author: A. C. Miller, J.

text:
    PEOPLE v. BATTEN. PEOPLE v. LAZAROS.
    1. Indictment and Information — Duplicity.
    An information is not defective for duplieity if distinct offenses are included within the single offense charged.
    2. False Pretenses — Indictment and Information- — Duplicity.
    A count of an information charging obtaining money by false pretenses whieh alleged essentially that the defendants, with intent to defraud, did designedly and falsely represent that certain contracts were bona fide, whereas they were false and worthless, and that the victim, believing the representations, was induced to deliver money, held, to plead properly the elements of intent, misrepresentation, and accomplishment, as against objection that information was duplicitous because charging more than one crime in one count (CL 1948, § 750-.218).
    3. Indictment and Information — Amendment Before Trial.
    The court has discretion to permit amendment of an information before trial and as long as the amendment is of form, and not of substance, there is no requirement of rearraignment or further examination (CL 1948, § 767.76).
    References for Points in Headnotes
    [1] 27 Am Jur, Indictments and Informations § 124 et seq.

    [2] 27 Am Jur, Indictments and Informations § 125.
    [3] 27 Am Jur, Indictments and Informations §§ 117, 118.
    [4] 21 Am Jur 2d, Criminal Law § 455.
    [5] 27 Am Jur, Indictments and Informations § 187.
    [6] 20 Am Jur 2d, Courts §§ 67, 70.
    [7] 21 Am Jur 2d, Criminal Law § 450 et seq.

    [8] 21 Am Jur 2d, Criminal Law § 288 et seq.

    [9-11,17] 16 Am Jur 2d, Conspiracy §§ 38-40.
    [12] 53 Am Jur, Trial § 618.
    [13] 31 Am Jur 2d, Expert and Opinion Evidence § 136 et seq.

    [14] 31 Am Jur 2d, Expert and Opinion Evidence § 3.
    [15,16] 21 Am Jur 2d, Criminal Law § 343.
    [18] 32 Am Jur 2d, False Pretenses § 49 et seq.

      4. Criminal Law — Amendment of Information — -Remand for Re-arraignment.
    Failure to remand defendants for further examination or to rearraign them after an amendment of information prior to trial is not prejudicial if the amendment is one of form rather than of substance.
    5. Indictment and Information — Appeal and Error — Waiver.
    Objection to form of an amended information, held, waived, where made for the first time in reply brief on appeal, there being no request for continuance when the amendment was filed nor any objection made even as late as when the motion for new trial was made.
    6. Courts — Judgments.
    Courts speak through their orders and judgments, not through their opinions.
    7. Criminal Law — Binding Over — Remarks of Court.
    Order of magistrate who conducted preliminary examination of defendants charged with obtaining money by false qiretenses and conspiring to obtain money by false pretenses which bound defendants over to circuit court for trial, after a recital that it appeared to the examining magistrate that the offense was committed as charged and there was probable cause to believe the defendants guilty, overrides any informal remarks made by the examining magistrate as to the complicated nature and magnitude of the case (CL 1948, §§ 750-.218, 750.505).
    8. Same — Preliminary Examination — Presence of Defendant.
    Absence of 1 of 6 defendants charged with obtaining money by false pretenses and conspiracy to obtain money by false pretenses from preliminary examination for 1 day, after being excused by the justice of the peace conducting the preliminary examination at his own request, with his attorney remaining present, was not prejudicial to defendant, when his request to be absent was presented as a request for excuse and not a request for continuance (CL 1948, §§ 750.218, 750.505).
    9. Conspiracy — Acts and Declarations of Conspirators — Admissibility of Evidence.
    Acts and declarations of conspirators made during the period of the conspiracy in furtherance of the conspirators’ purpose are admissible in evidence against all members of the con-, spiraey.

