author: Stone, J.

text:
    CITY OF KALAMAZOO v. TITUS.
    1. Statutes — Powers of Legislature — Right of Local Self-Government.
    By our system of State government the right of local self-government is, and always has been, a part of the system, but under the Constitution the legislative power of the State, and all of it, is reposed in the legislature, save only as reserved by referendum and initiative.
    2. Municipal Corporations — Creatures of Legislature — Derived Powers.
    Municipal corporations created by the legislature have no inherent jurisdiction to mate laws or adopt regulations of government; they are governments of enumerated powers, acting by a delegated authority, and can exercise those powers only which are expressly or impliedly conferred, and subject to such regulations or restrictions as are annexed to the grant.
    3. Same — Constitutional Law — Public Utilities — Legislative Control.
    Although the Constitution of 1909 provided that cities and villages might acquire, own and operate public utilities, etc., it recognized and affirmed the theory that cities owe their origin and their powers to the legislature, and that the latter has general control over them.
    4. Same — Right to Fix Rates of Public Utilities — Delegated Power.
    If a city has power to regulate the rates of public utility companies using the streets, alleys or public places of the city in any case, it is a derived, a delegated, power, the source of which is the Constitution and the general law under which it is organized.
    5. Same — Local Self-Government — Right to Fix Rates — Interference bt Legislature.
    Power to regulate rates of public utility companies is not a power necessary to local self-government, denial of which, or interference with the exercise of which, by the legislature, would be interference with local self-control.

      6. Same — Eight to Fes Bates — Delegated Powers — Inferred Powers.
    Although the “Home Rule Act” (Act No. 279, Pub. Acts 1909, 1 Comp. Laws 1915, § 3304 et seq.) delegated to cities the power to provide for the use, regulation, and control of their streets by public utility companies, the power to fix compulsory rates can not be inferred, where it was not expressly delegated.
    7. Gas — Rights of Company Derived from State.
    A gas company derives its right to make and sell gas, not from the city, but from the State.
    8. Municipal Corporations — Gas Rates— Power of City to Fix Under Home Rule Charter.
    No power having been delegated to cities under the “Home Rule Act” to fix compulsory rates for public utility companies, the city of Kalamazoo had no authority, under its charter, adopted in pursuance of said act, to prescribe compulsory rates for gas, and an ordinance prescribing rates at which gas should be furnished to consumers and providing a penalty for its violation, is therefore void.

    Certiorari to Kalamazoo; Weimer (George V.), J.
    Submitted January 21, 1919.
    (Calendar No. 28,636.)
    Decided December 23, 1919.
    Mandamus by the city of Kalamazoo to compel Albion B. Titus, justice of the municipal court, to issue a warrant for the violation of an ordinance. From an order denying the writ, plaintiff brings certiorari.
    Affirmed.

      Marvin J. Schaberg and Harry C. Howard, for appellant.

      Albion B. Titus and Alfred J. Mills, for appellee.
    The city attorney of the city of Kalariiazoo applied to the justice of the municipal justice’s court of that city to entertain a complaint against the Michigan Light Company, a corporation furnishing gas to the city and its inhabitants, and to issue a warrant upon said complaint against said Michigan Light Company. The justice refused to entertain the proceeding. Thereupon the city applied to the circuit court for Kalamazoo county to issue the writ of mandamus requiring the justice to entertain the proceeding. An order to show cause was issued, an answer made, a hearing was had upon the petition and answer, and the court refused the writ. A writ of certiorari was sued out of this court to review the action of the circuit court. The complaint which it was proposed to file with the justice is not before us. The ordinance of the city of Kalamazoo which it is claimed has been violated by the Michigan Light Company is known as ordinance No. 1, containing 33 sections, approved June 10, 1918, and is entitled:
    “An ordinance to regulate the sale of gas in the city of Kalamazoo; provide for the appointment of gas inspector and prescribing the duties of such officer; providing for the inspection of gas and gas meters ; prescribing rules and regulations for the quality, pressure and measurement of gas supplied to consumers, and for the enforcement thereof; prescribing the rate at which gas may be sold in the city; provide for the extension of gas mains and services, and prescribing penalties for the violation thereof.”
    Section 2 of this ordinance reads:
    “From, including and after the 15th day of June, A. D. 1918, any person, persons, firm or corporation furnishing gas in the city of Kalamazoo by means of pipes or mains laid in the streets, alleys, or public grounds of said city shall furnish such gas of the quality, and in accordance with the regulations herein provided in this ordinance to all parties desiring to use the same along the streets, alleys and grounds where such mains or pipes are laid at a price of not to exceed eighty-five (85c) cents per one thousand cubic feet, provided that the person, firm, or corporation so furnishing said gas máy charge a minimum fee of not to exceed twenty-five (25c) cents per month, and provided further that any person, firm, or corporation so furnishing gas may add to the amounts charged for gas delivered by such person, persons, firm, or corporation and consumed by parties desiring to use the same a percentage of not to exceed ten (10) per cent., which may be collected by said person, persons, firm, or corporation so furnishing gas, in all cases where bills rendered for the gas consumed shall not have been paid by the consumers within fifteen (15) days after the expiration of the month for which the bill is rendered. No rent or charge whatever shall be charged by any person, firm, or corporation furnishing gas in the city of Kalamazoo to the consumers for any meter in addition to the prices hereinbefore provided.”
    The concluding paragraph of section 32 is:
    “This ordinance shall not be construed in any way as a franchise, but is merely regulatory, and the city commission reserves the right to alter, amend, or repeal this ordinance at any time, and to make such further rules, orders, and regulations as' may from time to time be deemed necessary to the city commission to protect the interest, safety, and welfare of the public, or the rights of property of the city of Kalamazoo.”
    It is provided (section 31), after enumerating various penalties incurred by specific violations of the ordinance, that—
    _ “In case of any other violation of any of the provisions or sections of this ordinance in which a penalty is not otherwise expressly provided, the sum of one hundred ($100.00) dollars for each and every violation thereof, and each day’s violation thereof shall be considered a separate offense.”
    It is set out in the petition for the writ of mandamus that on the 15th day of August, 1918, the Michigan Light Company charged one Dr. Paul T. Butler, a-citizen of Kalamazoo, for gas. at the rate of one dollar per thousand feet, contrary to the provisions of the said ordinance. It is also alleged that the Michigan Light Company has absolutely refused and neglected to in any maimer comply with the ordinance, that it has denied the validity of the same, and operates its plant and uses the streets of the city without regard to the provisions of the ordinance and without obtaining any permission or authority whatsoever from the city.
    The ordinance was passed, it is alleged, by virtue of the authority found in section 156 of the charter of the city of Kalamazoo, reading:
    “The city commission shall have the power and authority to regulate the rates of all public utility companies using the streets, alleys or public places of the city of Kalamazoo in all cases in which the franchise rights of such utility companies have expired or at the expiration of any franchise hereafter.”
    The charter was adopted by the electors of the city February 4, 1918, acting in that behalf under the provisions of Act No. 279, Public Acts of 1909, as amended (1 Comp. Laws 1915, § 3304 et seq. The city commission is the legislature of the city.
    The Michigan Light Company is a Michigan corporation which once had a franchise from the city in which the rates to be charged for gas were agreed to, which franchise (ordinance 121) expired by limitation July 14, 1916. Since the last-mentioned date, it has occupied the streets and conducted its business without permission of the city, serving the inhabitants as theretofore, selling gas at' prices fixed by itself. No material facts are in dispute.
    In his answer to the order to show cause the municipal justice denied that the city has authority to adopt an ordinance “regulating the rate of gas to be sold in the city,” and asserted that he—
    “refused to issue process or institute proceedings against the Michigan Light Company under the provisions of said ordinance because said ordinance is invalid, and the municipal justice court has no jurisdiction because the ordinance in question is legislative in character, and under the provisions of a ‘home rule charter/ so-called, the city commission of the city of Kalamazoo does not possess the power to enact a legislative ordinance to be enforced by a proceeding penal in its nature and that therefore this defendant in issuing process under said ordinance would be acting without jurisdiction.”
    The order of the circuit court contains the following:
    “It appearing to the court that the ordinance attached to said petition and known as ordinance number 1 of the city of Kalamazoo, said ordinance being an ordinance to regulate the sale of gas in the city of Kalamazoo, etc., is invalid because said ordinance is legislative in character, and neither under the provisions of Act No. 279 of the Public Acts of 1909, as amended and now in force, and commonly known as the home rule bill, nor the Constitution or laws of the State of Michigan, did the city commission of the city of Kalamazoo possess the power to enact said ordinance, and therefore the defendant in issuing process under said ordinance would be without jurisdiction.”
    The argument advanced by the city, the plaintiff in certiorari (and we use the language of the brief, which, after a reference to sections 20, 21 and 28 of article 8 of the Constitution, continues), is:
    “The constitutional provisions must be read together, and considered in the light of the relation which they bear to each other. The Constitution provides clearly for local self-government for each city of the State, and reserves to each city the right of reasonable control over its streets, and provides further that under such general laws as may be passed by the legislature, each city has the right to adopt a charter and pass all laws and ordinances in relation to its municipal concern, subject to the Constitution and general laws of this State.
    “There is therefore clearly no constitutional limitation upon the right of the city under a home rule charter to adopt the charter provision hereinbefore set forth.
    “At this point we respectfully contend that under the constitutional provision hereinbefore mentioned, the authority of the legislature to limit the powers of a city under a charter adopted under this constitutional provision is limited as specifically set forth in said section 20, namely, to a rate of taxation and restriction of their powers of borrowing money and contracting debts.
    “In other words, we respectfully contend that it is the clear intent of the Constitution to grant to cities of the State of Michigan local self-government, except to such restrictions as the legislature may by general law place upon their rate of taxation, and their power of borrowing money and contracting debt. We do not believe that it was ever the intent of the framers of the Constitution that a city is limited in its home rule charter to only such powers as it may obtain by legislative grace.
    “A reasonable construction of this constitutional provision would be that a municipality has the right to adopt such local legislation as it sees fit under such procedure as may be defined by the legislature, provided such legislation does, not conflict with the Constitution or general laws of the State, that the cities were really granted local self-government, that is the power to determine such policies and adopt such ordinances as the city might deem beneficial to its inhabitants, bearing in mind always that such general laws as the legislature adopted would be supreme where there is any conflict between a local ordinance and a State statute.”
    It is further contended that, if it is determined that the power claimed and expressed in the charter is not conferred in the Constitution itself, it was delegated by the legislature in the act of 1909 (1 Comp. Laws 1915, § 3307) in the words—

