessemer, for transmission through the United States mail, one registered letter, containing a true copy of said notice, addressed to

“ ‘Louis Ellis, Secretary of the Cazenovia Land Company, Mil., Wis.,’ a receipt for which said registered letter, signed by the said above-named person as secretary, is hereto annexed, and forms a part of this return.”

There is appended to this a receipt of the postmaster at Bessemer for the letter addressed to “ Louis Ellis, Secty., Milwaukee, Wis.,” and there is a receipt for the letter, described as a letter of the same number, “ No. 262, from Bessemer, Mich., addressed to Louis Ellis, Sec. Cazenovia Land Co.,” and receipted for by “ Louis Allis, Secty.,” A. H. Green, addressee’s agent. It is admitted that Louis Allis is the secretary of the Cazenovia Land Company. The technical point is made that the return does not show that this letter was addressed to Milwaukee, Wis., but to Mil., Wis. The return, however, refers to the receipts appended, and, read in connection with them, leaves no doubt that “ Mil.,” as used, is an abbreviation of Milwaukee, Wis., and it cannot be assumed, either, that the letter was received by anyone other than the party to whom it was addressed. It appeared upon the receipt itself that, when delivery is made to the agent of the addressee, both addressee’s name and the agent’s must appear, and that a registered article must not be delivered to anyone but the addressee, except upon the addressee’s written order, so that, according to the rules of the post-office department, as indicated by the memorandum upon this receipt, this letter must have reached its destination, and have found its way into the hands of Louis Allis, secretary of the Cazenovia Land Company.

Another letter was addressed to Harry P. Edwards, of Cleveland, Ohio. The record in the office of the register of deeds showed some conveyance to Harry P. Edwards, so that the letter was properly addressed to Harry P. Edwards. The registry receipt acknowledges receipt of the registered letter “No. 263, P. O. Bessemer,” addressed to Harry P. Edwards. This receipt is signed H. P. Edwards, per H. R. Edwards. It is said that there is no evidence as to the handwriting of Harry R. Edwards, nor is there any evidence that H. R. Edwards, who purports to sign the receipt, is Harry R. Edwards or Harry P. Edwards. This is again very technical. For if we turn to the case made by the complainant, we find that the complainant saw fit to introduce the record of an affidavit made by Harry R. Edwards of Cleveland, Ohio, dated November 29, 1905, setting forth that Harry R. Edwards is the same person to whom the land was conveyed by Thomas Dyer as Harry P. Edwards. It would seem, therefore, that the defendant, having addressed the letter to the proper party, namely, the one whose name appeared of record as the owner, succeeded in getting it into the hands of the proper party, namely, the one whose real name was misnamed of record. There is no ground for complaint.

The point is made that the answer set forth that one of the last recorded owners of the title at the time of service was Mary L. Dodds. It is stated in the brief of defendant’s counsel that this was a mistake, but what is more, complainant’s case shows a complete chain of title, which excludes Mary L. Dodds from any ownership or interest in the property.

All parties, therefore, appear to have been properly served, and the circuit judge was correct in holding that the complainant’s title is cut off.

The decree is affirmed.

Grant, Ostrander, Hooker, and Moore, JJ., concurred.


text:
    BOARD OF SUPERVISORS OF GRATIOT COUNTY v. MUNSON.
    1. Mandamus — Parties—Municipal Corporations.
    If proceedings by mandamus to compel the county treasurer to comply with Act No. 461, Local Acts 1907, by depositing county funds in the depository designated by the board of supervisors, are brought in the name of the board of supervisors instead of the county, an amendment would be proper to correct the error, which would not therefore require the vacation of the order issuing the writ on certiorari.
    2. Constitutional Law — Public Officers — Public Funds.
    A local act requiring the county treasurer of Gratiot county to deposit funds of the county in a depository designated by the board of supervisors, and to account for the interest thereon, does not impair the obligation of contract by affecting any vested right of the treasurer.
    3. Same — Regulation.
    That the office of county treasurer is a constitutional office does not deprive the legislature of power to regulate the deposit of public funds in his hands.
    4. Same — Construction of Statutes.
    A section of the local act which provides that the treasurer and all other officers of the county shall deposit county funds in their hands with the designated depository is to be construed within the title of the act so as to refer to deputies of the treasurer and persons appointed to discharge his duties, and so as to refer to all county officers, repealing other statutes by implication.
    5. National Banks — Bonds.
    A bond given by a national bank to secure deposits made with it by a county is not ultra vires under the provisions of 13 U. S. Stat. at Large 110 (5 Fed. Stat. Ann. 141), since no liability in excess of the actual deposit is created.
    6. Corporations — Bonds—Execution.
    No ground for complaint is given the treasurer if the bond is not authorized by the corporation, where it is signed by the proper officers, and the sureties are bound to a distinct, independent liability.
    Certiorari to Gratiot; Gage (William G.), J., presiding.

      Submitted May 25, 1909.
    (Calendar No. 23,350.)
    Decided July 6, 1909.
    Mandamus by the board of supervisors of Gratiot county to compel Harvey R. Munson, county treasurer, to deposit county funds in a designated depository. An order granting the writ is reviewed by respondent on writ of certiorari.
    Affirmed.

      John M. JEJverden, Prosecuting Attorney, and William A. Bahlke, for relator.

      Lyon & Moinet (M. M. Salter, of counsel), for respondent.
   Montgomery, J.

This is certiorari to review a mandamus proceeding instituted by the relator in the circuit court. Mandamus was asked to compel the respondent, who was county treasurer, to deposit the public moneys belonging to the county in the depository designated by the board of supervisors under the provisions of Act No. 461, Local Acts 1907. The circuit judge granted the writ as prayed. The respondent contended in that court and in this, first, that the proceedings were not properly launched and should have been in the name of the county rather than in the name of the board of supervisors, and on, the merits of the case contended that the act in question was unconstitutional for various reasons. The objection that the suit should be brought in the name of the county is purely technical, as the title is very clearly subject to amendment. See Johr v. Board of Sup’rs of St. Clair Co., 38 Mich. 532. And we should not use the writ of certiorari to vacate an order which might be corrected by amendment. The most that we should feel called upon to do in any event would be to remand the record for correction. We therefore proceed to consider the merits of the case.

Act No. 461, above referred to, is an act entitled:

“An act authorizing and requiring the board of supervisors of Gratiot county to designate a local bank or banks as the depository or depositories of Gratiot county moneys, and prescribing the duties of certain officers relative thereto.”

The act provides for receiving bids for the deposits from the banks in the county, for the awarding of the contract to the most favorable bidder, and for the giving of security by such banks, and provides that all interest moneys earned shall be credited to the contingent fund of the county, and contains a further provision that—

“ It is hereby made the duty of the county treasurer of said county, and all other officers of said county having said funds or any part thereof in their possession or under their control, to deposit the same in the depositories so designated by the board of supervisors.”

Various reasons are assigned why this act is unconstitutional : First, it is alleged that it impairs the obligation of contract, and an elaborate discussion is had to maintain this proposition. So far as the act affects the respondent, it may be said that it was in force before he took office. No existing or vested right in the respondent therefore could be said to have accrued which was impaired by this act.

It is also contended that the office of county treasurer is a constitutional office, and we infer from the argument that it is the understanding of counsel that the control of the public funds by the legislature is in some way restricted by this fact. It is urged that the county treasurer, who gives a bond required by law, is an insurer of the money deposited in his hands, and that, therefore, control of the same cannot be taken from him and placed in another depository. The case of Perley v. County of Muskegon, 32 Mich. 132 (20 Am. Rep. 637), is relied upon to sustain this view. But under section 1197 et seq., 1 Comp. Laws, comprising an act entitled, “An act to provide for the safekeeping of public moneys,” the segregation of such public funds is provided for, and it is clearly within the power of the legislature to insure the safety of such funds. See, upon this subject, Board of Sup’rs of Kent Co. v. Verkerke, 128 Mich. 202 (87 N. W. 217, 92 Am. St. Rep. 450), in which these sections are construed, and in which case it was held that the interest on moneys deposited in a designated depository belong to the county, and not to the treasurer.

It is also contended that the act is broader than its title, and this contention is based upon the provisions of section 5, which make it the duty of the county treasurer of said county,

“And all other officers of said county having said funds or any part thereof in their possession or under their control, to deposit the same in the depositories so designated by the board of supervisors.”