      10. Same — Declarations—Admissibility Against Alleged Conspirators — Order of Proof.
    Declarations of one alleged conspirator are admissible against another not present when they were made, only if there is proof aliunde that the latter is connected with the conspiracy, but the law does not require as a matter of the order of proof that the evidence aliunde be produced first.
    11. Same — Order of Proof — Conditional Admission Into Evidence.
    Admission of acts and statements of some conspirators as evidence against all before proof is offered of all defendants’ complicity is not ground for reversal, if the testimony is conditionally received by the court with the understanding that it will be disregarded if the conspiracy is not shown.
    12. Same — Preliminary Instruction — Admission of Evidence.
    Discussion between defense counsel and trial court of the rule as to admissibility of statements by some conspirators against other conspirators including mention of the rule that statements made after the. conclusion of the conspiracy would be admissible only against the person mailing them and not the other defendants had the effect of a preliminary instruction to aid the jury.
    13. Evidence — Expert Testimony — Value of Installment Notes.
    Admission in evidence of opinions of officials of loan companies of the value of certain installment notes held, proper in trial for obtaining money by false pretenses and conspiracy to obtain money by false pretenses where part of the crime was alleged to be in the sale of worthless installment notes to a finance company (CL 1948, §§ 750.218, 750.505).
    14. Same — Expert Testimony — Admissibility.
    The admissibility of expert testimony is within the fair discretion of the court.
    15. Criminal Law — Unavailabilty of Witnesses — Confrontation — Cross-Examination at Preliminary Hearing.
    Heading witnesses’ testimony at preliminary examination into the record at trial, held, no denial of defendants’ right of confrontation, where witnesses were cross-examined by defendants’ attorneys at the preliminary examination, witnesses were out of State at the time of trial, and testimony was introduced to show diligent efforts on detective’s part to serve subpoenars on witnesses (CL 1948, § 768.26).

      16. Same — Unavailability of Witnesses — Discretion of Court.
    Whether sufficient effort was made to secure the attendance of a material witness in a prosecution for crime so as to declare such witness unavailable is a question for determination by the trial judge and his ruling will not be disturbed in the absence of a showing of an abuse of discretion (CL 1948, § 768.26).
    17. Conspiracy — Exception to Hearsay Eule — Evidence.
    An exception to the hearsay rule is recognized in conspiracy eases, where there is proof of a common enterprise or a mutual agency, so as to permit evidence of acts and declarations of a conspirator done or made while the conspiracy is pending and in furtherance of its objects to be admitted against all conspirators.
    18. Criminal Law — Ealse Pretenses — Conspiracy'—Eeliance by Victim.
    Evidence that money was obtained from a loan company by false pretenses which were relied upon by the loan company to its detriment, and that the obtaining was accomplished pursuant to .a plan made to cover prior defalcations by a combination of persons aeting in concert, where the fraudulent seheme and false pretenses were so designed as to bypass checkpoints established by the loan company in making the loans, held, sufficient to sustain verdicts of guilty as against contention that the loan company had checkers so that it would not have to rely on the information supplied to it (CL 1948, §§ 750.218, 750.505).
    Appeal from Oakland; Dardas (Leon R.), J., presiding.
    Submitted Division 2 April 5, 1967, at Lansing.
    (Docket Nos. 203, 204.)
    Decided December 8, 1967.
    Leave to appeal denied by Supreme Court to all 3 defendants February 13, 1968.
    Ivan Batten, William Tees, and Peter Lazaros were convicted of obtaining money by false pretenses and conspiracy to commit tbat offense. Defendants appeal.
    Affirmed.

      Frank J. Kelley, Attorney General, Robert A. Derengo ski, Solicitor General, S. Jerome Bronson,
      Prosecuting Attorney, Robert W. Leuthe-user, Chief Appellate Counsel, and Dennis Donohue, Assistant Prosecuting Attorney, for the people on appeal.

      Goldfarb & Eudnut, for defendants on appeal.

      Nicholas Smith, of counsel for defendants Batten and Tees.
   A. C. Miller, J.

This is a criminal case of sizable dimensions involving the charges of obtaining money by false pretenses, conspiracy to commit that substantive offense, and conspiracy to avoid payment of State sales taxes, all of which arose out of the 3-week life of the Golden Crown Furniture Company. Defendants Batten, Tees, Lazaros, and Beznos were engaged in a retail furniture business. Generally their procedure was to sell merchandise on credit and then resell the installment paper to finance companies. Defendants Ronchetto and Levine were key men in the finance company.