      “Each city may in its charter provide: * * *

      “(g) For the use, regulation and control of the surface of its streets, and of the space above and beneath them.”
    And counsel say:
    “A careful examination of this language renders it difficult to imagine how the entire power over the use, regulation, and control of the streets could be granted in broader or more inclusive terms. This section makes it possible for any municipality to provide in its charter for the use, regulation, and control of its streets to the broadest possible extent, and to contend that this language would not include the right to regulate a rate conditional upon the use of the streets by a public utility would seem to be a travesty in the light of this language. This power is not only broad, but indicates that the legislature intended that it should be broad and inclusive of everything. The legislature does not enumerate, nor attempt to define or limit the extent of the power of the city over its streets. It may provide first for the use of its streets and the space above and beneath them. It may provide for the regulation of its streets, and finally for the control of its streets. It is not necessary to put any strained construction upon these words for the legislature never intended that this construction should be strained nor limited. The dictionary can be searched in vain for any broader or more inclusive language, and the vocabulary can conceive of no word which could have been used which would have granted to a municipality broader power than this. It was meant to¡ grant to a city home rule so far as its streets were concerned, and the vesting of the Use, regulation, and control is left to the electors in their charter.”
    Various reasons are asserted by counsel for defendant in certiorari why the charter of Kalamazoo ought to be held to be invalid. The question sought to be settled, and the only one considered, is whether the city had power to enact and enforce an ordinance fixing the prices for which the Michigan Light Company shall sell gas.

      On power of municipality apart from contract, to regulate the rates to he charged by public service corporations, see notes in 33 L. R. A. (N. S.) 759; 43 L. R. A. (N. S.) 994.

   Stone, J.

(after stating the facts). In City of Kalamazoo v. Kalamazoo Circuit Judge, 200 Mich. 146, it appeared that the city, then existing under a special charter, after the expiration of a franchise of the Michigan Light Company, passed an ordinance, taking effect August 1,1016, fixing the price to be charged for gas at 75 cents per thousand feet and imposing penalties for disobedience of its provisions. The city sued to recover a penalty because the company persisted in charging more than the prescribed price. Upon an appeal to the circuit court, the city asked for an order permitting it to examine the books of the company, and the company moved to dismiss the case on the ground that the ordinance was invalid. It was dismissed. An order to show cause why the order dismissing the suit should not be set aside was made by this court, and upon the petition for the order and the return we decided, (1) that the fixing of such prices or rates is a governmental, legislative, function, which (2) may be delegated by the legislature to a municipality, but (3) only in express terms or by necessary implication, and that it did not appear that the power had been delegated to the city, expressly or by necessary implication, (4) that the asserted power was not conferred upon the municipality by section 28, article 8, of the Constitution. City of Detroit v. Railway Co., 172 Mich. 136, was cited. Thereafter, as has been related, the city of Kalamazoo adopted its present charter and enacted the ordinance in question.

The charter provision, the ordinance, the argument made for the city, indeed, the suit itself, reflect a popular interest in, and, we conceive, a popular misunderstanding about the subject of home rule, so-called, in cities. There is apparent a widely spread notion that lately, in some way, cities have become possessed of greatly enlarged powers, the right to exercise which m,ay come from mere assertion of their existence and the purpose to exercise them. Whether these powers are really inherent in the community, but their exercise formerly was restrained, or are derived from a new grant of power by the State, or may be properly ascribed to both inherent right and to a new grant, are questions which do not seem to bother very much the advocates of-the doctrine that they in any event exist. On the other hand, there is expression of grave doubt whether, in the view of the law, there has been any enlargement or extension of the subjects of municipal legislation and control or of the powers of cities except as those subjects and powers are specifically enumerated and designated in the Constitution itself and in the home rule act.

Political experiment has not yet produced, in this State, the autonomous city, — a little State within the State. We have a system of State government and the right of local self-government is, and always has been, a part of the system. We have, as we have always had, a State Constitution, the fundamental law. By it, now, as formerly, the legislative power of the State, and all of it, is reposed for exercise in a legislature; save only as reserved by referendum and initiative proceedings, which are not here involved.

“One of the settled maxims in constitutional law is, that the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority. Where the sovereign power of - the State has located the authority, there it must remain; and by the constitutional agency alone the laws must be made until the Constitution itself is changed. * * *
“It has already been seen that the legislature cannot delegate its power to make laws; but fundamental as this maxim is, it is so qualified by the customs of our race, and by other maxims which regard local government, that the right of the legislature, in the entire absence of authorization or prohibition, to create towns and other inferior municipal organizations, and to confer upon them the powers of local governmexit, and especially of local taxation and police regulation usual with such corporations, would always pass unchallenged. The legislature in these cases is not regarded as delegating its authority, because the regulation of such local affairs as are commonly left to local boards and officers is not understood to belong properly to the State; and when it interferes, as sometimes it must, to restrain and control the local action, there should be reasons of State policy or dangers of local abuse to warrant the interposition.
“The people of the municipalities, however, do not define for themselves their own rights, privileges, and powers, nor is there any common law which draws a definite line of distinction between the powers which may be exercised by the State, and those which must be left to the local governments. The municipalities must look to the State for such charters of government as the legislature shall see fit to provide; and they cannot prescribe for themselves the details, though they have a right to expect that those charters will be granted with a recognition of the general principles with which we are familiar. The charter, or the general law under which they exercise .their powers, is their constitution, in which they must be able to show authority for the acts they assume to perform. They have no inherent jurisdiction to make laws or adopt regulations of government; they are governments of enumerated powers, acting by a delegated authority; so that while the State legislature may exercise such powers of government coming within a proper designation of legislative power as are not expressly or impliedly prohibited, the local authorities can exercise those only which are expressly or impliedly conferred, and subject to such regulations or restrictions as are annexed to the grant.” Cooley’s Constitutional Limitations (7th Ed.), pp. 168, 264 et seq.

The quotations are sufficient to present, in a general way, the theory up to this time judicially admitted of the relation of cities in the State to the State itself. It was said by Chief Justice Campbell in People v. Hurlbut, 24 Mich. 44, 89:

“Our Constitution cannot be understood or carried out at all, except on the theory of local self-government; and the intention to preserve it is quite apparent.”

In the Constitution of 1850, the subject was not left wholly to the application of a general theory of State government, but was referred to in provisions in harmony with that general theory. In article 4, section 38, it was provided that—

“The legislature may confer upon organized townships, incorporated cities and villages, and upon the board of supervisors of the several counties, such power of a local, legislative and administrative character as they may deem proper.”

In article 15, section 13, the legislature is enjoined to provide for the incorporation and organization of cities and to restrict the powers of taxation, borrowing money, contracting debts and loaning their credit.

A general law for the incorporation of cities is not, as we know, a new, but is a very old, thing. We have had such a law for many years. But the legislature was much occupied in granting special charters to cities, and in making successive amendments to such charters. The supposed evils attending upon the enactment of special charters brought about a constitutional amendment. As invention and use created necessity for certain local conveniences, usually furnished and managed by private action, communities sought enlargement of their powers so that they might own and control the means by which such conveniences were furnished. They sought to have these enlarged powers defined and put, in a measure, beyond legislative control. The history of the changes is not important. In the Constitution of 1909 appears the result of them. A brief reference to them will be made. The heading of article 8 of the Constitution is “Local Government.” It is provided (section 20) that the legislature shall provide by a general law for the incorporation of cities and in the general law shall limit their rates of taxation for municipal purposes and restrict their powers of borrowing money and contracting debts. Section 21 reads as follows:

“Sec. 21. Under such general laws, the electors of each city and village shall have power and authority to frame, adopt and amend its charter and to amend an existing charter of the city or village heretofore granted or passed by the legislature for the government of the city or village and, through its regularly constituted authority, to pass all laws and ordinances relating to its municipal concerns, subject to the Constitution and general laws of this State.”

In section 22 permission is. given to any city or village to acquire, own, establish and maintain, either within or without its corporate limits, parks, boulevards, cemeteries, hospitals, almshouses and all works which involve the public health and safety. In section 23 it is provided that, subject to the provisions of the Constitution, any city or village may acquire, own and operate, either within or without its corporate limits, public utilities for supplying water, light, heat, power and transportation to the municipality and the inhabitants thereof and may sell and deliver water, heat, power and light without its corporate limits, and may operate transportation lines without the municipality within such limits as may be prescribed by law. The method of financing the acquisition and operation of a public utility is dealt with in section 24, and in section 25 limitations are laid upon the exercise of the powers conferred. Section 28, because its provisions are relied upon by the plaintiff in certiorari, is set out :

“Sec. 28. No person, partnership, association or corporation operating a public utility shall have the right to the use of the highways, streets, alleys or other public places of any city, village or township for wires, poles, pipes, tracks or conduits, without the consent of the duly constituted authorities of such city, village, or township; nor to transact a local business therein without first obtaining a franchise therefor from such city, village or township. The right of all cities, villages and townships to the reasonable control of their streets, alleys and public places is hereby reserved to such cities, villages and townships.”