This act is to be construed in connection with other provisions of the statute. Repeals by implication are not favored. The treasurer, except in certain cases, is made the custodian of public funds of the county, and the duty is imposed upon those into whose hands funds come to turn them over to the treasurer. We do not think the purpose of the legislature as manifested by this provision was to amend or repeal these other provisions. As pointed out by the learned circuit judge, “all other officers of said county ” may be held to have included deputies of the treasurer and persons “appointed under 1 Comp. Laws, § 2537, to perform the duties of the treasurer, but who are not designated as treasurer.” This construction does no violence to the other provisions of the statute, and gives effect to the provisions quoted.

It is next contended that the contract and bond of the Ithaca National Bank, the designated custodian, is ultra vires under the national bank act (13 U. S. Stat. at Large, 110 [5 Fed. Stat. Ann. p. 141]), which reads:

“No association shall at any time be indebted, or in any way liable, to an amount exceeding the amount of its capital stock at such time actually paid in and remaining undiminished by losses or otherwise, except on account of demands of the nature following: First. Notes of circulation. Second. Moneys deposited with or collected by the association. Third. Bills of exchange or drafts drawn against money actually on deposit to the order of the association, or due thereto. Fourth. Liabilities to the stockholders of the association for dividends and reserved profits.”

The second exception above quoted would seem to be sufficiently broad to cover a bond given to secure deposits. The liability of the bank is not increased by the fact that it enters into a written agreement to pay money deposited. It has not undertaken in excess of the amount of its capital stock except in this form. It is urged that the record fails to show the authority of the president and cashier to sign the bond given by the Ithaca National Bank. This objection is purely technical. The bond given contained the provision that—

“ The liability of the sureties on this bond shall be independent of the liability of the principal thereon in accordance with the terms and provisions of said contract and the rules and regulations under which the same is prepared and adopted.”

It is unnecessary to determine whether the authority of the president and cashier to execute this bond is implied from the bid which it made to the county and the receipt of deposits. The county has the full security, not only of the principal, but of the sureties for the deposit. The defendant is not in a position to complain of any technical irregularity, if any.

The order of the circuit court will be affirmed.

Ostrander, Hooker, Moore, and McAlvay, JJ., concurred.


author: Brooke, J. Grant, J.

text:
    WILSON v. CLEVELAND.
    1. Mandamus — Public Officers — Municipal Corporations.
    Mandamus will not lie in favor of the mayor of a village to compel the members of the common council to attend meetings and transact necessary public business.
    2. Same.
    Mandamus is only granted to compel the performance of public duties by public officers, where a specific right is involved, not possessed by oitizens generally.
    3. Same.
    A mayor of a village has no specific right involved because, as chief executive, he may be required to preside and cast the deciding vote in cases of equal division, or to give the council information.
    Certiorari to Kalamazoo; Knappen, J.
    Submitted June 15, 1909.
    (Calendar No. 23,454.)
    Decided July 6, 1909.
    Mandamus by John "W. Wilson, president of the village of Climax, to compel George Cleveland and others, members of said village council, to perform their official duties. An order granting the writ is reviewed by respondents on writ of certiorari.
    Reversed, and proceedings dismissed.

      Osborn & Mills, for relator.

      Harry O. Howard, for respondents.
   Brooke, J.

John W. Wilson, president of the village of Climax, began, these mandamus proceedings against the three respondents, who were three trustees of said village, and members of the village council, duly elected in March, 1909, and qualified as such, charging that these trustees have persistently and purposely absented themselves from regular and other meetings of said council, although duly notified of such meetings, and have not attended any meetings of the council since their election; that respondent Hoyer has filed his resignation, upon which no action has been or could be taken because of the impossibility of holding a meeting; that the whole number of trustees is six and by the refusal and neglect of respondents to attend meetings of the council it is impossible to transact business for want of a quorum; that urgent public business requires action by said council, and that municipal affairs are at a standstill; that the bond of persons desiring to sell intoxicating liquors, a druggist’s bond, and also the bonds of the village clerk and treasurer, have been presented for approval; that action by the council relative to levying the taxes assessed for the current year must be taken; that bills and accounts must be audited and allowed. Petitioner alleges:

“ That he is a taxpayer of said village, and makes this petition a3 such, and as president of said village, on his own part and behalf, and on the part and behalf of the village of Climax as its president.”

He asked for a peremptory mandamus against respondents requiring them to attend the next regular meeting of the council of said village to be held on a date and hour named, “to perform the said several duties and the duties devolving upon them as trustees of said village.” An order to show cause was issued, and, after a hearing before said court, a writ of mandamus was granted.

It has become the settled policy of this court to deny the writ of mandamus to compel the performance of public duties by public officers, except where a specific right, is involved not possessed by citizens generally. People v. Whipple, 41 Mich. 548 (49 N. W. 922); People v. Ihnken, 129 Mich. 466 (89 N. W. 72).

It is contended by relator that the case at bar is distinguishable from the cases cited. If this is so, it must be because the petitioner has made it appear that he has a specific right involved, as distinguished from the right of citizens generally. This must be on account of his official position, for as an ordinary citizen he makes no showing of any specific right. It is urged that, under the statute, he is chief executive officer of the village, required to preside at council meetings, and be deemed a member, but shall have no right to vote upon any question except in case of a tie; that it is his duty to give the council information as to the affairs of the village and make recommendations, to exercise supervision over the affairs of the village and over public property, and see that the laws relating to the village and the ordinances and regulations of the council are enforced. He is not by this statute vested with any specific right, distinguishable from the rights of citizens generally, which will bring him within the decisions of this court and entitle him to relief by mandamus in this case.

A general violation of a public duty is charged against respondents, and this case is not distinguishable from the cases above cited. The statute referred to provides that the council may provide by ordinance for compelling the attendance of its members at its meetings. No action has ever been taken under this provision. It is evident that these respondents have combined to prevent a quorum of the council from meeting. We do not find in this record any justification for such conduct; but, as was said in the Whipple Case:

Courts are not created to conduct municipal affairs. * * * The remedy, if there is one, is not judicial.”

The judgment of the circuit court is reversed. The order granting a writ of mandamus is vacated and set aside, and the mandamus proceedings dismissed.

Blair, 0. J., and Montgomery and Mo Alva y, JJ., concurred with Brooke, J.

Grant, J.

I concur in the result reached by my Brother Brooke in this case, for the sole reason that the power to control and compel the attendance of members of deliberative and legislative bodies and their officers is lodged in those bodies and not in the courts. In the present case it appears that this power is by the municipal charter lodged in the common council. This is not a case of an officer, municipal or other, upon whom is expressly imposed the duty to enforce legislative enactments. There may be many cases where a minority of a legislative body may feel justified in preventing a quorum by their absence, and thus prevent the accomplishment of enactments or the adoption of policies which they deem unwise. Where such bodies, the creatures of the legislature, are not expressly endowed with the power to compel the attendance of their members, the power is nonexistent and courts cannot supply it. Such I understand to be the basis of the cases of People v. Whipple, 41 Mich. 548 (49 N. W. 922), and People v. Ihnken, 129 Mich. 466 (89 N. W. 72). To supply this power by court decisions would be an act of judicial legislation.


author: Brooke, J.

text:
      In re THORINGTON’S ESTATE. APPEAL OF STARKWEATHER.
    Appeal and Error — Dismissal—Want op Prosecution.
    On a motion to dismiss a writ of error, where no bill of exceptions had been settled and no extension of time had been obtained for a return to the writ of error, although the return day of the writ had expired, it appearing that the appellant desired to have the cause remanded for further proceedings before prosecuting his appeal, the court entered an order dismissing the writ, holding that want of diligence or of good faith was shown.

      Harry H. Lippincott, special administrator, presented for probate the last will and testament of Maria S. Thorington, deceased. The will was allowed in the probate court, and John L. Starkweather appealed to the circuit court. A judgment for proponent is reviewed by contestant on writ of error: On motion to dismiss.
    Submitted June 15, 1909.
    (Calendar No. 23,378.)
    Motion granted July 6, 1909.

      James G. Tucker, for the motion.

      John L. Starkweather, contra.

       Rehearing denied November 5, 1909.

   Brooke, J.