City Furniture Company, which was owned by certain defendants, had not been able to sell some $31,000 of its installment contracts because the credit of the buyers had not been approved. A plan was developed whereby a new corporation was formed, known as Golden Crown Furniture Company. These bad risks, and certain additional contracts involving fictitious purchasers of merchandise, were rewritten and submitted to the General Public Loan Corporation. Two of the defendants and conspirators, who were of managerial rank in the loan company, arranged it so that these deals were approved and the moneys were paid out. Not one of 264 transactions was rejected. In substance, the conspirators submitted worthless installment contracts to General Public Loan Corporation and secured cash for them. They knew at the time that the paper was worthless and that the paper would be approved within the General Public Loan Corporation only because of the fact that 2 persons in the local branch were members of the conspiracy and would alter and secrete reports. Through this method the worthless paper was converted into cash by false and fraudulent pretenses.

At the trial, testimony was taken about high speed night rides, sessions to practice writing signatures, the frequent changing of pens to give forged signatures an appearance of authenticity, beatings, cash to customers for signatures on inflated paper; installment sales of nonexistent merchandise, payments to insiders, deletions from summary reports intended for the home office of the loan company, and a dramatic night meeting of some parties for a transaction involving a bank bag and an anticipated $30,000.

Defendant Lazaros was tried by jury, and found guilty on all counts. Defendant Ronchetto was found guilty by the jury on counts 1 and 2, and not guilty on count 3. The other. defendants, Batten, Tees, Beznos, and Levine, were found guilty by the judge on counts 1 and 2. The trial judge set aside the jury verdict of guilty on count 3 as to Lazaros.

The first allegation of error asserted in defendants’ brief is based on the denial of the motion to quash the information “on the ground that the first count charged two different felonies provable by different facts.” This ground, recited in appellants’ brief, was not presented in the original motion. As stated at page 3 of the brief of the plaintiff:

“After a search of the trial record and exhibits the people cannot discover just where or if defendants ever made any objection on the grounds of vagueness or duplicity, such as they now make before this court.”

A similar search made by this Court brings the same result. In any event the claim is without merit. The amended information was in the usual form and a bill of particulars was also filed which eliminated any claim of failure to reasonably apprise of the nature of the charges. CL 1948, § 767.45 (Stat Ann 1954 Eev § 28.985). It has been held that an information is not defective for duplicity if distinct offenses are included within the offense charged. In People v. Luttermoser (1900), 122 Mich 562, 565, it was held:

“The nature of the offense makes it necessary to set out the nature of the false tokens and pretenses. The obtaining of the signatures and the presentation of the orders constituted the false pretenses to the treasurer which induced him to part with the money of the township. * * * The gist of the offense was the obtaining the money by the presentation of false or invalid orders. When this is stated, it answers the further objection that the information is bad for duplicity because in the same count several distinct, petty offenses are alleged, as these supposed distinct offenses consist of obtaining these several orders, but the averment as to obtaining the money is single.”

It was necessary to allege and prove the circumstances involved in the installment paper transactions since they constituted the false pretenses by means of which the finance company was induced to part with money. The information reduced to its essentials alleged that the named parties “with intent to cheat and defraud * * * did designedly and falsely represent and pretend that certain written retail sales installment contracts were bona fide, * * # whereas the same were false and worthless * * * and the General Public Loan Corporation * * * believing said false pretenses and representations # * * were * * * induced to deliver * * * certain moneys.” Thus the elements of intent, misrepresentation of fact, and accomplishment were pleaded and, as was stated in Luttermoser, supra, “the averment as to obtaining money is single”.

Defendants also assert error in granting permission to amend the information prior to trial. It is sufficient to state that the court has discretion to permit such amendment of pleadings, CL 1948, §767.76 (Stat Ann 1954 Rev §28.1016), and that so long as the amendment is as to form, which was true here, there is no requirement of rearraignment and further examination. In People v. O’Hara (1936), 278 Mich 281, 301, the Court ruled:

“Failure to remand defendants for further examination or to rearraign them after the amendment was in no way prejudicial. The amendment was one of form rather than substance.”