With regard to the subject we are considering, the impressive thing about these constitutional provisions is that they recognize and affirm the theory that cities owe their origin and their powers to the legislature. And while cities may refer power to do some things, as, for example, power to acquire certain public works, directly to some of these constitutional provisions, it must be admitted that all of these provisions should be considered with reference to the fact that legislative power is vested in the legislature and that the Constitution recognizes, as former Constitutions have recognized, the general control of the legislature over cities. That the legislative power ought , to be exercised in such manner as to preserve the right of local self-government is a doctrine which in application in no way modifies or qualifies the idea of the general legislative power of creation and control. If, therefore, the city of Kalamazoo, in its city commission, has power—

“to regulate the rates of all public utility companies using the streets, alleys or public places of the city”

in any case, It is a derived, a delegated, power, the source of which is the Constitution and the general law under which it is organized.

We might go further and point out, what is true, that power to regulate rates of public utility companies is not a power necessary to local self-government, denial of which, or interference with the exercise of which by the legislature, would be interference with local self-control. Counsel for the city, however, rely upon a derived, a delegated, power.

Has the legislature in the general law delegated to cities the power to fix rates — compulsory rates — for public utilities, or any of them? It is not contended that it has done so in terms. The contention made in respect to the power to fix the price of gas is, as has been pointed out, based upon the rather plenary grant of power to provide for the use, regulation and control of streets. But the fixing of a compulsory price for gas cannot be reasQnably referred to use, regulation or control of streets. The gas company derives its right to make and sell gas, not from the city, but from the State. Beyond this, we held in Traverse City v. Railroad Commission, 202 Mich. 575, 581, and in City of Kalamazoo v. Kalamazoo Circuit Judge, supra, with a reference to decided cases, that such a power, if delegated, must be delegated in express terms. As affecting the question before us, the city does not appear to have derived any new powers of legislation with its new charter. As in City of Kalamazoo v. Kalamazoo Circuit Judge, its contentions are overruled.

The matter and language of this opinion are largely those of the late Justice Ostrander, which are now formulated into this opinion of the court.

/ Judgment is affirmed, with costs to defendant in certiorari.

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


source: Caselaw Access Project

author: Fellows, J.

license: Public Domain

text:
    KENTUCKY WAGON MANFG. CO. v. KALAMAZOO CIRCUIT JUDGE.
    1. Mandamus — Return to be Taken as True Unless Traversed.
    On mandamus against a circuit judge, the return of the judge unless traversed must he taken as true.
    2. Process — Default—Regularity — Circuit Court Rule — Setting Aside Default.
    The service of a copy of the rule to plead, instead of a ' notice thereof, on defendant, at the time of service of the declaration, was not such a defect in the proceedings as to affect the regularity of the entry of default, and thus toll Circuit Court Rule No. 32, § 4, providing that where personal service shall have been had, and proceedings taken after default on the strength thereof, the default shall not be set aside unless the application shall be made within six months after such default is regularly filed.
    Mandamus by the- Kentucky Wagon Manufacturing Company to compel George V. Weimer, circuit judge of Kalamazoo county, to vacate an order setting aside a default judgment.
    Submitted October 21, 1919.
    (Calendar No. 28,800.)
    Writ granted December 23, 1919.
    Rehearing denied January 28, 1920.

      Robert L. Campbell, for plaintiff,

      Harry C. Howard, for defendant;
    The Kentucky Wagon Manufacturing Company commenced suit by declaration against the Barley Motor Car Company in the Kalamazoo circuit court on the 22d day of December, 1917. Rule to plead was filed, and notice of such rule was indorsed on the original declaration. On the same day the return of the deputy sheriff was filed. He returned that on that day he—
    “served the declaration of which the within is a copy, on the Barley Motor Car Company, the defendant named in said declaration, by delivering to E. H. Beacham, assistant manager of Barley Motor Company, said defendant in said county of Kalamazoo, a true copy thereof, together with rule to plead, attached thereto as hereto attached, and also a copy of the attached affidavit and statement of account.”
    On January 19, 1918, defendant’s default was entered and on July 13, 1918, judgment was entered for $5,925.40 and costs, which were taxed July 30th. On August 13th, and more than six months after the default was entered, defendant filed a motion to set aside the default with accompanying affidavits. These affidavits set up a meritorious defense and allege that the service was not made on Mr. Beacham or any one connected with the company, and deny the agency and authority of Mr. Beacham. An issue of fact was framed and testimony was taken in open court upon the hearing of this motion, as provided in section 12580, 3 Comp. Laws 1915. The circuit judge found on disputed testimony that the service was made upon Mr. Beacham, that he was the agent and assistant manager of the defendant, but concluded that the service was insufficient because the return of the officer showed that a copy of the rule to plead instead of notice thereof was served, and set aside the default. This court issued an order to show cause why mandamus should not issue to compel the vacation of this order. A return has been made, which, at defendant’s request, contains the testimony taken upon the hearing of the motion.
   Fellows, J.

(after stating the facts). The findings of fact made by the circuit judge are supported by testimony taken upon the hearing of the motion. His return to the order to show cause has not been traversed by any pleading filed in this court. We are pointed to no practice which would permit us, upon this state of the pleadings, to try out again the facts found and returned by the circuit judge to be the facts in the case. Under repeated decisions of this court the return of the circuit judge unless traversed must be taken as true.

Circuit Court Rule No. 32, § 4, so far as important here, provides:

“In all cases where personal service shall have been made upon a defendant, and proceedings taken after default on the strength thereof, his default shall not be set aside unless the application shall be made within six months after such default is regularly filed.”

This court has not infrequently been required to enforce the provisions of this rule: Petley v. Wayne Circuit Judge, 124 Mich. 14; Burgard v. Burgard, 175 Mich. 565; St. Louis Hoop & Stave Co. v. Wayne Circuit Judge, 155 Mich. 311; Carpenter v. Judge of Surperior Court, 126 Mich. 8; Biensteadt v. Clinton Circuit Judge, 142 Mich. 633; Caille Bros. Co. v. Saginaw Circuit Judge, 155 Mich. 480; Cook v. Wayne Circuit Judge, 197 Mich. 19. This court has also held that the limitation of the rule does not apply where the default is not regularly entered. Turner v. Ottawa Circuit Judge, 123 Mich. 617; or the proceedings taken on the strength thereof were not valid proceedings. W. H. Warner Coal Co. v. Nelson, 204 Mich. 317.

We therefore come to the single controlling question in the case: Was the service of a copy of the rule to plead, instead of a notice thereof, such a defect in those proceedings as we may say that the default was not regularly entered and thus toll the rule? We are persuaded that this question must be answered in the negative. A copy of the rule gave the defendant the same information that a notice of it would. The purpose of the notice is that knowledge, information of the filing of the rule, shall be given the defendant in order that he may know that he is required to plead within 15 days. A copy of the rule certainly is as efficient for this purpose as notice of it would be. In the recent case of In re Joseph, 206 Mich. 659, we held that the attachment of the notice of the rule to plead to the declaration instead of writing it on the back of the document did not vitiate the service and proceedings. Upon principle we think that case should control here. There the defendant was served with notice of the rule to plead but it was not written on the back of the declaration; here the defendant was given notice of the rule to plead by receiving a copy of the rule itself instead of a notice thereof. , In both cases there was a substantial compliance with the. statute. This was not such a defect in the service as would justify us in holding that the default was not regularly entered.

The writ will issue.

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


author: Brooke, J.

text:
    GROCERS, INC., v. ALLEGAN CIRCUIT JUDGE.
    Process — Service—Attachment oe Notice oe Runs to PieaC— Jurisdiction.
    Where suit was started by declaration, attaching thereto a rule to plead and notice of rula to plead, there was a substantial compliance with the judicature act (3 Comp. Laws 1915, § 12407), and the trial judge was in error in holding that service of the rule to plead and notice thereunder was insufficient to confer jurisdiction.

      Mandamus by the Grocers, Incorporated, to compel Orien S. Cross, circuit judge of Allegan county, to vacate an order dismissing a cause of action.
    Submitted October 7, 1919.
    (Calendar No. 28,882.)
    Writ granted December 22, 1919.

      Wilkes & Stone (Henry F. Jacobs, of counsel), for plaintiff.

      Charles Thew, for defendant.
   Brooke, J.

Plaintiff started suit by declaration, attaching thereto a rule to plead and notice of rule to plead which was proper practice under the applicable law prior to the passage of the judicature act, 3 Comp. Laws 1915, § 12407, which provides:

“All actions at law in any court of record, except mandamus, quo warranto, and certiorari, may be commenced either,
“1. By original writ, or
“2. By filing in the office of one of the clerks of the court, a declaration upon which is indorsed a notice in substantially the following form:
“To..........................Defendant:
“You are hereby notified that a suit has been commenced against you as defendant by................ as plaintiff, and that the within is a true copy of plaintiff’s declaration in said cause, and that if you desire to defend the same, you are required to plead theretd within fifteen days after service upon you of a copy of said declaration.
“Dated....................
“Attorney for piaintiff.”

After service, on motion of defendant an order was entered by the circuit court dismissing said cause for want of jurisdiction of the parties, it being held that the service of the rule to plead and notice thereunder was not a substantial compliance with the provisions above quoted from the judicature act. In so determining we must hold the learned circuit judge was in error. The thing to be accomplished was the notification of the defendant of the pendency of the suit and the time within which he would be required to plead. That purpose was as well accomplished by service under the old practice as under the new. The judicature act in terms requires only a substantial compliance. Pending the hearing of the motion to dismiss the plaintiff filed a new declaration (not entitled in the cause), containing the notice required by the judicature act. A second motion to dismiss the new declaration was likewise granted by the court.

Inasmuch as the court was in error in dismissing the action because of the alleged improper service it is apparent that there was no necessity for filing the second declaration.

The writ will issue requiring the circuit judge to set aside both orders and reinstate the case. Upon the question here involved, see In re Joseph, 206 Mich. 659, and Kentucky Wagon Manfg. Co. v. Kalamazoo Circuit Judge, ante, 267. With costs to plaintiff.