This is a motion to dismiss a writ of error issued out of this court in the above-entitled cause on April 16, 1909, for want of prosecution. Attached to the motion is a sworn copy of the journal entries in the circuit court for Macomb county, from which it appears that a verdict for the proponent of the will was entered on the 16th day of April, 1908. The time for moving for a new trial or settle a bill of exceptions according to said entries appears to have been extended to December 7, 1908. In the meantime a motion for a new trial had been made to the circuit judge, and upon October 26, 1908, said motion was denied. From the journal entries it is apparent that the trial lasted from April 1 to 16, 1908, inclusive. The affidavit of the stenographer is attached to the motion, and shows that up to the present time no full transcript of the testimony has been made. One was ordered by the contestant in the spring of 1908, but said order was later countermanded. Some excerpts thereof have been made, and have been sent to the court. The writ of error issued on April 16, 1909, was made returnable on May 25, 1909. No motion has been made on behalf of the contestant for an extension of time within which the writ of error might be returned, which might have been done under Supreme Court Rule 7. On the contrary, he has made a motion,

“To remand this cause to the circuit court, Macomb county, and for Judge Erskine to hear and determine the motion and petitions pending before the circuit court of said county at the end of the year, which by the practice is the time allowed for a motion for a new trial for settling a bill of exceptions (said Circuit Judge Erskine being in Europe at the end of the year).”

As before noticed, the circuit judge had already, on October 26, 1908, formally denied the contestant’s motion for a new trial, filing written reasons for said denial. So far as it is possible to understand the contestant’s position from the papers before us, it is apparent that he desires the case remanded to the circuit court for the purpose of obtaining the decision of the circuit judge upon his supplemental petitions for a rehearing of his motion for a new trial. Taking into account the circuit court journal entries which are before us, indicating the failure of contestant to have his time properly extended to settle bill of exceptions, his failure to order a copy of the testimony, and the further fact that up to the present time no proposed bill of exceptions has been settled or even served on the attorney for the estate, we are of opinion that it cannot be said that contestant is attempting to prosecute his appeal with diligence or in good faith.

The motion of contestant to remand will be denied, and the motion on the part of the estate for a dismissal of the writ of error is granted, with costs.

Blair, C. J., and Grant, Montgomery, and Ostrander, JJ., concurred.


text:
    DORFF v. ST. ADALBERT’S AID SOCIETY.
    Insurance — Disqualifications—Waiver.
    An association for the purpose of insuring against sickness, which accepts dues from a member known by its officers to belong to a society not approved by the Roman Catholic Church, cannot thereafter take advantage of a by-law forbidding membership in a society not so approved, to defeat a claim for benefits under a policy.
    Error to Kent; Perkins, J.
    Submitted June 16, 1909.
    (Docket No. 115.)
    Decided July 6, 1909.
    Assumpsit by Paul Dorff against the St. Adalbert’s Aid Society upon a benefit certificate. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      McKnight & McAllister, for appellant.

      Charles A. Watt, for appellee.
   Brooke, J.

The plaintiff in this case for many years prior to October, 1901, was a member of the Aid Society, which is a corporation organized under the laws of the State of Michigan, having a constitution and by-laws, collecting dues from its members, and in case of sickness of a member the by-laws provide for the payment of $3 a week for sick benefits. Under the terms of the by-laws no member of the St. Adalbert’s Aid Society can belong to any society that is not approved by the Roman Catholic Church. Section 12 of article XII of its constitution provides :

“That no member of the St. Adalbert’s Aid Society can be a member of any society that is not approved by the Roman Catholic Church.”

The plaintiff had been a member of the Polish American Alliance from the year 1896, and continued his membership in said society up to the time of bringing this suit. An effort seems to have been made by the defendant in this case to have all its members leave the Polish Alliance. Plaintiff, however, did not do so. His dues in defendant society were refused in February, 1901, upon the ground that he was a member of the other society; but at the end of six months he was notified of his reinstatement, and paid the dues for the back six months, and continued as a member in good standing, the defendant company accepting dues for the months of October and November of 1902. On May 25, 1902, the plaintiff became ill. Defendant’s sick committee was notified, and defendant was paid $6 for two weeks’benefit in June, when it refused to pay further upon the ground that the plaintiff was working. Defendant paid $12 for four weeks’ sick benefit in the month of September. There is no doubt that the plaintiff continued to be ill from September 1, 1902, up to the time of the commencement of suit, a period of 63 weeks.

The learned circuit judge, who tried the case without a jury, found, as a matter of law, that the defendant society had, by accepting dues from the plaintiff with full knowledge of his membership in the other society, waived the provision in the constitution and by-laws relative to membership, and that the plaintiff was entitled to recover the sum of $211.80, with costs. In this conclusion we think the circuit judge was correct. The record discloses the fact that the plaintiff had paid dues in the defendant society for 28 years, and since 1896, at any rate, had been a member of the Polish Alliance as well. It would be grossly inequitable to permit this defendant society to continue collecting dues from members known by it to be ineligible to membership under its constitution and by-laws, and, when such members by reason of illness had become entitled to the benefits provided by the organization, to allow it to shield itself behind the provision in the constitution in order to avoid its obligation.

The judgment is affirmed.

Blair, C. J., and Grant, Montgomery, and McAlvay, JJ., concurred.


text:
    BUCKEYE BREWING CO. v. EYMER.
    Evidence — Pleadings—Credibility oe Witnesses.
    Although the plea and notice of defendant was not offered and received in evidence, the date of a compromise as set forth therein was an admission not requiring proof, and might be commented on by counsel and considered by the jury in weighing the defendant’s testimony that the compromise took place at a later date.
    Error to Saginaw; Gage (William G.), J.
    Submitted June 16, 1909.
    (Docket No. 10.)
    Decided July 6, 1909.
    Assumpsit by the Buckeye Brewing Company against Andrew Eymer for goods sold and delivered. A judgment for plaintiff of $61.82 is reviewed by plaintiff on writ of error.
    Reversed.

      Miles J. Purcell and Henry E. Naegely, for appellant.
    Beach, G’Eeefe & Bockwith, for appellee.
   Brooke, J.

This action was brought to recover the sum of $8,502.63 for beer sold by the plaintiff to the defendant. Plaintiff is a brewing company in the city of Toledo, and the defendant has been a jobber of the plaintiff’s beer in the city of Saginaw for upwards of 25 years, during which period he has handled large quantities of plaintiff’s beer. The defendant, in making payments on his account to the plaintiff for the beer which it furnished, has, for a period of 20 years past, paid to a collector or agent of the plaintiff, who called on the defendant, for the purpose of making collections, at the city of Saginaw. At the times plaintiff’s collector called, and when payments were made by the defendant, the collector gave the defendant credit upon the bill which be presented, and the defendant signed his name to the statement. These statements were introduced by the plaintiff and covered a period from April 17, 1893, down to July 6, 1907. The statement under the last date is as follows:

Balance ... $3,127 44

210 barrels. . 1,470 00

$4,597 44

Covering ice....... $6 25

Leakage, 2-2, 2-4 .. 10 50

Donation, 3-2...... 10 50

Henning, 2 notes .. 272 00

Henning, 2 notes... 312 50

Cash______________ 350 00

Rebate, 207 barrels 414 00

Freight............ 1 20

Cash.............. 28 49 1,405 44

Balance...................................$3,192 00

The last car not included. A. Eymek.

The transactions between the parties between July 6, 1907, and October 36, 1907, were set forth in Exhibit B, and starting with the balance shown in Exhibit A, as above set forth, of $3,193, and debiting the account with the shipments and giving credit for the payments, a net balance was reached of $3,503.63, for the recovery of which this suit was brought.