No request for continuance was made when the amended information was filed, nor was error in permitting the amendment asserted even as late as the motion for new trial. The following statement is in point:

“The record does not show that any objection whatsoever was made to the amended indictment at the time of the trial or on the motion for a new trial or in the assignments of error. Its regularity is attacked for the first time in the brief for appellant in this Court. By going so far without objections, appellant waived any right he may have had to object to the amended indictment.” People v. Kennan (1936), 275 Mich 452, 454.

See, also, People v. Elmer Weatherspoon (1967), 6 Mich. App 233, 236. This assertion of error was raised for the first time in the reply brief and comes too late.

Defendants assert duplicity by reason of joining-count 3, which was the charge of conspiracy to evade sales taxes. In the initial brief, defendants state:

“For the purposes of this appeal, the third count will not be considered because all defendants were acquitted on said charge.”

This was not presented to the trial court and will not be considered now.

The motion to quash made before trial did assert the following grounds which are raised again by defendants’ brief: that the return of the magistrate was improper and that certain testimony was taken out of the presence of defendant Lazaros. The court file indicates that the return of the magistrate as to each defendant is on the ordinary form and recites:

“It appearing to me, that the said offense was committed as charged in said annexed complaint and warrant counts 1, 2, and 3, that the same is not cognizable by a justice of the peace and that there was probable cause to believe the said defendant(s) guilty * * * .”

The courts speak through their orders. In Michigamme Oil Co. v. Huron Valley Building & Savings Ass’n. (1937), 280 Mich 12, 14, the Court said:

“We have repeatedly held that:
“ ‘Courts speak through their judgments and decrees, not through their opinions.’ Boyle v. Berg (1928), 242 Mich 225.”

See, also, Miskinis v. Bement (1949), 325 Mich 404.

The order binding defendants over to circuit court must override any informal remarks alleged by counsel’s affidavit to have been made by the magistrate as to the “complicated nature and magnitude” of the case.

It appears that the other point is also without merit. The defendant Lazaros requested permission to be absent for 1 day of the examination. He appeared and asked the, justice to be excused because of the illness of a child. . His attorney remained. This was not presented in the first instance as a request for continuance denied, but as a request for excuse granted by consent of all concerned. There was no prejudice.

The second allegation of error involves the order of proof. As stated by the defendants:

“Did. the trial court err in admitting evidence of acts and declarations of coconspirators before a showing of a prima facie case of conspiracy?”

It is clear that the acts and declarations of conspirators in furtherance of their purpose are admissible against all members of the conspiracy if made during the period of the conspiracy. People v. Trilck (1965), 374 Mich 118; Wong Sun v. United States (1963), 371 US 471 (83 S Ct 407, 9 L ed 2d 441). See, also, 4 ALR3d 671. It is also clear that this conspiracy must be proven by evidence aliunde.

“However, such declarations are admissible over the objection of an alleged coconspirator, who was not present when they were made, only if there is proof aliunde that he is connected with the conspiracy. * * * Otherwise, hearsay would lift itself by its own bootstraps to the level of competent evidence.” Glasser v. United States (1941), 315 US 60, 74, 75 (62 S Ct 457, 467, 86 L eel 680, 701).

The law does not require as a matter of the order of proof that the evidence aliunde be produced first. The nature of the cases frequently makes this impossible. In People v. Saunders (1872), 25 Mich 119, 120, 121, the Court said:

“It often happens that the existence of the conspiracy is only made- out by inference from the acts and declarations of the several parties thereto; and to exclude evidence of these until the conspiracy is established in some other way, would, in many cases, give the guilty parties immunity.”

In People v. Knoll (1932), 258 Mich 89, 95, 96, the Court approved People v. Saunders, supra, and quoted from Underhill’s Criminal Evidence (3d ed), pp 958-960, as follows:

“ ‘The safest rule is to satisfy the jury by a prima facie case that a conspiracy existed and then to offer evidence of the declarations of any conspirator. However, * * * the declarations are often received before there is any proof of a conspiracy, and then, if the conspiracy be not shown, the jury is instructed to disregard the declarations.’ ”

This rule was also approved in People v. Pettijohn (1938), 283 Mich 108, 115, where the Court specifically acknowledged the conditional reception of evidence as follows:

“The testimony was conditionally received by the court with the understanding that it would be stricken if defendants were not connected with it.”