Bird, C. J., and Sharpe, Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred.


text:
    GOODMAN v. DIAMOND.
    Landlord and Tenant — Lease—Construction.
    The decree of the court below determining that defendants, lessees of space in plaintiff’s store building, should have the use of a front portion of one window back to the first panel for display purposes, where it appears that such space had been customarily used by them until friction arose, and their lease gave them the right to “window space for a proper display of millinery,” but without specifying the exact space, and also determining the time of payment of money arising from daily sales by plaintiff to defendants, and the time of payment by defendants to plaintiff of the rent, held, justified by the record.
    Appeal from Genesee; Black (Edward D.), J.
    Submitted October 17, 1919.
    (Docket No. 84.)
    Decided December 22, 1919.
    Bill by Philip E. Goodman, by his attorney, against Harry Diamond and another to enjoin the violation of a lease, and to declare the same forfeited. Defendants filed a cross-bill asking affirmative relief. From the decree rendered, plaintiff appeals.
    Affirmed.

      Harold Goodman, for plaintiff.

      Thomas F. Stockton, for defendants.
   Brooke, J.

The plaintiff in this case operates a store in which he sells ready-to-wear ladies’ goods in the city of Flint. On March 19, 1917, he entered into an agreement with defendant Harry Diamond by the terms of which he leased to Diamond certain space in his store for a consideration of 10% of the gross sales made by Diamond, the minimum to be $125 per month. The agreement covered a period of three years and one month and would therefore expire May 1, 1920. One clause of the contract provided:

“The party of the first part hereby also agrees to furnish light, heat, water, local telephone and janitor services; also window space for a proper display of millinery, also all necessary wrapping paper and twine that may be required by the party of the second part in his said millinery business.”

So long as the plaintiff himself was in charge of his own business the parties seem to have been able to get along without friction; In June, 1918, however, plaintiff entered the military service of the United States and later was sent to Russia. In his absence he turned over the management of his store to other members of his family. He gave a power of attorney to his father, Solomon Goodman, but two or more of his brothers were active in the store. Very soon after his departure difficulties arose between his representative and the Diamonds, husband and wife, 'with reference to the window space to be used in the display of the Diamond merchandise. These disputes were very acrimonious, resulting upon at least one occasion in actual physical violence. The situation becoming intolerable, plaintiff, through his father, as attorney in fact, filed his bill of complaint praying for an injunction temporary and permanent against the Diamonds, husband and wife, restraining them from the use of profane and obscene language in the store either towards each other or toward the agents or employees of either the plaintiff or defendants, and further that the said Diamonds, husband and wife, be restrained from using physical violence toward any of the agents or employees of plaintiff or any of their customers. A further prayer for relief is that the lease agreement subsisting between the parties be canceled and held for naught. Upon the filing of his bill a preliminary injunction issued in accordance with its prayer restraining defendants from using physical violence or boisterous, profane or obscene language in the store. Defendants answered, admitting some of the averments of the bill and denying others, and, by way of cross-bill, averring that plaintiff had wrongfully interfered with the use by defendants of the proper space in one of the front windows of plaintiff’s store for the display of their merchandise. An injunction was sought on the cross-bill restraining plaintiff from preventing defendants’ use of one of the windows to the depth of the first panel for display. Upon the filing of the cross-bill an injunction was issued against plaintiff in accordance with the prayer thereof. The case went to trial upon the pleadings, testimony being taken in open court. We find a very considerable record made up principally of varying accounts of several quarrels and physical clashes between defendants and one or other of plaintiff’s agents. The court entered a decree making both preliminary injunctions permanent, determined that the defendants should have the use of a front portion of one window back to the first panel and regulated in his decree the time of payment by plaintiff to defendants of the money received for the sale cf goods and the time of payment by defendants to plaintiff of the rent reserved in the lease quoted. Plaintiff has appealed. His principal contention being that the relations between the parties by reason of the unwarranted acts of the defendants have been such as to destroy any possibility of friendly co-operation and to imperil or at least to injure his ■ business.

From a careful perusal of the record we gather that while defendants were not always afforded a position for display in the front of one or the other of the windows, yet that such display was customarily so placed. We are, therefore, of opinion that the court made a proper determination of that question in the interest of harmony, the quoted part of the agreement being silent as to exactly what portion of the window space might be used by defendants. Construed in its entirety we think that the lease agreement between the parties justifies the decree of the court below as to the time of payment of the money arising from daily sales, by plaintiff to defendants, and the time of the payment by defendants to plaintiff of the amount of rent reserved. This lease or privilege has now a little more than four months to run. It is asserted in briefs of counsel that since the decree of the court below the parties have been able to avoid' overt encounters and that the business has been prosperous. Enlightened self-interest should urge both parties to this litigation to assume an attitude of forbearance toward each other during the short time this contract still lives.

The decree of the court below is affirmed, but without costs.

Bird, C. J., and Sharpe, Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred.


text:
    UMPHREY v. AUYER.
    Usury — Bonus Included in Note — Principal and Agent.
    In proceedings to foreclose a real estate mortgage, where the notes given therewith, included a ten per cent, bonus in addition to the amount actually loaned, and also provided for seven per cent, interest, the highest legal rate, the same were usurious under 2 Comp. Laws 1915, § 5998, and the assignee thereof with notice was not entitled to receive any interest thereon, and it is unimportant whether the mortgagee or her husband, who acted as her agent in negotiating the loan, received the ten per cent, bonus.
    Appeal from Osceola; Cutler (Hal. L.), J.
    Submitted October 15, 1919.
    (Docket No. 48.)
    Decided December 22, 1919.
    Bill by William F. Umphrey against Fred Auyer for the foreclosure of a mortgage. From the decree rendered, plaintiff appeals.
    Affirmed.

      Charles A. Withey, for plaintiff.

      W. E. Brown, for defendant.
    Plaintiff, as assignee of Mrs. Margaret I. Postal, brought suit to foreclose a real estate mortgage held as collateral to a promissory note. At the time the loan was made the defendant executed two promissory notes to plaintiff’s assignor, one for $1,300 and the other for $59.42. It is claimed by defendant and admitted by plaintiff that included in these two notes is a 10 per cent, bonus or commission to James R. Postal, husband of plaintiff’s assignor, through whom the loan was negotiated. Defendant in his answer set up facts which he claimed constituted usury. The case was heard in open court, all the parties in interest being examined orally and a decree was entered providing for the foreclosure of said mortgage but holding that the transaction was a usurious one and limiting the amount of the decree to the principal sum unpaid. From this decree plaintiff appeals.
   Brooke, J.

{after stating the facts). There would appear to be no dispute between the parties upon the facts in this case except that the plaintiff claims that the 10 per cent, was exacted by James R. Postal as a commission to himself for negotiating the loan from his wife to the defendant, while defendant claims that the 10 per cent, was exacted by Postal as a bonus to his wife for making the loan. This conflict in the claims of the parties under our view of the case is unimportant. The statute, 2 Comp. Laws 1915, § 5998, provides:

“No bond, bill, note, contract or assurance, made or given for or upon a consideration or contract, whereby or whereon a greater rate of interest has been, directly or indirectly, reserved, taken, or received, than is allowed by law, shall be thereby rendered void; but in any action brought by any person on such usurious contract or assurance, except as is provided in ’the following section, if it shall appear that a greater rate of interest has been, directly or indirectly, reserved, taken or received, than is allowed by law, the defendant shall not be compelled to pay any interest thereon.”

The mortgage and.notes provided for 7 per cent, interest (the highest legal rate), and the notes included the 10 per cent, additional. There is no claim made that more than $1,231.29 was paid out by Mrs. Postal and it is admitted that she received notes aggregating $1,359.42 payable to herself. The words of the statute are plain:

“If it shall appear that a greater rate of interest has been reserved, taken or received, than is allowed by law, the defendant shall not be compelled to pay any interest thereon.”

Whether Mrs. Postal or her husband received the avails of the 10 per cent, commission or bonus would seem unimportant. It certainly was reserved to her in the written instruments constituting the evidence of the transaction. In the course of his evidence James R. Postal testified that in negotiating the deal with defendant he was acting as agent for his wife. It should perhaps be noted that the plaintiff does not claim to be a holder for value without notice but admits that he takes the security with such infirmities, if any, as would have attached thereto in the hands of the original holder.

The decree is affirmed.

Bird, C. J., and Sharpe, Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred.


text:
    GOODMAN v. DETROIT UNITED RAILWAY.
    Street Railways — Negligence — Contributory Negligence— Directed Verdict.
    In an action for the death of plaintiff’s decedent, who was struck and injured by defendant’s east-bound street car after alighting from and passing around the front of a west-bound car, where it appears that the physical facts were such that it would have been impossible for the xnotorman, no matter how malicious, careless, or incompetent he was, to have run down decedent if he had exercised due care in stepping upon the track, the trial judge properly directed a verdict for defendant..
    Error to Wayne; Collingwood (Charles B.), J., presiding.
    Submitted October 10,1919.
    (Docket No. 28.)
    Decided December 22, 1919.
    Case by David Goodman, administrator of the estate of Aaron Ostrow, deceased, against the Detroit United Railway for the alleged negligent killing of plaintiff’s decedent. Judgment for defendant on a directed verdict. Plaintiff brings error.

      On the question of contributory negligence of street car passenger who, upon alighting, passes around car and is struck by car on another track and is injured, see notes in 4 L. R. A. (N. S.) 729, and 21 L. R. A. (N. SA 887.

      Affirmed.

      Harry Cohen and Washington I. Robinson, for appellant.

      Corliss, Leete & Moody (A. B. Hall, of counsel), for appellee.
   Brooke, J.

Plaintiff as administrator brought suit against defendant to recover damages growing out of the alleged negligent killing of plaintiff’s decedent by defendant. The accident occurred between two and three o’clock in the afternoon near the intersection of Michigan avenue and Fifth street in the city of Detroit. It is undisputed that plaintiff’s decedent was struck by an east-bound car at a point a few feet east of the east curb line of Fifth street. It appears that the left-hand front portion of the car came in contact with plaintiff’s decedent, knocked him down, and that the rear trucks passed over his legs, so mutilating them that amputation of both was necessary.