The defendant pleaded the general issue, and thereunder gave notice of a special defense, which was, in effect that during the years 1891, ’93, and ’93, the beer he had received was damaged, spoiled, and of inferior quality; that on the 11th day of April of that year he would have owed the defendant the sum of $3,300 if the beer furnished had been of good quality; that he refused to pay the plaintiff the amount of money claimed to be due for the reason that the beer was damaged, etc.; .that he had informed plaintiff that he would not continue to handle its beer in the city of Saginaw longer; that the plaintiff insisted on defendant handling its product; that it would cancel the claim of indebtedness of $3,200 claimed to be owing said plaintiff by defendant in the following manner: The said defendant was to continue purchasing beer from said plaintiff, and plaintiff was to deduct the sum of 25 cents a barrel for each and every barrel of beer purchased by said defendant, to wit, after the 11th day of April, 1893, and, when said defendant had purchased a sufficient number of barrels of beer so that the total'amount equaled $3,200, giving a credit of 25 cents on each barrel of beer purchased, then the plaintiff was to cancel its claim of indebtedness of $3,200. Further, that it was agreed between the plaintiff and defendant that the sum of $3,200 would be carried on the plaintiff’s books as a charge against the defendant, and that he should sign settlement sheets showing the amount of the claim of indebtedness, and that said defendant did sign settlement sheets, which said plaintiff now has in its possession, under and by the agreement which said plaintiff and defendant* had as aforesaid. Further, that said defendant since April 11, 1893, up to October 28, 1907, purchased from said plaintiff 18,062-J barrels of beer, and, by the terms of the agreement made and entered into between said plaintiff and defendant, defendant is entitled to have a reduction of 25 cents on each and every barrel of beer purchased by him, and have said claim of indebtedness of $3,200 canceled, as the same has all been paid as aforesaid. Testimony offered on behalf of the defendant tended to show that the alleged agreement in reference to the rebate was made in December, 1893, instead of April of that year. In the closing argument of the attorney for the plaintiff, he read from the defendant’s notice attached to the plea as follows:

“ ‘That said defendant was to continue purchasing beer from said plaintiff, and was to deduct the sum of 25 cents a barrel for each and every barrel of beer purchased by said defendant, to wit, after the 11th day of April, 1893, and when said defendant had purchased a sufficient number of barrels of beer so that the total amount equaled 13,200.00, giving a credit of 25 cents on each barrel of beer purchased, then the plaintiff was to cancel its claim of indebtedness of $3,200,’ and then further argued to the jury that his claim now was that the contract was made in December, 1893;' that in April, 1893, there was only $3,000 due the plaintiff; and that he had changed his testimony because in December, 1893, it was $3,200.”

Upon this point the learned circuit judge instructed the jury as follows:

“ I instruct you, gentlemen, that in this case the pleadings not having been introduced in evidence, you are not to consider them at all. They must be introduced in evidence in order to be binding; that is, for the purpose of enabling the opposite party an opportunity to furnish any explanation he may desire, either by evidence or argument of his counsel, in order to make the matter admissible for your consideration, and you will, therefore, not take into consideration any statements that have been made here in reference to the inconsistency of the pleadings, and the defense of counsel.”

In this ruling we think the learned circuit judge was in error. Circuit Court Rule 7, subd. e, is as follows:

“Any statement of facts set forth in a notice added to a plea shall be treated as an admission by the defendant and need not be proved by the plaintiff.”

It is doubtless true, as argued by defendant’s counsel, that under the plea defendant could show the making of the alleged contract at a date later than that stated in the notice. But the fact of the variance between the testimony and the statement in the plea as to the date was a ■ matter of proper comment by plaintiff’s counsel, and one which might very well be considered by the jury in passing upon the credibility of the defendant.

• Error is assigned because of the exclusion of a press copy of a letter claimed to have been sent by plaintiff to defendant’s agent Beat. Under the evidence as disclosed by the record, we are of opinion that the court properly excluded the Jetter. See Lowry v. Saginaw Specialty Co., 128 Mich. 246 (87 N. W. 194).

The other errors assigned need not be noticed, as they are not likely to arise on another trial.

For the error pointed out, the judgment will be reversed, and a new trial granted.

Blair, C. J., and Grant, Montgomery, and Mc-Alvay, JJ., concurred.


author: McAlvay, J.

text:
    SAGINAW COUNTY SAVINGS BANK v. DUFFIELD.
    1. Creditors’ Bills — Abatement—Receivers.
    Filing a creditor’s bill, and obtaining an injunction against the transfer of debtor’s property of securing the valid appointment of a receiver during the life of a judgment debtor, gives the creditor a lien on the assets of the defendant which takes precedence over the rights of the personal representatives after the death of the judgment debtor.
    2. Same — Possession of Assets — Executors and Administrators — Receivers .
    The right of the receiver to possession of the property authorizes him to take all the property of deceased from the personal representatives.
    3. Same — Pleadings—Description.
    That the bill of complaint does not specifically describe the property of deceased in no way affects the right to a lien.
    4. Same — Decree.
    Alternative provisions in the decree allowing the executor to pay the judgment or deliver assets of that amount to the receiver, do not prejudice the estate.
    5. Same — Release.
    Filing with the commissioners on claims a statement of all the proceedings releases no rights of the creditor.

      Appeal from Wayne; Rohnert, J.
    Submitted June 16, 1909.
    (Docket No. 120.)
    Decided July 6, 1909.
    Judgment creditor’s bill by the Saginaw County Savings Bank against Henry M. Duffield, executor of the last will and testament of Thomas Pitts, deceased. From a decree for complainant, defendant appeals.
    Affirmed.

      L. T. Durand (De Forest Paine, of counsel), for complainant.

      H. M. & D. B. Duffield, for defendant.
   McAlvay, J.

Complainant was a judgment creditor of Thomas Pitts and Frank W. Wheeler to the amount of $4,054.06 damages and costs of suit taxed at $32.20 upon a judgment rendered in the Wayne circuit court in its favor January 5, 1906. An execution, duly issued for the collection of this judgment, was returned unsatisfied. On or about July 10, 1906, the judgment creditor’s bill in this cause was filed against both defendants, asking for a sworn answer from each, and for discovery of property to apply to the satisfaction of the judgment, and praying for an injunction and a receiver. Subpoena and injunction were issued and personally served upon both defendants. On November 20, 1906, defendant Pitts paid $2,000, which was credited. The balance upon the judgment remains unpaid. On April 25, 1907, the bill was taken as confessed by each of the defendants. Copies of the bill of complaint and notice of the application to appoint a receiver were afterwards served on defendants, Pitts and Wheeler, and upon a hearing Charles E. Hilton was duly and regularly appointed receiver of all the property of both Pitts and Wheeler. He qualified by giving the required bond, and entered upon the duties of his office. A summons was issued by the circuit court commissioner, directing each of these defendants to appear to be examined and make discovery, as was provided in the order appointing a receiver. It was served on defendant Pitts, who was in poor health, and who through his attorney appeared and obtained adjournments of the hearing from time to time until in July, 1907, when he was compelled to leave the State on account of his health. He died absent from the State October 28, 1907. He left a will, which appointed defendant Duffield his executor. The cause was revived, and proceeded against defendant Wheeler and the executor of Pitts. Complainant filed with the commissioners on claims of the Pitts estate its claim, setting forth its history and the proceedings had in this cause, claiming that by reason thereof it had a lien upon the assets of said estate prior' to other creditors, and that its claim should be allowed as a preferred claim. Defendant Duffield filed a plea in abatement to the bill of complaint. The stipulation allowing the amended plea provided that upon filing the same the cause might be set for argument.

“And, the facts stated in the bill and plea being stipulated hereby, the court may make a final decree in the cause, and determine and declare whether or not the complainant has a prior and paramount lien on the assets of the estate of Thomas Pitts, deceased, by reason of the proceedings had and taken on its behalf in this cause.”

Under this stipulation a final hearing was had, and a decree granted, sustaining the contention of complainant, decreeing and establishing that by the proceedings taken complainant acquired a good and valid lien upon all the property of every nature belonging to the defendants, Pitts and Wheeler, to secure the payment of the judgment indebtedness to said complainant, including all costs, and the receiver’s costs herein, which lien continues a prior lien thereon as against the general creditors of the estate of defendant Pitts, and decreed and established said lien, and ordered that the same be certified to the probate court as a judicially established and allowed claim against the estate of defendant Pitts, and that an execution might issue against the property of defendant Wheeler. It was further decreed that defendant Duffield as executor discharge such lien out of the assets of the estate of defendant Pitts, or that he deliver to the receiver the assets of said estate, now or hereafter in his hands, sufficient to satisfy the amount of this lien, and further authorized the receiver to institute all necessary proceedings'to insure the recovery of any assets of said estate to satisfy the same, and ordered a copy of said decree to be filed in said estate in the probate court. From this decree the executor has appealed.