This was the procedure followed by Judge Dardas and he subsequently properly charged the jury as follows:

“I might say as to statements made here, in order for you to consider the acts and statements of any persons other than the defendants where it was not done within their presence or knowledge, you must be satisfied from the evidence beyond a reasonable doubt that a conspiracy did in fact exist and that the defendants were parties to it and that the acts and statements of others not in the presence of or within the knowledge of the defendants, to be considered by you, must have been done or spoken in furtherance of the purpose of the conspiracy and after it was formed and before it was ended.” (Emphasis added.)

There were no requests to charge, nor were there any objections to the charge as given. Furthermore, early in the trial, defense counsel stated the rule in the presence of the jury as follows:

“Mr. Smith: I have an objection which again will be a forerunner, perhaps, of others on a different point. There is a conspiracy alleged in this case, Your Honor, and it is a contention of the defense that there has been no conspiracy or any unlawful act shown up to this time. However, it is the contention of the defense, particularly my defense on behalf of Peter Lazaros, that after December 9, when the defendant Gino Ronchetto was discharged from the employ of General Public Loan, and Peter Lazaros was informed that General Public Loan no longer was purchasing paper from his furniture store, that those are acts and strong evidence that even if there had been a conspiracy, and none has been shown, but even if there had been, it certainly would have terminated at that date, and any statements made by anyone other than Peter Lazaros after that date would not be binding on Peter Lazaros. Now, he is testifying to statements by Mr. Tees made after this particular time. It is my contention, Your Honor, that even if there were, using the greatest latitude and allowing for the maximum truth to the allegations, although they haven’t been established by proof, that even if there were that after that date, there certainly could not be a continuing conspiracy, and certainly statements of anyone after that date would be self-serving to the individual making it, and should not be binding on the defendant Lazaros.”

The trial court immediately responded:

“That is a correct statement that if a conspiracy did exist, that after the conclusion of the conspiracy, statements made by anyone would be binding only on them.”

This had the effect of a preliminary instruction to aid the jury in the course of the very long trial.

The first statements attributed to defendant Ronchetto came into evidence without objection. These were in the initial testimony of witness Kenneth Carr of General Public Loan Corporation and tended to connect defendant Lazaros. The other statements mentioned in defendants’ brief, such as Ronchetto’s “desire to see a priest”, also came in initially without objection. Certainly the statements and actions were admissible against Ronchetto and the court carefully covered the subject matter in the final charge to the jury as above noted. These were statements made the night of the discovery of the irregularities, and the tenor of the statements was such that the jury could well draw the inference that the efforts to raise the money to cover the deficits prior to calling in authorities were during and in furtherance of the conspiracy. There was evidence that defendant Tees obtained money for Golden Crown paper after that night.

The situation that existed in People v. Trilck (1965), 374 Mich 118, was not involved at this point. That case involved statements made to authorities after the termination of the conspiracy by arrest. Here the statements were made to prevent the termination of the conspiracy. The statements of other defendants which were admitted into evidence were used only against the defendants making them. Jury trial was waived as to all defendants who had made such statements.

The trial judge properly ruled:

“Anything after [arrest] is only to be used against the person making it.”

At the conclusion of the trial the court again ruled, referring to the written statements of defendants Levine, Tees, Beznos, Batten, and Lazaros:

“At the time I received these extrajudicial statements, the ruling was and still holds that it applies only to the person making the statement.”

Even the marking of these exhibits was performed out of the presence of the jury as requested by attorneys for defense. There was no error.

Error Avas assigned because of the receipt in evidence of certain loan company officials’ opinions of the value of certain installment notes. These persons had. special experience and the court properly permitted them to give the jury the benefit of that experience through opinion testimony. Justice Cooley wrote in McEwen v. Bigelow (1879), 40 Mich 215, 217:

“The court must exercise a judicial discretion regarding the reception of evidence purporting to be that of experts. * * * He must decide Avithin the limits of a fair discretion whether the experience of the supposed expert had been such as to make his opinions of any value.”