Plaintiff’s first witness, one Hickens, testified:

“I was standing on the southeast corner of Fifth and Michigan. I just saw him as the car hit him. It was about half-past two or three o’clock, between that half hour. He seemed to be coming right toward me. * * He was east of the sidewalk possibly six or eight feet, towards the city, the walk that runs north and south on Fifth street. He was struck on the north side of the east-bound track the car was on. I just happened to turn around just as the car hit him. I seen him and the car both about the same time. * * * The car went possibly 18 to 20 feet after it ran over him. The rear of the car was about 20 feet from him.”

On cross-examination:

“The front of the car was running into him, the vestibule. It was the north side of the vestibule that struck him. I couldn’t tell whether it was the fender, or what, that hit him. I couldn’t see it only that long (snapping fingers). * * * I saw them both at the same time, just happened to turn around at that moment. He was not scissored in between these cars, the west-bound car had passed and gone. I am sure of that.”

Plaintiff’s next witness, McDonald, was located on the northwest corner of Fifth and Michigan. This witness testified that he saw plaintiff’s decedent get off the front end of a west-bound car which stopped on the east side of Fifth street. He later testified:

“The car stopped on the corner to let him off. The front end of the car was about in the middle of Fifth street. The fender came at the time he got off the car, I should judge, about three or four feet indhe middle of the street. * * * I don’t know where he went to after he got off; I didn’t notice which way he went. I saw the car hit him. I saw him get down from the car he had been riding upon. Before he was hit when he got down, he was going across the street. * .* * I saw him just before he was struck. The east-bound car running on the south side of the street, struck him. * * * On the side of the track going toward the river he was struck on, the south track, in pretty near the middle of the track I should judge. I just saw him get off the car. Didn’t pay much attention. * * * I saw the car that run over him before it struck him. It had been standing to avoid the other business, you know, the other trucks. It had been standing on the west side. I don’t know how long it had been standing there. When he got off from the car, that is, from the west-bound car, the east-bound car was then on the east (west) side of the street. * * * After the car ran over him it ran about 50 feet, 60 feet, somewhere around there. * * * When the east-bound car ran over him, the west-bound car was right there at the restaurant, the restaurant is located on the east side of the street, Fifth, right on the comer on the east side. The car, the one he got off, had stopped. After he got off the car went away. After he got off the ear he passed around in front of it and over toward the other car; I saw that car he got off move on toward the west; it might have went 50 or 60 feet before he was struck. It stopped again, I would say 50 or 60 feet, that would be across the street. * * * I don’t know which of the cars started up first. Both cars stopped at the same time, one on the east side and one on the west side. I did not notice the cars as they started up, I didn’t pay much attention to them after that.”

Plaintiffs third witness to the accident, one Crane, at the time of the accident was on the north side of Michigan avenue, about 100 feet west of Fifth street. He testified:

“I couldn’t see whether Mr. Ostrow got off the car there. He was standing close to the front door of the street car going west on Michigan avenue. The car stopped at the time that I say I saw him near the door on the east side of Fifth street, on Michigan avenue. As near as T could see from where I was sitting, the car stopped maybe ten or twelve feet or maybe fifteen from the curb line, that is, the curb line of Fifth street. I mean the vestibule. I did not see him get off the car, that I remember. When I saw him, I noticed a small package, just a small package; I think he had it in his hand, kind of up this way (indicating). I was paying no attention much. I saw him start to walk away from the car. He was going south then on Michigan avenue in front of the car. I saw him then pass in front of the car. I did not notice him after he passed the front of the west-bound car until I went to help pick him up.
“Q. Now, then, when he passed the front end of the west-bound car, whether or not you saw that car after that, the west-bound car?
“A. It was going on its route, going west.
“Q. It started then after he went over?
“A. Yes, sir. I didn’t notice the east-bound car. The east-bound car would be diagonal across south on Michigan avenue when he was standing at the door of the west-bound car, within four or five feet from the curb-crossing line. Nothing in particular called my special attention to the east-bound car, but I noticed it. I saw the east-bound car start up. I didn’t notice exactly where Mr. Ostrow was at the time when it started up. I did not see the east-bound car strike him; I couldn’t on account of the other car, from where I was sitting, I couldn’t see him.
“Q. Where did you last see him, Mr. Ostrow, before the east-bound car struck him?
“A. Oh, around the other — just around — oh, around the side of the car — the west-bound car.
“Q. That is, had he passed the west-bound car?
“A. Yes, sir, he was.
“Q. Then he was over in the devil’s strip then?
“A. The south track.
“Q. When you last saw him, he was over in the south track?
‘■‘A. I didn’t take notice whether he was right in the track or in that vacant stretch there. I mean the strip between the two tracks. The west-bound car was between me and Mr. Ostrow, and that obstructed my view. I saw the east-bound car roll him after it hit him; I didn’t see it strike him. I didn’t pay any attention whether the west-bound car passed me when I saw him rolling. I started running right to Mr. Ostrow where he got hit. He fell on the north side of the east-bound track, and the wheels ran over him right above the shoe tops of his feet. Then it rolled him. I noticed that it rolled him ten or twelve feet. I noticed the east-bound car stop, but I didn’t measure the distance; approximately 18 or 20 feet or maybe 30, for all I know, from where I was.”

On cross-examination:

“There was nothing that I know between the eastbound car and Mr. Ostrow. It was a bright afternoon between two and three o’clock. The west-bound car then obstructed my view. The west-bound car couldn’t start until he got out of its way. He would be over the north car tracks on Michigan avenue. I do not know what the overhang is of those cars. I do not know there is two feet overhang. In order for that car to proceed, he had to be beyond that overhang, so that would carry him into the devil’s strip at least the width of that overhang. The west-bound car started first. The east-bound car didn’t stand hardly a second or two still, when the west-bound car commenced moving. I suppose whatever time it stood it stood there while this car was moving. The _ westbound car couldn’t move until Mr. Ostrow got in the devil’s strip or else it would have run over him. So he was in the devil’s strip and the east-bound car was still standing. The west-bound car proceeded and I lost sight of him. The front and rear trucks went over him. I didn’t see which part of the car hit him.”

On redirect-examination:

“Q. The east-bound car was standing still when he passed the west-bound car, Mr. Crane?
“A. Yes, sir.
“Q. And he had to get out of the way of the westbound car?
“A. Yes, sir.”

And on recross-examination:

“This man was not scissored; if he was scissored, he wouldn’t have rolled along the street. The westbound car had gone on.”

The foregoing constitutes all of plaintiff’s testimony bearing upon the conduct of plaintiff’s decedent up to the moment of the accident. The testimony of the witness Hickens has no bearing upon the question involved as he did not see plaintiff’s decedent until the very moment he was struck by the car. The evidence of the witness McDonald is very confusing. He first places the west-bound car from which plaintiff’s decedent alighted on the east side' of Fifth street, then places the front end of said car in the middle of Fifth street, and a moment later he places the fender about three or four feet in the middle of the street. He testified that the east-bound car had been standing on the west side of Fifth street. Again, he testified that:

“When the east-bound car ran over plaintiff’s decedent, the west-bound car was right there at the restaurant on the east side of Fifth street.”

Later his testimony is that after plaintiff’s decedent walked around in front of the car the west-bound car started forward, going 50 or 60 feet, and stopped. It is somewhat difficult from a perusal of this witness’ testimony to get an intelligent understanding of the position of the two cars at the time that plaintiff’s decedent alighted from the west-bound car, walked around in front of it and attempted to cross the street. From the evidence of the witness Crane, however, it would seem clear, that at the time the plaintiff’s decedent stepped off the front end of the west-bound car, passed in front of it and attempted to cross the street, the east-bound car had stopped on the west side of Fifth street, upwards of 50 feet away; that immediately thereafter, the west-bound car started up. To have done so without colliding with plaintiff’s decedent it is plain he must have been at least as far south as the middle of the strip between the two tracks. This strip is about 5 feet wide. One-half of that distance, 2% feet, plus the width of the south track 4 feet 8% inches, plus 1% feet, the overhang of the east-bound car, constitutes a total distance of 8 feet and 8 inches which plaintiff’s decedent had to travel to a place of safety. Assuming as contended by plaintiff’s counsel that after the passage of the west-bound car plaintiff could not step back on the west-bound track by reason of the oncoming vehicular traffic, there yet remains no explanation in the testimony offered on behalf of plaintiff why decedent did not take three or four steps to the south which would have placed him beyond reach of the east-bound car. Considering this situation upon a motion for a directed verdict the learned circuit judge said:

“Now, gentlemen, if I were to charge you to find a verdict in this case, I would have to charge you that the motorman started that car fifty feet away and wilfully and maliciously ran this man down when he himself with three or four steps could have placed himself in a position of safety. * * *
“Now, gentlemen, I am not going to leave you to guess on this matter, because you cannot guess, and I am going to take the position that the physical facts testified to by the witnesses for the plaintiff are such that it would have been impossible for the motorman, no matter how malicious he was or how careless he was or how incompetent he was, to have run this man down if the man had exercised due care in stepping on the track”

—and directed a verdict for the defendant. As all error is assigned, or, in effect, based upon the alleged erroneous conclusion of the trial judge in directing a verdict, it is, we think, sufficient to say that, assuming the truth of the evidence introduced on behalf of the plaintiff and giving to such evidence its greatest probative force, the course taken by the trial judge was proper.

The judgment is affirmed.

Bird, C. J., and Sharpe, Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred.


text:
    JUDSON v. PRATT.
    1. Limitation op Actions — Indorsements on Notes — ADMISSIBILITY.
    3 Comp. Laws 1915, § 12335, does not make indorsements of payments on notes incompetent as evidence, but declares them to be insufficient in themselves to take the case out of the operation of the statute of limitations.
    2. Same — Appeal and Error — Order oe Proof.
    In an action on certain, promissory notes claimed by defendant to be barred by the statute of limitations, defendant’s objection to the introduction of the notes with indorsements of payments thereon will not he considered by the appellate court, where, after the objection, other evidence was introduced rendering them admissible; the objection going merely to the order of proof.
    3. Same — Indorsements on Notes — Evidence—Admissibility.
    In such action, certain exhibits, properly identified, tending to show that defendant had sold certain produce to the payee and received payment therefor partly by indorsements on the notes, and partly by check, which was dated the same day as the indorsements, held, admissible.
    4. Appeal and Error — Weight of Evidence for Jury.
    The weight and sufficiency of the evidence, held, peculiarly questions of fact for the jury.
    Error to Genesee; Black (Edward D.), J.
    Submitted October 23, 1919.
    (Docket No. 34.)
    Decided December 22, 1919.
    Assumpsit by Edna M. Judson, administratrix of the estate of Fred Judson, deceased, against William Pratt upon certain promissory notes. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      James H. McFarlan, (Farley & Selby, of counsel), for appellant.