The questions raised by him before this court are:

“First. Had the complainant established a lien at the time of the death of Pitts on all Ms property of every name and nature, or did the cause abate as to the executor as the representative of his other creditors ?
“Second. In case the court finds such a lien to have been established, can the receiver take all the property of the estate out of the hands of the executor, and out of the control and jurisdiction of the probate court, and into his possession, and collect the complainant’s debt therefrom ? ”

Defendant executor urges that no lien was established at the time of the death of defendant Pitts upon his property by the proceedings relied upon, and contends that the rule had been settled by this court to that effect in the following cases: Jones v. Smith, Walk. Ch. (Mich.) 115; German American Seminary v. Saenger, 66 Mich. 249 (33 N. W. 301); Beith v. Porter, 119 Mich. 365 (78 N. W. 336, 75 Am. St. Rep. 402). It must be conceded that, if the case at bar cannot be distinguished from the cases cited, complainant has no lien upon any of the assets of this estate, and the decree in his favor must be reversed and the bill dismissed. The proceedings in this case had proceeded upon personal service, duly had upon both defendants, of the subpoena and injunction. The bill had been taken as confessed by both. The receiver was appointed after personal service of the notice of the application and of copies of the bill of complaint, and immediately after such appointment the receiver qualified and ■entered .upon the duties of his office. The summons to appear for examination and disclosure was duly served on defendant Pitts, and by request of his attorney, on account of his sickness, adjournments were had. He never recovered, and no disclosure was made.

The case of Jones v. Smith, supra, was a petition to revive a judgment creditors5 suit against the personal representatives of a deceased debtor, and it was held that the filing of a judgment creditor’s bill, without answer or the appointment of a receiver, creates no lien upon the debtor’s property, and the case may not be revived against the personal representative. The court held that this was so because “the suit had not progressed so far as to create a lien.” The court said:

“ The statute does not make the filing of the bill a lien on the property of the debtor. It authorizes the court to decree a satisfaction of the amount remaining due on the judgment out of any personal property, money, or thing in action belonging to the debtor, and arms the court with power to compel a discovery of the debtor’s property, and to prevent his transferring it.’5

In German American Seminary v. Saenger, supra, the case of Jones v. Smith was cited and approved. The question decided was whether a lien had attached in the case of a judgment creditor’s bill where no injunction or receiver had been prayed for or granted, and whether the action survived. The court said:

“The usual practice in suits by judgment creditors is to obtain in due season, where the facts warrant it, the appointment of a receiver, who is to collect and apply the assets. The statute does not, and the rules do not, declare any lien to be created by merely filing a creditor’s bill. Until the debtor is enjoined from dealing with his property there is nothing in the law to prevent any honest disposition of it, and until a receiver is appointed, there is nothing which will act upon the property itself. Except for the statute, a judgment creditor’s bill is like any other suit, a mere personal litigation. Until the assets are arrested and held in some way, the death of the defendant leaves them subject to administration.”

In Beith v. Porter, supra, the question as to the abatement of a judgment suit upon the death of the debtor was again before the court, and it was said, relative to the two cases just discussed:

“If we are to construe those cases as authority for the broad doctrine that all proceedings upon a creditor’s bill abate upon the death of the debtor, except when execution has been levied, or the property taken in charge by the court, they are conclusive in this case, and only by overruling those cases can the bill be sustained.”

In approving these cases the court declared that they established the doctrine in this State. These cases go to this extent, and no further:

“ That all proceedings upon a creditor’s bill abate upon the death of the- debtor, except when execution has been levied, or the property taken in charge by the court.”

In all of them the intimation by the court is strong that the issuing and service of an injunction, or the regular appointment of a receiver, would create a lien upon the assets of the decedent, and the suit would survive his death. These cases have been considered somewhat at length, in order that the distinction between them and the case at bar may be apparent. In this case the proceedings held by the court to be necessary to create a lien upon assets and to prevent the abatement of the suit were had. An injunction was prayed for, granted, issued, and personally served upon defendant Pitts. The bill also prayed for a receiver, who was appointed and qualified during Pitts’ lifetime, and of which he had notice, as well as notice to appear for examination and disclosure of assets. Inferentially the cases relied upon by the executor are authority for holding that in this case a lien had been created, and the suit did not abate.

By the injunction defendants were prohibited and restrained from interference with, or making disposition of, any and all property whatever. The order appointing the receiver established a receivership over the entire effects, clothed him with the usual powers of a receiver, authorized him to take immediate possession of such effects, and commanded each of the defendants to deliver over to the receiver all of such property, interests, and effects. By either or both of these proceedings the assets of the defendants were impounded and held by the court. Authorities need not be cited to the proposition that any interference with, or transfer of, the defendants’ assets by them, or either of them, would be punishable as for a contempt of court. It is the law that the title of the receiver and his right to possession vest by relation back to the date of the order appointing him.

“ It is sufficient that the court has assumed jurisdiction over the property in controversy by appointing a receiver, and it is, therefore, as much in the possession of the court as if already in the hands of its receiver.” High on Receivers (Bd Ed.), § 136.

It is claimed that, even if a lien had been established by the proceedings which complainant had taken, nevertheless a lien would not attach, because no specific property and assets were described in the bill of complaint. These proceedings were taken under our statute (sections 436, 437, 1 Comp. Laws), providing for judgment creditors’ bills, authorizing filing the same to compel the discovery of any property or things in action belonging to defendant, or money, etc., due to him, and to prevent the transfer of any such property (with certain exceptions). Complainant has followed the requirements of the statute, and Chancery Rule 30. This was a bill for a discovery. The bill set forth that defendant Pitts had equitable interests in certain property, giving a description of a long list of the same, and prayed discovery, etc. The description was as specific as would be possible in a majority of these cases. The statute provides, not only for compelling discovery by the court, but also power to decree satisfaction of the judgment out of any property, money, or other things belonging to defendant. This authorizes payment out of the property found. To hold as contended by defendant executor would defeat the purpose of the suit and of the disclosure, and would take from the statute the beneficial effect it intended to give suitors. Under this statute the lien would attach to the effects which might be ascertained, to the amount of the judgment.

The lien of complainant upon the assets of this estate is certainly superior to the claims of all unsecured creditors; and, if this property, upon disclosure in this case, would have been turned over to the receiver, then it logically j follows that this lien is superior to the rights of the personal representative. In effect it can be no different from a mortgage lien on property. Death of a mortgagor, and the administration of his estate, would not operate to make the mortgagee contribute to the expenses of last sickness, etc. In this case the same rule would apply, except as to property exempted by this statute.

We do not think that the terms of the decree, in the alternative, allowing the executor to pay complainant’s judgment out of the assets of the estate, or deliver the assets to that amount to the receiver, work any hardship against the executor. If the estate should prove to be solvent to the extent of complainant’s judgment and the claims which the executor would be required to pay before distribution, the .question could not arise. If the estate is not sufficient for such purposes, the court cannot take from complainant that which rightfully belongs to it. By filing this claim with the commissioners on claims, giving a complete history of it and of all the proceedings, complainant released no right. The record shows that it gave a full statement of the judgment relied upon, the amount paid thereon, and the • history of the proceedings under its creditor’s bill, as herein fully set forth.

The decree of the circuit court is affirmed, with costs.

Blair, C. J., and Grant, Montgomery, and Brooke, JJ., concurred.


text:
    PEOPLE v. TURJA.
    1. Criminal LAw — Certiorari—Justices’ Courts.
    The writ of certiorari will not issue from the Supreme Court to justice’s court except where no other remedy remains and it is necessary to prevent a failure of justice.
    2. Same — Juvenile Offenders — Complaint and Warrant.
    A charge that respondent was a disorderly juvenile offender, in that she neglected and refused to go to school and was a truant and is an unmanageable child, is insufficient to sustain a conviction. Act No. 200, Pub. Acts 1905; 3 Comp. Laws, § 11765.
    3. Same — Statutes—Construction.
    A justice of the peace obtains no jurisdiction over a juvenile offender if he fails to notify the county agent, and give a full opportunity for investigation, and for the report as provided by Act No. 221, Pub. Acts 1903, which must be construed as favorably as possible for the child.
    Certiorari to justice’s court of the city of Hancock; Olivier, J.
    Submitted June 17, 1909.
    (Docket No. 124.)
    Decided July 6, 1909.
    Hannah Turja was convicted in justice’s court of being a disorderly juvenile offender, and sentenced to confinement in the industrial school for girls at Adrian until she attained the age of 21 years.
    Reversed and respondent discharged.