See, also, People v. McQuaid (1891), 85 Mich 123; and Perri v. Tassie (1940), 293 Mich 464.

Preliminary examination testimony of Connie Wood and Victor Postic was read at the trial. These witnesses had been cross-examined at the preliminary examination by attorneys for defendants. Both witnesses were out of the State; one was in military service. Preliminary testimony of the detective in charge of the case was taken to show the diligent efforts to serve subpoenaes issued for trial. The statute permits this procedure. CL 1948, § 768.26 (Stat Ann 1954 Rev § 28.1049). Nevertheless the use of such testimony should be scrutinized in the light of the Federal confrontation principles enunciated in Pointer v. Texas (1965), 380 US 400 (85 S Ct 1065, 13 L ed 2d 923). The United States Supreme Court reversed the conviction in that case because the transcript of testimony was read at the trial. The chief witness had left the State after testifying at a preliminary hearing. Defendants had not been represented by counsel at that hearing. The Court said .(p 407):

“The case before us would be quite a different one had Phillips’ statement been taken at a full-fledged hearing at which petitioner had been represented by counsel who had been given a complete and adequate opportunity to cross-examine.”

Mr. Justice Potter Stewart notes in concurring (p 409) :

“I join in the judgment reversing this conviction, for the reason that this petitioner was denied the opportunity to cross-examine, through counsel, the chief witness for the prosecution.”

A case which is strikingly similar to the oue at bar is People v. Veitenheimer (1924), 229 Mich 409, 411, 412, where the Court held:

“In the showing made by the prosecuting attorney as to his diligence in securing the attendance of Gilson at this trial, it appeared that the witness had enlisted in the army and was not in the State. Under the showing made it was not error to permit the stenographer to read into the record the testimony of the witness taken on the examination.”

See, also, People v. Pickett (1954), 339 Mich 294, where the witness refused to testify at trial on ground of privilege against self-incrimination, and People v. Dusterwinkle (1966), 3 Mich App 150, where the witness was in military service. In the latter case, Judge McGregor, writing for the Court, said (p 153) :

“Sufficient effort to secure the attendance of a material witness is a question for determination by the trial judge, and there is no showing of judicial abuse of discretion under the circumstances in the instant matter.”

The witness Connie "Wood was a social acquaintance of defendant Tees and in addition to other efforts the officer had solicited this defendant’s aid in locating her for trial. Mr. Tees only stated that he knew that she was in California. A complete and adequate opportunity to cross-examine was afforded at the preliminary examination. The record shows the opportunity was exercised by both extensive cross-examination and objections. Reasonable grounds for the failure to produce at trial were shown. There was no denial of rights. The right of confrontation afforded under both Federal and Michigan Constitutions was satisfied.

Even though no requests to charge were filed and no objections were made at the conclusion of the charge, the defendants now claim that the charge on conspiracy was defective because:

<£In no instance, during the course of instructions, did the court reflect upon the effect of such acts or declarations made after the alleged conspiracy, was at an end.”

The argument is specious. The judge did instruct the jury as to the effect. He said repeatedly: “In order for you to consider * * * ”. Defendants assert that the rule stated in People v. Trilck, supra, was violated. In that case the Court said (pp 122, 123):

“We have recognized an exception in. conspiracy cases where there is proof of a common enterprise or a mutual agency. Under those conditions the acts and declarations of one conspirator done or made while the conspiracy is pending and in furtherance of its object are admissible against all conspirators.”

The trial court’s charge covers the elements of time and purpose as well as the effect of admissions after arrest. This entire charge was repeated at the request of the jury. Furthermore, as also noted above, the judge had stated the rule to the jury during the course of the trial so that the jurors had the benefit of it while they were hearing the evidence as well as in the final charge. There was no error.