      Carton, Roberts & Stewart, for appellee.
    Plaintiff, as administratrix of her husband’s estate, brought suit against defendant upon three promissory notes, which, with their indorsements, were as follows:
    Exhibit 1:
    “$40.00. Linden, July 24th, 1909.
    “Sixty days after date I promise to pay to Fredi Judson or order forty dollars for value received, with use at 6%.
    [Signed] “William Pratt.”
    Indorsed on the back of Exhibit 1 is the following:
    “Sept. 23, 1913. Received fifty dollars on the within for interest.”

      Exhibit 2:
    “$600.00. Linden, October 28, 1909.
    “On or before six months after date I promise to pay to Fred Judson or order, six hundred dollars, with use at 6 per cent.
    [Signed] “William Pratt.”
    On the back of Exhibit 2 is indorsed the following:
    “Sept. 23, 1913. Received $26.91 on the within to apply on interest.”
    Exhibit 3:
    “$75.00. November 8, 1909.
    “On or before thirty days after date I promise to pay to Fred Judson or order, seventy-five dollars, use 6 per cent.
    [Signed] “WILLIAM PRATT.”
    On the back of Exhibit 3 is indorsed the following:
    “Sept. 23, 1913. Received twenty-five dollars on the within for interest.”
    The plea was the general issue with notice of the statute of limitations and a further notice of set-off, accompanied by a bill of particulars of said alleged set-off. Upon the trial defendant withdrew his plea of set-off and the case went to hearing upon the sole defense that recovery upon the notes in suit was barred by the statute of limitations. The notes bore date in July, October and November, 1909, and suit was not begun until November 6, 1917, so that, unless the indorsements upon the back of the notes bearing date September 23, 1913, evidenced voluntary payments thereon made by the defendant to the payee in the notes, they were clearly barred by the statute. At the beginning of the trial the notes in question were, over the objection of defendant’s counsel, admitted in evidence, and, likewise, over objection, the evidence of George H. Judson, a brother and one-time partner of plaintiff’s decedent, to the effect that the indorsements upon said notes were in the handwriting of plaintiff’s decedent, was received. Plaintiff’s counsel were thereafter permitted to show by the witness, George H. Judson, from the car book record kept by Judson Bros., the following purchases from and deliveries by defendant Pratt:
    “April 25, 1913...... 20,840 lbs. straw
    June 21st, 1913..... 17,490 lbs. straw
    September, 1913 .. .17,870 lbs. hay
    September 13, 1913 .21,330 lbs. hay”
    Plaintiff’s counsel also were permitted over objection to introduce Exhibits 4 and 5 as follows:
    “Exhibit 4.
    Gaines Judson Brothers’ Elevators Linden
    Hay, Grain, Beans, Wool, Farm Machinery,
    Cement, Lime, etc.
    Union Tel. No. 24.
    Linden, Michigan.

      Exhibit 5.
    “Holly, Mich., Sept. 23, 1913. No.....
    “First State & Savings Bank, 74-391.
    “Pay to Wm. Pratt or bearer, $179.84, one hundred seventy-nine 84/100 dollars.
    “Judson Brothers.”
    (Bank Stamp — Paid, Sept. 26, 1913.)
    Touching Exhibit 4, George H. Judson testified as follows:

      “Q. What is that, Mr. Judson, Exhibit 4?

      “A. Why, it is a settlement between Mr. Pratt- and Judson Brothers, for a certain amount of hay and straw bought.

      “Q. And, will you state what its date is?

      “A. September 23, 1913. * * *

      “Q. Mr. Judson, were you interested in the matter of that computation yourself ?

      “A. Yes, sir; I was.

      “Q. Now, what is that Exhibit 4?

      “A. It is a settlement of hay and straw with Mr. Pratt.

      “Q. How much money was figured in that computation that was due for hay and straw, how many dollars and how many cents?

      “A. $281.75.

      “Q. I now show you Exhibits 1, 2 and 3, and ask you to testify what the date of the indorsements are?

      “A. The date of each indorsement is September 23, 1913.

      “Q. Now, does it show the fact of any check being given or anything of that kind, or any amount of money paid to anybody?
    - “A. It does.

      “Q. What does it show about that?

      “Mr. McFarlan: Your honor, I object to the form of the question. I would like to have the witness read what that paper contains and not what the inference from it may be.

      “Q. Read that paper, Mr. Judson.

      “A. Well, in the first place, there seems to be 39,200 pounds of hay.

      “Mr. McFarlan: Does it say ‘hay?’

      “A. No, it does not say ‘hay.’

      “Q. Well, just read what is on there, George.

      “A. 21,330 pounds.

      “Q. Yes, sir.

      “Q. 17,870; 39,200. Those pounds are multiplied by nine, and the result is divided by two. That gives—

      “Q. What result?

      “A. The result is $176.40.

      “Q. What are the rows of figures?

      “A. On the right hand side of the paper, 17,490 pounds of straw; 20,840 pounds. Add it together makes it 38,330. That same is multiplied by 550 and the result is divided by two, giving $105.35.

      “Q. $135.00, is it?

      “A. 135 — five.

      “Q. Is it pointed off in decimals?

      “A. Yes, sir; it is pointed off.

      “Q. What decimal is where?

      “A. Between the thirty-five and the hundred five.

      “Q. Is there any computation or anything occurring on that paper where $178.00 and $105.00 is added together or anything of the kind?

      “A. There is.

      “Q. What does it say about that?

      “A. $176.40 and $105.35 are added together, and there the dollar sign is. used.

      “Q. How much?

      “A. $281.75.

      “Q. Is there anything else on the paper?

      “A. Over at the side, there is subtracted $179.84. “Q. $178.94?

      “A. Yes, sir. .

      “Q. Is there any further computation thereon?

      “A. That leaves $101.91.

      “Q. Is that indicated or is it identified by any word? “A. Yes, sir.

      “Q. What does it say?

      "A. The word ‘indorsement.

      “Q. Where is the word ‘indorsement written?
    “A. At the left of the sum.

      “Q. And that sum is what?

      “A. $101.00 — $101.00.

      “Mr. Selby: Now, so that the record may show, your honor, we having made objection all the way-through, I now move to strike the exhibit and all evideuce given in regard to it from the record as incompetent and immaterial.

      “The Court: No, it may stand.

      “Q. I have shown counsel Exhibit 5. I now offer Exhibit 5 in evidence.
    “Exhibit 5.
    “Holly, Michigan, September 23, 1913. The First State Savings Bank, pay to William Pratt, or bearer, $179.84,” in figures; “one hundred seventy-nine and 84/100 dollars,” in writing. Signed, “Judson Brothers.” And, indorsed on the back is “William Pratt.” * * *

      “Q. Now, Mr. Judson, taking into consideration the amount of the indorsement, made on Exhibits 1 and 2, and the amount of the check, marked Exhibit 5, and I ask you whether or not those indorsements total, together with the check in the aggregate, indicate such a sum as was due on Exhibit 4? * * *
    “A. I say that the check, for $178.84, was given to Pratt and cashed by Pratt.”
    And on cross-examination:

      “A. I know that hay was bought of William Pratt and delivered by William Pratt’s teams.

      “Q. You don’t know, however, what farm it came from?

      “A. No, I could not tell you.

      “Q. Could not tell anything about that?
    “A. I would not tell you that, if I did not know.

      “Q. That is all. * * *

      “Q. That is all, just a moment, Mr. Judson. You do not know, of your own knowledge, of Mr. Pratt consenting to any indorsements?

      “A. No, sir; I do not.”
    Plaintiff, administratrix, was permitted to testify that she found Exhibit 4 together with the notes in the safe where she had put it in the lifetime of her husband.
    Defendant offered no testimony. Each party moved for a directed verdict. Both motions were overruled, the court submitting the case to the jury under a charge in the course of which he said:

      “And you may take the notes and the check, if you have not done so, and compare them, as to whether or not the same naan received the money on the check that signed the note, which would be evidence to you of whether or not Mr. Pratt received the $179.84, which is borne out a's the payment in the check. And if Mr. Pratt received the $179.84, whether Mr. Pratt knew — was present and knew that the balance of the amount of that hay and straw, to wit: $101.91, was credited to his account and indorsed upon these three notes.
    “And I charge you, if you find that he was present and knew that that was being credited, that he^yrgs being credited with $101.91 upon his notes, receiving the balance of $179.84 as payment in full for his hay and straw, then you may take that into consideration, as to whether or not Mr. Pratt knew at that time that the indorsements were made upon the notes.”
    The jury returned a verdict in favor of the plaintiff.
   Brooke, J.

(after stating the facts). Section 12335, 3 Comp. Laws 1915, provides:

“Nothing contained herein shall alter, take away or lessen the effect of a voluntary payment of any principal or interest, made by any person; but no indorsement or memorandum of any such payment written or made upon any promissory note, bill of exchange, or other writing by or on behalf of the party to whom such payment shall be made, or purport to be made, shall be deemed sufficient proof of the payment, so as to take the case out of the operation of the provisions of this chapter.”

The first assignments of error argued by defendant are those relating to the admission of the notes in question in evidence. The case of Rogers v. Anderson, 40 Mich. 290, is cited, where it is said:

“Unexplained indorsements of payments could not be received as evidence, so as to take the case out of the operation of the statute.”