      Burritt & Burritt, for appellant.

      William J. MacDonald, Prosecuting Attorney, for the people.
   McAlvay, J.

Respondent was charged January 20, 1909, on complaint of her father, before a justice of the peace, with being “a disorderly juvenile offender, in that she neglected and refused to go to school and was a truant and is an unmanageable child, contrary to the form of the statute.”

She was, at the time, of the age of 14 years and 8 months. A warrant was at once issued returnable forthwith, and placed in the hands of a deputy sheriff. She was taken into custody on January 29th and brought into court. The county agent of the State board of corrections and charities was then for the first time notified by telephone, and appeared before the court. The young girl was arraigned, and her plea of guilty taken. It does not appear that any witness except the father was sworn. The county agent took part in the hearing and advised with and counseled the justice. She was found guilty as charged, and on the recommendation of the county agent she was sentenced to the reform school for girls at Adrian until she attained the age of 21 years. A commitment issued February 1, 1909. The justice returns that the county agent did not make a written report to him until after sentence. The respondent was taken to Adrian, and is now held in that institution by virtue of this commitment. She was not represented by an attorney in this case, and the attorneys who present her case to this court have sought a review by a common-law writ of certiorari, upon the ground that a remedy by certiorari to the circuit court was lost by lapse of time, and no other remedy remained.

As a general rule, certiorari will not lie from this court to justices’ courts. In cases where it is necessary to prevent a failure of justice, an exception is made and the common-law writ allowed. Withington v. Southworth, 26 Mich. 381; Adams v. Abram, 38 Mich. 302; White v. Boyce, 88 Mich. 349 (50 N. W. 302). In our opinion, this case comes within the exception, and the errors relied upon by respondent will be considered. The fact that in this case a person is under a sentence which will deprive her of her liberty for a term of years adds force to the reasoning of the cases cited, in which only property of a small amount was involved.

It is assumed, and not contradicted by the representative of the people, that this case was brought under the provisions of Act No. 221, Pub. Acts 1903. Errors are alleged upon the insufficiency of the complaint and warrant in alleging no offense, and in the warrant having been issued before notice to, and a written report by, the county agent, and also in proceeding to a conviction and sentence before such report was made. As the basis of proceedings to justify a conviction and sentence to imprisonment for a term of years, the complaint and warrant are not sufficient. The substance of the charge has already been given. There is no allegation as to the age of the girl; that she was not excused from attending school; that she was under parental charge, and against the command of the parent had wilfully absented herself from the school she was attending, as provided by the statutes which define truancy.

The requirements of the statute relative to the notice to, and report of, the county agent were not complied with. This statute must be construed as favorably as possible in the interests of these children. The legislative intent was to have this preliminary investigation to determine whether a warrant should be issued, and a report to the justice before issuing it. It is clear from the record before us that the justice’s court obtained no jurisdiction over respondent, and that the proceedings were void. Careful supervision by officers thereto authorized, in the few counties, including Houghton, where this act continues to be operative since the juvenile court act was passed, will avoid a recurrence of the errors found in this case.

Eor the errors pointed out, the judgment and sentence is vacated and set aside, and this young girl will be released from her confinement. She will be returned to Houghton county in charge of a woman appointed for that purpose by the proper authority and at the charge of said county.

These proceedings will be without prejudice to any proper investigation by the proper authorities.

Blair, C. J., and Grant, Montgomery, and Brooke, JJ., concurred.


text:
    PEOPLE v. BLAKE.
    1. Criminal Law — Arrest Without Warrant — Evidence.
    In a prosecution for shooting and killing an officer who attempted to arrest the respondent without a warrant, evidence of the crime for which the arrest was made and of conversations between the officer and third persons was admissible, as it tended to show the commission of the crime and reasonable grounds for believing that respondent had committed it.
    2. Trial — Reopening Case. .
    It is within the reasonable discretion vested in the trial court to reopen a criminal case during the argument and admit in evidence exhibits which had been used and referred to in the testimony; sufficient opportunity being given to the respondent to make objections and introduce further testimony in rebuttal.
    3. Criminal Law — Indeterminate Sentence.
    On a conviction for murder in the second degree, a sentence for life may be imposed without fixing a maximum and minimum term. 3 Comp. Laws, § 11471; Act No. 184, Pub. Acts 1905.
    Error to Jackson; Parkinson, J.
    Submitted June 17, 1909.
    (Docket No. 125.)
    Decided July 6, 1909.

      John Blake was convicted of murder in the second degree, and sentenced to imprisonment for life in the branch of the State prison at Marquette.
    Affirmed.

      Forrest O. Badgley and John E. Shekell, for appellant.

      A. O. Beece, Prosecuting Attorney, for the people.
   Brooke, J.

In May, 1906, the defendant was tried upon the charge of murder, and was by the jury convicted of murder in the second degree. He was thereupon sentenced to life imprisonment in the Marquette prison.

It appears that upon the night of March 18, or the early morning of March 19,1906, the pest office in the village of Brooklyn, located about 16 miles south of Jackson, had been broken open and a burglary committed. On the morning of the 19th E. H. Parish, then sheriff of Jackson county, received news of the Brooklyn burglary, and at about the same hour Sergeant Booth, a police officer of the city of Jackson, likewise heard of the burglary, and further received information that three men had been seen driving north from Brooklyn toward Jackson. A little later Booth called up Parish by telephone, and stated that three suspicious looking men had been seen at Farrell’s or Merriman’s saloon, whom he thought likely were the parties they wanted. He further asked Parish to hitch up his horses to a double carriage and drive him (Booth) and another police officer by the name of Mclnerney out to the saloon in question. This was done by Parish. On the way out to Merriman’s saloon Sergeant Booth told Parish and the other officer that there was no question in his mind from what he had heard that the three men were the parties wanted. Upon arriving at Farrell’s, the horses were turned over to a Mr. Acton, and the officers alighted. On inquiry they were told that the three men were at breakfast at a nearby boarding house. In a short time the three men, Blake, the defendant, Hamilton, and Walpole, came out on the porch of the boarding house, and, after standing there for perhaps a minute, started to walk rapidly away. The three officers went after them, and, when they came very near, Sergeant Booth said, “We are officers, and want you,” at the same time passing Hamilton and Walpole and grappling with Blake, the defendant, by the shoulder. Mclnerney grappled with Hamilton, and Parish with Walpole. Almost immediately the respondent, Blake, jerked away from Booth, drew a revolver and fired, the shot taking effect in Booth’s head, and causing instant death. After the shooting of Booth by Blake, Hamilton drew a revolver on Mclnerney, and succeeded in making his escape together with Blake. They were captured late in the afternoon of the same day in a barn about three miles west of Jackson. All three men were heavily armed, having also upon their person dynamite caps, fuse, and nitroglycerine, and had, further, the property stolen from the Brooklyn post office.

The respondent urges five separate grounds for reversal, as follows:

“ (1) It is the contention of the respondent that the court erred in admitting testimony as to all that occurred at the village of Brooklyn.
“ (2) The court erred in permitting the people to show the conversations which occurred between Booth and various witnesses not in the presence of the respondent.
“ (3) The court erred in opening the case after the proofs had been closed by both parties, and while the prosecuting attorney was making his argument, and in putting into the record, at that time, on his own motion, without the request of the prosecuting attorney, or his assistant, a very large number of exhibits which had been identified in the course of the trial, but had not been offered in evidence.
“(4) The court erred in his remarks made to counsel for respondent after the proofs had been closed and at the time the case was opened by the court on its own motion and the exhibits put in evidence.
“ (5) The court erred in not fixing the maximum and minimum sentence.”

The first and second objections will be considered together. The record discloses that the prosecution went very fully into the evidence concerning the burglary on the night prior to the murder. It will be borne in mind that Sergeant Booth, in his capacity as a peace officer, was in the act of making the arrest of the respondent without a warrant. It was therefore incumbent upon the prosecution to show, first, that information that a felony had been committed had reached Booth; and, secondly, that he had reasonable grounds for believing that Blake and his companions were the men who had committed that felony. It is true that the prosecution might have contented itself with merely showing the fact that a felony had been committed, that information of its commission had reached Booth, and that Booth had reasonable grounds for believing Blake to be one of its perpetrators, in order to' have justified Booth in attempting to make the arrest without a warrant. In going into the details of the burglary at Brooklyn, however, we fail to see how the respondent was in any wise prejudiced. Touching this matter, and in passing upon the objection of respondent’s counsel, the learned circuit judge said:

“The jury ought to understand the purpose, and perhaps I ought to state specifically to the jury that this man is not on trial for blowing a safe, or breaking and entering an office, or committing burglary. The evidence is permitted simply to show what had been done as bearing upon the right of Mr. Booth to attempt the arrest. I admit it for the purpose of showing a crime had been committed which would justify arrest without a warrant, provided Mr. Booth had such information of it as would lead an officer reasonably, with good reason and properly alert, to attempt to do what he did do.”