Finally, defendants contend that the verdicts were against the great weight of the evidence and that motions for verdicts of not guilty or new trial should have been granted. Defendants do not attempt to document the argument other than to assert that General Public Loan Corporation had checkers “so that they would not have to rely on the information supplied them”. Where the fraudulent scheme and false pretenses were so designed as to bypass these checkpoints, as was the case here, the ineffective protective measures cannot be taken advantage of by defendants. There was ^mple evidence to sustain the verdicts of guilty beyond a reasonable doubt. Money was obtained by false pretenses which were relied upon by the loan company to its detriment, and the obtaining was accomplished pursuant to a plan made to cover prior defalcations by a combination of persons acting in concert. There was no miscarriage of justice.

Judgment of conviction is affirmed and bonds are cancelled. Defendants are ordered to begin serving the sentences imposed.

Quinn, P. J., and McGregor, J., concurred.

       CL 1948, § 750.218 (Stat Aim 1962 Rev § 28.415).

       CL 1948, § 750.218 (Stat Ann 1962 Rev § 28.415) and CL 1948, § 750.505 (Stat Ann 1954 Rev § 28.773).

       CL 1948, § 205.51 (Stat Ann 1960 Rev § 7.521) and CL 1948, § 750.505 (Stat Aim 1954 Rev § 28.773).

       The preliminary examination transcript contained 1,246 pages, and the trial transcript 3,911.

       BUS Const, Ams 6, 14; Midi Const 1908, art 2, §19.


source: Caselaw Access Project

author: J. H. Gillis, J.

license: Public Domain

text:
    PEOPLE v. EGNER.
    1. Criminal Law — Driving. Under Influence of Intoxicating Liquor — Chemical Tests — Warning of Rights.
    Results of breathalyzer test administered to person suspected of. driving while under the influence of intoxicating liquor are. not rendered inadmissible in trial for that crime by failure to advise the defendant that he could have a person of his own choosing administer a blood test, where statute providing for chemical tests does not require that he be advised of his right (CLS 1961, § 257.625; § 257.625a, as amended by PA 1964, No 104).
    2. Same — Trial—Reopening Case — Discretion of Court.
    The trial court in a criminal ease may reopen a ease for the purpose of admitting testimony' in behalf of either the prosecution or the defense in the exercise of sound discretion.
    References for Points in Headnotes
    [1,3] 7 Am Jur 2d, Automobiles and Highway Traffic §§ 260, 332 et seq.

    [2] 53 Am Jur, Trial §§ 128, 129.

      3. Same — Reopening Proofs — Breathalyzer Test.
    Granting by trial court of prosecution’s motion to reopen a case against defendant charged with driving while under the influence of intoxicating liquor to introduce the results of a breathalyzer test, after the prosecution had rested its case, and the defendant had been sworn, held not an abuse of discretion by the court (CLS 1961, § 257.625; § 257.625a, as amended by PA 1964, No 104).
    Appeal from Recorder’s Court of Detroit; Wood (Andrew C.), J.
    Submitted Division 1 April 7,1967, at Lansing.
    (Docket No. 2,711.)
    Decided December 8, 1967.
    Wilburn Egner was convicted of driving a motor vehicle while under the influence of intoxicating liquor.
    Affirmed.'

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Gahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Thomas P. Smith, Assistant Prosecuting Attorney, for the people.

      Tauber & Garon, for defendant.
   J. H. Gillis, J.

On September 22, 1966,' the defendant, Wilburn Egner, was tried in the recorder’s court for the city of Detroit, traffic and ordinance division, in a nonjury trial on a charge of operating a motor vehicle while under the influence of intoxicating liquor. At trial the result of a breathalyzer test, adverse to the defendant, was admitted into evidence over defendant’s objection. Defendant claims this was reversible error because there was insufficient showing that, after submitting to the breathalyzer test, he was advised that he had a right to have a person of his own choosing administer a blood test.

The record shows that a police officer witness testified..that before the defendant took the breathalyzer test-he was advised that he could have his own doctor administer a chemical test to him. Defendant testified that while he was advised that he did not have to submit to the breathalyzer test, he was not advised that he could have an additional test administered by a person of his own choosing. This presented a question of fact for the trial judge to rule on. The court chose to believe the testimony of the police officer-witness and held that defendant was given the opportunity to call his own doctor to administer a chemical test to him. We find no error in this ruling of the trial court.