Counsel for defendant emphasize the words: “Could not be received as evidence.” These words should be read with the context, and, so read, the meaning simply was that the statute itself declares that the indorsements themselves are not sufficient proof of payment so as to take the case out of the operation of the provisions of the statute. The statute does not make the indorsements incompetent as evidence but declares them to be insufficient. In any event the objection goes merely to the order of the proof, as after the admission of other evidence in the case the notes with their indorsements would have been admissible.

A second group of assignments of error relative to Exhibits 4 and 5 are argued and it is asserted that all testimony touching the said exhibits should have been excluded, counsel saying:

“Without any proof of Pratt’s presence; without proof of any knowledge on Pratt’s part; without any proof of Pratt’s assent, the plaintiff, against defendant’s objection, was allowed to call this proof of payment sufficient to take the case out of the statute.”

We are of opinion that Exhibits 4 and 5 were admissible in evidence; that they were properly identified by the witness, George H. Judson, and that his testimony touching the same was competent. Its weight was of course for the jury. Whether the exhibits in question bearing date the same day as the indorsements upon the notes, taken in connection with the defendant’s indorsement of the check, Exhibit 5, and the payment of said check three days later, were sufficient evidence that defendant had voluntarily paid plaintiff’s decedent both the amount of the check and the amount shown by the indorsements on the notes, by the delivery of this hay and straw, was peculiarly a question of fact' for the determination of the jury.

Complaint is made of some portions of the charge of the court. Taken as a whole, and, particularly, in view of the part thereof quoted, we believe that the jury were not misled as to the controlling question of fact to be determined by them.

The judgment is affirmed.

Bird, C. J., and Sharpe, Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred.


author: Steere, J.

text:
    LIVERNASH v. DELORME.
    1. Evidence — Pedigree—Baptismal Certificate — Admissibility.
    In. ejectment, where the question of defendant’s pedigree was involved, a certificate of baptism issued by a church according to its custom and kept by the alleged parents in the family bible until their death, is admissible, where verified by an eyewitness to the baptism, and its weight is for the jury, although it is not a church record, nor, in a legal sense, an ancient document implying an age of over 30 years.
    2. Same — Statements of Parents.
    Proof of statements and admissions of the alleged parents that defendant was their child, held, admissible.
    3. Same — Positive Testimony — Secondary Evidence.
    Testimony of a witness that she knew that the alleged mother of defendant was not her mother, where full of inconsistencies and contradicted by other witnesses, held, not such positive testimony as to exclude secondary evidence, and its weight was properly for the jury.
    4. Same — Statements of Mother at Time of Birth of Chud.
    Statements of the alleged mother as to the birth of defendant, made about the time she was born, the mother now being dead, held, admissible.

      5. Parent and Child — Living Together — Prima Facie Evidence.
    The existence of the relation of parent and child is a question of fact, and is established prima facie where it is shown that the parties lived together, and recognized by their acts the existence of that relation.
    6. Witnesses — Cross-Examination — Reputation in Community as to Being Daughter of Alleged Parents.
    Where a witness had testified that defendant grew up in a certain community and was always known by the name of her alleged parents, it was not error to allow, on cross-examination, questions as to whether she was known as their daughter, and as to whether they held her out as their daughter.
    7. Trial — Argument of Counsel — Curing Error.
    In ejectment, where the question of defendant’s pedigree was involved, argument by her counsel that plaintiff was seeking to “bastardize this girl,” and that her good name was involved, held, not reversible error, where the trial court sustained plaintiff’s objections, and stated that defendant’s legitimacy was not involved, but only the question as to whether the alleged father and mother were her parents.
    Error to Gogebic; Barton (Joseph), J., presiding.
    Submitted October 24, 1919.
    (Docket No. 12.)
    Decided December 22, 1919.
    Ejectment by George H. Livemash against Leo W. DeLorme and another. Judgment for defendants. Plaintiff brings error.
    Affirmed.

      Belmont Waples (Harold J. Waples, of counsel), for appellant.

      James A. O’Neill, for appellees.
   Steere, J.

This is an action of ejectment tried in the circuit court of Gogebic county, involving possession of and title to a property in the city of Ironwood described as the southerly 90 feet of lot 12 in block 4 of said city, according to the recorded plat thereof, together with the appurtenances thereon. The trial resulted in a verdict and judgment for defendants and plaintiff brings the case to this court for review on various assignments of error. Both parties claim title through one Harvey W. Darrow, deceased, who died a widower and intestate on August 2, 1914, in his home on the property in dispute where he was residing with Ethel DeLorme, then, and always before her marriage to defendant Leo W. DeLorme, known as Ethel Darrow and recognized by deceased as his daughter. Plaintiff claims title by mesne conveyances under a deed from George W. Darrow, a brother of deceased, who resided at Necedah, Wisconsin, and held a trust deed of the property to him from four other brothers with their wives and three sisters of deceased, all adults residing in various other States. Defendant Ethel Darrow-DeLorme claims title as the daughter and sole heir at law of deceased. The case turns upon the question of whether she is his daughter, which plaintiff denies.

Varied only in minor details the introductory and practically undisputed facts are in outline as follows: Harvey W. Darrow, deceased, was for many years a merchant in the village of Hurley, Wisconsin, just across the river and State line from the city of Ironwood, and in 1892 was married to Elizabeth Darrow, sometimes called Eliza. They belonged to and were regular attendants at the Methodist church in that village for many years. Before March 1, 1895, Mrs. Darrow left Hurley and was absent from home for some weeks, just how long is not clearly shown. After her return they had defendant Ethel in their home, then a very small infant, whom they apparently recognized as their offspring, whose age is variously stated by the living witnesses who first saw her there as from a few days to a few weeks. She was presented for baptism in the Methodist church at Hurley on. March 1, 1895, and baptized as the infant daughter of Harvey W. and Elizabeth Darrow. From that time until the death of Elizabeth Darrow she lived in the home of Harvey and Elizabeth Darrow, was cared for, known, recognized, educated and introduced to others as their daughter and always so known and understood in the community where she grew up and in the schools she attended. After Elizabeth’s death she resided with Harvey Darrow as his daughter in their home until* his death. After the death of Harvey, proceedings were instituted to probate his estate in the probate court of Gogebic county on petition of Alfred H. Darrow, a brother, in which the claimed parentage of Ethel DeLorme was denied and an order entered by the.court determining the heirs of said deceased to be his eight brothers and sisters. Defendant Ethel kept possession of and continued to reside in the home in which Harvey W. Darrow died, claiming it as his daughter and heir until these proceedings! were brought.

The issue of her parentage was submitted to the jury by the court, and under plain instruction that the narrow issue of fact for them was whether or not Ethel DeLorme was the born child of Harvey W. Darrow, advising them that the record evidence showed, by the probate court proceedings and mesne conveyances, the legal title stood in plaintiff; and that under their special notice of defense it was incumbent upon defendants to show by a preponderance of evidence that Ethel DeLorme was “the own daughter of Harvey W. and Elizabeth Darrow.” That sole issue was submitted to the jury by a special question in writing, to which the jury answered over their signatures, “Yes.”

Plaintiff’s counsel by motion and request upon the trial, followed by motion for a new trial, with properly preserved exceptions, urged a directed verdict in his favor on the ground that “hearsay statements in favor of the defendants could not prevail against positive testimony in his (plaintiff’s) behalf that Mrs. DeLorme was not the daughter of Mr. and Mrs. Harvey W. Darrow.” Apparently the only fault found with the charge is refusal of the court to direct a verdict as requested. That proposition is closely related to plaintiff’s various assignments of error on admission of testimony against objection which, it may be conceded, if inadmissible and rejected, would leave defendants with scant proof. The objections are directed against testimony to statements, representations or holding out by Harvey W. Darrow and wife that they were the parents of the girl, Ethel Darrow, all evidence of general reputation and understanding in the community to that effect, the admission of her baptismal record, letters from Harvey Darrow to her with the addresses, descriptive beginnings, conclusions, etc., a letter from Ida Myers, a living sister of Darrow, addressing her as “niece,” and other somewhat similar items of claimed hearsay evidence.

Of the letter from Ida Myers, we think it sufficient to state that she was a party in interest, had joined with her brothers and sisters in the trust deed to George W. Darrow who apparently deeded to plaintiff for the purpose of this litigation, which was commenced shortly thereafter, and Alfred Darrow, on whose petition his brothers and sisters were determined the heirs of Harvey Darrow in the probate court, testified that plaintiff paid no consideration for the deed and was not to pay anything until the case was settled and “if the title is wrong wouldn’t be expected to take it.” This witness also testified that it was “a general understanding” in the Darrow family that the girl Ethel was not the daughter of Harvey, while this family letter written ante litem motam by a sister now interested to the contrary shows she then designated deceased and Ethel as “Dear brother and niece,” concluding, “Lovingly sister and aunt Ida.”

The baptismal certificate objected to reads as follows:

“This certifies that Ethel Eliza, infant daughter of H. W. and Eliza Darrow, born in Hurley on the first day of March, 1895, having been presented for Holy Baptism and it having been solemnly promised that she shall be taught the nature and end of this Holy Sacrament, and all other things which a Christian ought to know and believe in order to lead a virtuous and holy life, was this day baptized by me in the name of the FATHER, and of the SON and of the HOLY GHOST according to the Discipline and Usages of the Methodist Episcopal Church.
(Signed) “E. T. Briggs, Pastor M. E. Church.
“1895.”