We think, upon the ground stated, the testimony was admissible. See People v. Wilson, 55 Mich. 506, 515 (21 N. W. 905). See, also, Firestone v. Rice, 71 Mich. 387 (38 N. W. 885, 15 Am. St. Rep. 266).

After the proofs were closed and counsel for the people was addressing the jury, reference was made by him to an exhibit, whereupon respondent’s counsel objected to such reference upon the ground that the exhibit had not been introduced. The court said:

“ Now, gentlemen, those things were here. They were displayed in the presence of the jury, were talked about and testimony given in reference to them and cross-examined upon. The testimony wouldn’t be intelligible without it referred to them. It may be that the prosecuting attorney omitted in reference to some of them or all of them to formally put them in evidence, and, if he did, I will permit him now to put them in evidence.
“Mr. Shekell: Wait a minute. Let’s see whether the court ought to do that.
“Mr. Badgley: We should have offered testimony—
The Court: Very well, we will open the case, and you may offer the testimony now.
“Mr. Shekell: Perhaps our testimony isn’t available.
“The Court: Isn’t available ? You may get the testimony that isn’t available. Will it be available tomorrow morning ?
“Mr. Shekell: I submit this defendant, on trial in a criminal case, has some rights that should be observed. If I read the Constitution correctly, those things are guaranteed to him; and that is, the people must make out their case. We rested our case after they rested theirs. We rest our case upon the proof they had introduced. Now, we are not to blame because they didn’t put in their evidence. It was no part of our duty. Now, they come into this court, and the court is going to permit them in the course of the argument to introduce testimony they should have put in, I want to say this much — if the court thinks it is right, but no knowing where it may lead us. We may have consideredit, and we may not have considered it. We rested our case on the testimony as they rested. [Continuing]: We object — and shall be content with the ruling of the court — we object at this time to the court opening this case and permitting the prosecution to put in any of that testimony, because it will be unfair to this defendant, and to the statement of the court he will permit them to do it. The prosecution hasn’t asked for it — at this time, as being unfair to the defendant and not giving him the trial that should be given him by law.
“The Court: Now, gentlemen, the objection I regard as one of the most technical character. The stuff produced here was here on several days. It was handled. It was handled by the various witnesses and talked about, and testimony had with reference to it. And I think it is practically in evidence.
Mr. Shekell: Supposing they had offered it in evidence and we had objected to it, we would have had a right to be heard at that time.
“The Court: Certainly. Counsel well says, if it had been formally offered, they would have had a right to object, and I now permit the prosecutor to formally offer, and I will listen to the objections, and I will stop this trial and allow any evidence to be put in that has not been put in or would have been put in had the exhibits been offered at the proper time. If necessary, I will suspend the trial of this case for such time as may be necessary to get just such evidence as counsel for defendant would have got. I consider them, in fact, for all practical purposes, actually in the case.
Mr. Shekell: Some of these statements I believe your honor makes hastily. I don’t think, for all purposes, until the prosecution has introduced them, they are in evidence. I understand we have a right to object to them and keep them out.
The Court: I understand your object.
“Mr. Shekell: Does the court say because the plaintiff or people brings things into the court room, and doesn’t offer them in evidence, that they are in evidence and the defendant has waived his right to object to them ?
The Court: They have been talked about and shown to the jury. We will not argue any further, and I will suspend this trial for the rest of the day, until tomorrow morning, if you need the time in order to get witnesses because these exhibits are offered.
“Mr. Badgley: I think, before they get them in, they need a couple of days to get them around in shape to put them in. There haven’t any of them been marked, and nobody can tell which witness identified that thing and which witness identified that.
“ The Court: We won’t argue it any further, gentlemen. You may suspend your argument.
“Mr. Shekell: I would like to put another objection on the record. I object to their going in as one entire lot, because there is no chance for the defendant to object to each and every one, and some may be admissible, and some may not be admissible.
“The Court: If you want to take testimony, the prosecuting attorney must produce them. He may have them marked and each one identified, and you will have your opportunity to get your testimony, if you want it. I will leave it to you, gentlemen, if you want that done we will do it.
“Mr. Shekell: I have made my objection.
Mr. Badgley: And the stuff is in evidence ?
The Court: Exactly. You may take it and classify each one specifically marked, if you ask, so far as it is practicable to mark some of the stuff. It can be identified. If you desire that done, I will suspend for you to get your evidence.
“Mr. Shekell: You needn’t suspend for us to make our case. The prosecution can make the case.
“Mr. Badgley: Your honor has opened the case on account of them. They may take action. The prosecutor hasn’t said he wants to do anything. He hasn’t said he wants this stuff in evidence. Your honor has put that in voluntarily.
“The Court: Very well. I will take the responsibility of directing it put in evidence. I will wait to see whether, in consequence, the defense wishes to open the case and put in testimony.
“Mr. Badgley: I don’t know of any rule of law that will permit the reopening of a criminal case.
tiThe Court: Never mind. I have opened it. Whether there is any law for it or not, it can’t hurt you.
“Mr. Badgley: I take an exception to that remark. Not only the respondent, but the attorneys, have some rights in a case.
“The Court: Mr. Badgley, the court has exercised and allowed great latitude. There are things due to the court. If the court is wrong, you have the benefit of your exception. I am not going to be lectured by any attorney at this bar at any time. I want that understood. Now, I open this, not for the prosecution, but for you. I don’t think there is any favor extended to either side.
“Mr. Badgley: Does your honor say you have a right to open our case for us when we haven’t requested it ?
“The Court: I say I have a right to whether you ask it or not.
“Mr. Badgley: Your honor said you did open it.
The Court: It means the same thing. I permit it to be opened if you want it opened. That’s all there is of it. And it may go on record that counsel for defense don’t ask to put in any further testimony or for any time in which to put in any further testimony, and your argument may proceed.”

That a trial court may, in the exercise of a sound discretion, reopen a case for the purpose of admitting testimony on behalf of either the prosecution or defense, is not open to question. See People v. Kindra, 102 Mich. 147 (60 N. W. 458); Thompson v. Ellsworth, 39 Mich. 719. For other States, see 12 Cyc. pp. 559-561. In exercising his discretion in reopening the case, the trial judge seems to have taken the greatest possible care to protect every substantial right of the respondent. Upon the introduction of the exhibits, his counsel were offered the opportunity to object or put in any testimony which the admission of the exhibits might make necessary. No advantage was taken of this offer by respondent’s counsel, and we must conclude that no such testimony would have been offered by respondent had the exhibits been offered at the time of their identification by the various witnesses.

It is unnecessary to consider the fourth contention of respondent.

The fifth is ruled by the determination of this court in the case of the People v. Vitali, 156 Mich. 370 (120 N. W. 1003).

The conviction is affirmed.

Blair, C. J., and Grant, Montgomery, and McAlyay, JJ., concurred.


text:
    MARSHALL v. SAGINAW VALLEY TRACTION CO.
    1. Evidence — Statements to Physician — Hearsay.
    Complaint made to the physician by plaintiff soon after the injury, that she was unable to sleep, is competent testimony.
    2. Same.
    Testimony of the physician that he could determine whether or not plaintiff was tender at a certain point, in the absence of cross-examination showing that he reached his conclusion from statements made to him, was not objectionable.
    3. Same — Weight.
    The verdict is held to be supported by the weight of evidence.
    4. Damages — Excessive Amount.
    A verdict of $1,500 is not excessive for injuries caused by plaintiff’s being knocked down in boarding a street car, caught under the step, and bruised on head and body, where she was subject to recurring pains nearly a year after the injury.
    Error to Saginaw; Gage (Chauncey H.), J.
    Submitted June 21, 1909.
    (Docket No. 59.)
    Decided July 6, 1909.
    Case by Eliza Marshall against the Saginaw Valley Traction Company for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      Weadock & Duffy, for appellant.