This was produced and identified by Mrs. DeLorme as her baptismal certificate which had always been kept in the family bible of her claimed parents ever since she could remember and was there at the time of the death of Harvey W. Darrow. It was shown that she was raised by them in the Methodist faith and was a member of that church, that it was the custom for clergymen of that church to issue certificates of baptism. Mrs. McCamus, who had lived long in Hurley and knew Mr. and Mrs. Harvey W. Darrow for about 24 years, testified that she belonged to and attended the Methodist church there, as they did also, that she had known Ethel since she was a baby, was present in the Methodist church when she was baptized by Mr. Briggs, who was its minister at that time, that the baby so baptized continued to live in the household of Mr. and Mrs. Harvey W. Darrow as their child and was called Ethel Darrow, from that time until Mrs. Darrow died, and with Mr. Darrow until he died; that one pleasant morning while Ethel was yet a baby, witness was passing the Darrow home and saw Mrs. Darrow out in the yard with her. They talked about the baby with some pleasantries in regard to her and witness remarked that she resembled her father, to which Mrs. Darrow replied: “Why shouldn’t she look like her father? She is Harvey Darrow’s own child,” and in their following conversation told how low she was at the time Ethel was b.orn, saying, “I like to have died. They despaired of my life”; that witness had been a nurse and on later occasions was called to Mrs. Darrow’s home to care for her, at which times Mrs. Darrow more than once made mention of the child’s birth.

As argued by plaintiff, it may be conceded that this certificate of baptism is not shown to be a church record nor in a legal sense an ancient document, which implies an age of over 30 years. Neither would it in any event be conclusive evidence standing alone of parentage or date of birth (Durfee v. Abbott, 61 Mich. 471), but we think the undisputed circumstantial evidence bearing upon its authenticity rendered it admissible for the jury to consider in connection with all other testimony in the case and give such weight as they deemed it entitled to. It was circumstantially verified by the direct testimony of an eyewitness that defendant Ethel was actually baptized when an infant about the time it indicates, in the Methodist church at Hurley by Mr. Briggs, the then pastor; that for many years, and always since Mrs. DeLorme could remember, it had been kept by Harvey W. Darrow and wife in the family bible at their home where it remained until after both were deceased, by permissible inference preserved in the family bible as a family record and recognition by them of its verity in a sense and to a degree with like solemn import as though the facts it stated had been recorded in that sacred book —of all which the weight and significance were for the jury.

Counsel on the respective sides are apparently not in disagreement as to the rule recognizing the admissibility of hearsay evidence in issues of this nature, based on the difficulties of establishing descent by direct testimony of eyewitnesses to marriage and birth, according to the strict rules of primary evidence. For which reason in cases involving pedigree recourse has long been permitted “to a secondary sort of evidence; the best the nature of the subject will admit; establishing the descent from the only sources that can be had.” Vowles v. Young, 13 Ves. 140. But it is contended for the plaintiff that all proof of statements and admissions of Harvey W. Darrow and his wife in whatever-form, orally or by letters, was hearsay .evidence and incompetent, because “positive testimony to the contrary of a living witness who knows the facts” was introduced by plaintiff on rebuttal to the defense. That witness as pointed out in plaintiff’s brief is Mrs. Mary Langford, who, it is stated, “testified that she knew Mrs. Eliza Darrow well just before Ethel first appeared and that Mrs. Eliza Darrow was not Ethel’s mother.” An examination of her testimony shows that she had no first knowledge of where and when Ethel was born and made her positive assertions largely on inferences of facts in dispute and hearsay. She had not lived in or near Hurley for over 16 years before she was a witness, but when residing there prior to that time knew Mr. and Mrs. Harvey W. Darrow. She was then a seamstress, and testified that on April 10, 1895, she was sent for by Mrs. Darrow to do some sewing for her when she for the first time saw Ethel, then an infant whom she judged about four weeks old, lying in a rocking chair; that a nurse was there whose name she did not know but who only stayed between trains; that witness understood from what the nurse said the baby was born March 10 and came from a home in Chicago. She did not remember ever having talked with Mrs. Darrow about the parentage of the child, but knew Mrs. Darrow was not its mother, that she did not know of her bearing a child within six months before that time, and thought she would have known of it if such were the case. On cross-examination she testified:

“This child was brought to Hurley by a nurse; that is my understanding. * * * I wasn’t there when the child was brought. I don’t know whether or not Mrs. Darrow came back with the child. * * * I don’t know personally who brought the child there, or, of my own knowledge, when she was brought there or who the mother of the child is. I know she was raised as Ethel Darrow and known in the community as, Ethel Darrow and baptized in the Methodist church at’ Hurley. * * * I didn’t charge my mind with any of the facts connected with the parentage of this child.”

Having stated she didn’t know whether or not Mrs. Darrow came back with the child, she later asserted she knew she was not absent from Hurley at any time during the three months prior to April 10 and was basing her answers on the theory that she was not absent during that time. She did not remember the day of the week April 10 came on, but remembered that date because it was shortly before her marriage, which took place June 19. Asked how many times she saw Mrs. Darrow in the three months before April 10 she answered, “once a week in church,” and later answered she did not remember if she saw her the Sunday before that date, or the second Sunday before then, or the third, and afterwards said, “I know that I saw her the week before I saw this child, that Sunday at church.” In view of the many inconsistencies in her own testimony and direct contradiction of facts testified to by other witnesses it was manifestly for the jury to pass upon what credence should be given to the assertions of this witness.

The record also contains substantive testimony not bare hearsay which if believed tends to show Mrs. Darrow was the mother of this, child. Mrs. Sullivan, who knew Mrs. Darrow well from the time she was married until her death, and Ethel since she was a little baby, stated in reference to Ethel’s first appearance in Hurley that Mrs. Darrow, who was a large woman, was “unusually large” before she went away about the first of February, was absent several weeks and “came back with her baby,” at which time “she was much smaller,” that in conversations upon the subject Mrs. Darrow told her she was never so sick as when Ethel was born and nearly died.

In the recent case of Kotzke v. Kotzke’s Estate, 205 Mich. 184, it is said:

“The question of pedigree being involved and plaintiff’s mother being deceased, we are impressed that her statements made about the time the child was born and when there was no probability of untruthfulness on her part and nothing to prompt her to conceal the facts from the members of her own family, were not objectionable within the hearsay rule but were admissible.”

It stands practically undisputed that Ethel lived from early infancy in the Darrow home with Harvey W. Darrow and wife in the relation of parents and child, treated and recognized by them in word and act as their daughter. In 29 Cyc. p. 1583, the relation of parent and child in general is thus stated:

“The term ‘parent and child’ is used to indicate the relation existing between husband and wife, or either of them, on the one hand, and their legitimate offspring on the other. The existence of the relation is a question of fact, and is established prima facie where it is shown that the parties lived together, and recognized by their acts the existence of that relation.”

Upon the vital point plaintiff also produced admissible hearsay testimony to the contrary of that produced by the defendants, and, as we view it, a clear issue of fact was made for the jury. As this court is only concerned with the admissibility and sufficiency of defendants’ testimony to raise an issue for the jury it is unnecessary to review that of plaintiff or consider the claims of the respective sides as to the convincing qualities of their testimony and weakness of that opposed.

Counsel cite but two instances in the record where objection was made to admitted testimony claimed objectionable on the ground its purport was to prove general reputation in the community. Francis Jewell, a witness for plaintiff, testified on cross-examination without objection to several apparently undisputed facts and said: “This baby'grew up to be a young woman in Hurley and was always known to the community as Ethel Darrow. Q. As the daughter of Mr. and Mrs. Darrow?” to which plaintiff’s counsel objected on the ground “that rumor and reputation are immaterial in cases of this sort and do not tend to establish pedigree.” The objection being overruled the witness answered “Always.” In the other instance a witness of plaintiff was asked on cross-examination, “Q. And she was known and held out by the parents as Ethel Darrow, their daughter, during all that time?” To which objection was interposed on the ground that “a holding out doesn’t tend to establish pedigree.” The objection was overruled and the witness answered:

“Yes, Mr. and Mrs. Harvey Darrow were regular attendants at the Methodist church in Hurley both before and after this baby came and they took her to that church always and she grew up in the Methodist faith.”

While these generalizing questions are perhaps near the border line, in view of the connection in which they were asked on cross-examination, and other volunteered testimony of similar import not objected to or moved stricken out, we find no reversible error in the ruling.

The remaining argued assignment of error is directed against two claimed prejudicial comments of defendants’ counsel, who on opening the case to the jury stated defendants proposed to show no one ever questioned the legitimacy or parentage of the girl until hér parents were dead and left her property which the brothers and sisters, particularly Alfred Darrow, wanted, and to that end he was seeking to “bastardize this girl,” — to which plaintiff’s counsel objected, saying there was no claim “Mrs. DeLorme is illegitimate or a bastard.” The court sustained the objection, with the further comment that counsel’s opening statement must not be argumentative. In summing up the case to the jury defendants’ counsel while arguing its importance to Mrs. DeLorme said, “but it involves all that is dear to this girl in the world. Irrespective of what these gentlemen on the other side say, it involves the good name of this woman,' which is a more priceless heritage than any property which Harvey W. Darrow left,” and counsel for plaintiff then objected to that line of argument, saying that there was no claim on the part of plaintiff “which in any way involves the legitimacy of Mrs. DeLorme.” The objection was sustained, the court saying, — apparently to or at least in the presence of the jury,—

“Mr._----...........is misstating the position of the plaintiff in this case in arguing that the legitimacy of the child is involved. That is not true. The question is whether Harvey W. Darrow and his wife were the father and mother of this girl.”

Counsel for defendants, argues in his brief with some force that not only did the reprimand, or emphatic contradiction of the court, cure any possible prejudice which might otherwise arise from what was said, but the comment, so far as made and intended, was permissible argument in view of the testimony which plaintiff had introduced and claim made implying that Mrs. DeLorme when an infant was a waif or foundling taken out of some home in Chicago. Of this objection the trial court said in denying plaintiff’s motion for a new trial:

“The 10th and 11th reasons relate to the alleged improper conduct of counsel for defendants in his opening statement, and argument to the jury. On both occasions complained of the court sustained the objection of plaintiff’s counsel, and in so doing took occasion to correct any error that might have resulted. Plaintiff’s counsel presented no requests to charge relating to this matter, and it must be assumed that they were content with the action taken by the court.”

Finding no prejudicial error demanding reversal, the judgment is affirmed.

Bird, C. J., and Sharpe, Moore, Fellows, Stone, and Kuhn, JJ., concurred. Brooke, J., did not sit.