      Beach, O’Keefe & Bockwith, for appellee.
   Brooke, J.

This action was brought to recover damages for injuries claimed to have been sustained by plaintiff in boarding one of defendant’s cars at the corner of Eranklin and Genesee streets in the city of Saginaw upon the 4th day of November, 190?. Plaintiff claims that on the above afternoon she was at the corner of Genesee and Franklin streets, and was standing near the rails of the street car track as the car in question approached the crossing, and that she signaled the car to stop; that when it stopped, she laid hold of the handle bar, placed one foot upon the step, and was about to board the car when the conductor asked her to wait a minute, whereupon two ladies left the car. She claims that she continued to hold onto the handle bar, and that as soon as the alighting passengers had left the car, she again placed her foot on the step in an effort to board the car. She was carrying some parcels in her left hand. It is plaintiff’s claim that while in this position the car was started suddenly, jerking her violently backwards, and that it was as suddenly brought to a standstill, after moving from 6 to 10 feet. By this violent movement plaintiff claims she was thrown to the ground, and partially drawn under the projecting step of the car, receiving the injuries complained of. It was the defendant’s claim that the plaintiff did not offer herself as a passenger for carriage at the time the car was standing still, but attempted to board the same after it was in motion. Plaintiff recovered a verdict of $2,000, which was afterwards reduced to $1,500 by the circuit judge when considering the motion for a new trial. This judgment is brought to this court for review.

Defendant assigns error upon the examination of the physician. He was examined in part as follows:

“Q. Well, what condition did you find her in ?
“A. I found a great deal more of the external evidences of this trouble. She still complained of being unable to sleep, and being more or less—
‘ ‘ Mr. Duffy: I move, if your honor please, that that be stricken out, ‘still complained of being unable to sleep.’
The Court: This was after the third visit?
“A. This was after the third visit. I think the question was, I believe, after the third visit.
The Court: Yes.
“Judge Beach (counsel for plaintiff): He said he couldn’t give the exact time.
“A. I can’t give you the exact days. I saw her a number of times since that.
The Court: You say she still complained. You may state when she first complained of inability to sleep.
“Mr. Duffy: Exception.”

We are of the opinion that this question is ruled by the determination of this court in the case of Will v. Village of Mendon, 108 Mich. 251 (66 N. W. 58).’

The second assignment likewise relates to the testimony of the physician to the effect that he could determine whether she was “tender at that point or not;” the objection being that the physician had not testified how he was able to make such determination, and that he might have reached his conclusions from statements made to him by the plaintiff rather than by a physical examination or observation. This objection is not tenable. Counsel for defendant could have ascertained the sources of the physician’s knowledge by proper examination, had they so chosen.

The next assignment of error relates to the claim of the defendant that the verdict was against the weight of evidence. We have carefully examined the record, and we believe that the learned circuit judge was right in his disposition of this contention. We are of opinion that the record shows, by a fair preponderance of evidence, that the accident to the plaintiff happened in the manner described by her and witnesses on her behalf.

Further assignments of error are based upon the judge’s charge. Taken as a whole, we think the charge fairly states the claims of the contending parties, and the law applicable thereto.

The record shows that the plaintiff was held down under the projecting step of the car, and that she could not be released after it was brought to a standstill until it was backed up some two feet; that after her release she was in a dazed condition, suffering from the shock; that she sustained a bruise over the left temple, another bruise over the left shoulder, and another over the left buttock and the lower portion of the back; that there was a swelling and abrasion of the skin over the back about one-half inch in diameter; that the swelling was quite extensive. She was confined to her bed from 10 to 12 days, and at the date of the trial, several months thereafter, complained of recurring pains in the back. Under these conditions we are asked to say that a judgment for $1,500 is against the just rights of the defendant. We are unable to do so.

Judgment affirmed.

Ostrander, Hooker, Moore, and McAlvay, JJ., concurred.


text:
    LACY v. PIATT POWER & HEAT CO.
    1. Mechanics’ Liens — Amendment oe Notice — Construction.
    Substituting the name of a wrong party as contractor in the statement of a mechanic’s lien is fatal, and not open to amendment in the proceedings for its enforcement.
    2. Same.
    Mechanics’ liens, being in derogation of the common law, are strictly construed as to the question whether a lien attaches, but are construed liberally after the lien has been created. 3 Comp. Laws, § 10736.
    Appeal from Ingham; Wiest, J.
    Submitted June 21, 1909.
    ( Docket No. 58.)
    Decided July 6, 1909.
    Bill by Philo E. Lacy against the Piatt Power & Heat Company and others to enforce a mechanics’ lien. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Morse & Davis, for complainant.

      Rollin H. Person, for defendants.
   Brooke, J.

In November, 1905, complainant furnished 110 loads of gravel and 55f barrels of Portland cement, which were used in repairing defendants’ dam in the city of Lansing, or for filling in a hole below the dam caused by the falling waters. On January 12, 1906, he filed his sworn statement of lien, asserting therein that he furnished the said materials in pursuance of a contract between himself and the Hydro-Electric Development! Company, the contractor. On the 1st day of February, 1906, the dam was sold by the defendant the Piatt Power & Heat Company, to the defendant the Michigan Power Company, and on the 5th day of July following a bond was given to release said mechanic’s lien. Some time after the filing of said claim of lien by the complainant, he learned that there was no such corporation as the Hydro-Electric Development Company, and that the contractor with whom he had done business was Frank Mc-Kean. In August, 1906, he filed his bill of complaint in the present cause, praying that he be declared to have a valid lien upon the property described in his statement of lien for the sum of $203.53. His.fifth prayer for relief is as follows:

“That your orator may be allowed to amend his said statement of lien by striking out the name ‘HydroElectric Development Company ’ now named therein as contractor and inserting in its place and stead the name ‘ Frank McKean ’ as contractor.”

As authority for making the desired amendment, the complainant relies upon section 10736, 3 Comp. Laws, which reads in part as follows:

“This act is hereby declared to be a remedial statute and to be construed liberally to secure the beneficial results, intents, and purposes thereof; and a substantial compliance with its several provisions shall be sufficient for the validity of the lien or liens hereinbefore provided for, and to give jurisdiction to the courts to enforce the same. Amendments to any process, pleadings, or proceedings in such actions to enforce the liens given by this act, either in form or substance, shall be allowed at any time before final decree is rendered, on application of either party upon such terms and conditions as justice may require.”

In discussing the effect of the statute in the case of Smalley v. Terra-Cotta Co., 113 Mich. 141 (71 N. W. 466), this court said:

“ It seems to me, however, that the rule is correctly stated in 2 Jones on Liens (2d Ed.), § 1554, where it is said:
“ ‘ The rule of construction applicable to questions arising under these liens may be strict at one stage of the proceedings, and liberal at another. Mechanics’ liens are in derogation of the common law, depending for their existence wholly upon statutes, and therefore, upon the question whether a lien attaches at all, a strict construction is proper.’
“ Section 1556 of the same author reads:
‘“But, after the lien has once attached, a liberal construction should be put upon the statute for the purpose of fulfilling its objects. The statute is highly remedial in its nature, and should receive a practical and reasonable construction to effect its objects.’”

The last portion of section 10736, refers, in our opinion, not to the statement of lien, but by its very terms relates to the process, pleadings, or proceedings in an action for its enforcement. Again, in Waters v. Johnson, 134 Mich. 436 (96 N. W. 504), where the lienor claimant had named another person as the owner of the property, it is said:

“The statute, in our judgment, imperatively requires that said owner be named in the claim, save when his name is unknown, in which case it need not be stated, and that service be made upon said owner within 10 days. It follows, therefore, that when the lien claimants proceed against a certain person as the owner, and positively swear in their claim that he is the owner, they will not be permitted to excuse this mistake by pleading ignorance, unless, as hereinafter pointed out, that ignorance is justly chargeable to the owner himself.”

Upon principle we are unable to distinguish the case of Waters v. Johnson, supra, from the case at bar. The notice of the lien in question served upon the defendant Piatt Power & Heat Company served no purpose, because it conveyed no information to them that the complainant was furnishing labor or material for any person or corporation with whom it held contractual relations.

Decree affirmed.

Ostrander, Hooker, Moore, and McAlvay, JJ., concurred.