Further, for the reasons stated in People v. Church (1966), 5 Mich App 303; People v. Kerrigan (1967), 8 Mich App 216; People v. Collett (1967), 8 Mich App 419; and People v. Alford (1967), 8 Mich App 211,' we hold that there is no requirement that the defendant, after submitting to a chemical test administered by a police officer, be advised that he has a right to have a person of his own choosing administer another chemical test.

Defendant next contends that the court erred in allowing the people to reopen their case after they had rested. As soon as the defendant was sworn and asked his name, the court made the following statement to the pirosecutor: “As I get it you have elected not to introduce the results of the breathalyzer?” The people then moved to reopen the case and recalled the police officer who had previously testified that he had administered the breathalyzer test to the defendant. The witness was allowed to testify to the results of the test. We find no error in the court’s ruling allowing the prosecution to reopen their case,

“It is the rule in criminal cases that the. trial court in the exercise of sound discretion may reopen a case for the purpose of admitting testimony .in behalf of either the prosecution or the defense. See People v. Blake, 157 Mich 533; People v. Chimovitz, 237 Mich 247; and People v. Eger, 299 Mich 49.” People v. Lay (1953), 336 Mich 77, at p 83.

Affirmed.

Lesinski, C. J., and Fitzgerald, J., concurred..

       CLS 1961, § 257.625 (Stat Aun 1960 Rev § 9.2325).


author: J. II. Gnus, J.

text:
    FREDAL v. FORSTER. FORSTER v. EVANS.
    1. Parties — Joinder—Property Owners — Townships—Nuisance.
    Joinder of private property owner plaintiffs with public township plaintiff in action to abate nuisance, where private plaintiffs proceeded on 2 theories of nuisance — in fact and per se— and public plaintiff joined on the per se theory, and where both asserted the same issues of violation, sought similar relief, used the same witnesses, facts, and allegation of injuries, held, proper, because joinder is essentially a matter of trial discretion to promote the convenient administration of justice (GCR 1963, 206.1).
    References for Points in Headnotes
    [1] 39 Am Jur, Parties §§ 32, 33.
    [2] 27 Am Jur 2d, Equity § 238.
    '3] 27 Am Jur 2d, Equity § 57; 39 Am Jur, Nuisances §§ 147, 148.
    '4] 52 Am Jur, Towns and Townships § 24.
    '5, 6, 9, 23] 58 Am Jur, Zoning §§ 150, 151.
    "7] 58 Am Jur, Zoning §§ 153, 154.
    '8,11,15,19] 58 Am Jur, Zoning § 158 et seq.

    '10] 58 Am Jur, Zoning §§ 138, 178 et seq.

    12-14, 16,17] 58 Am Jur, Zoning §§ 96, 98, 99.
    18] 58 Am Jur, Zoning § 19.
    '20] 39 Am Jur, Nuisances § 11.
    '21, 24] 39 Am Jur, Nuisances § 197 et seq.

    22] 20 Am Jur 2d, Costs § 72 et seq.

    25] 5 Am Jur 2d, Appeal and Error § 1014.

      2. Equity — Jury Trial.
    The provision of the Constitution abolishing the distinction between law and equity proceedings does not confer the right to jury trial in matters traditionally equitable in nature, and although the Constitution also provides that the right to “trial by jury shall remain”, it does not purport to extend it to equitable actions (Const 1963, art 1, § 14; art 6, § 5).
    3. Nuisance — Abatement—Equity-Criminal Law — Jurisdiction.
    Equity has jurisdiction in actions for abatement of nuisance even where the nuisance is also a violation of a penal law.
    4. Townships — Police Power — State Enabling Acts.
    Townships have no police power of their own and may exercise such power only by grant from the State extended through enabling acts.
    5. Municipal Corporations — Zoning Ordinances — Nonconforming Use.
    A use of land, to qualify as a nonconforming use upon passage of a zoning ordinance, must be a substantial use.
    6. Sam» — Zoning Ordinance — Nonconforming Use.
    “Substantial” use, in connection with the establishment of a nonconforming use under a zoning ordinance, is concerned ' both with a qualitative appraisal of the extent of the use and with its timing relative to adoption of zoning ordinance.
    7. Nuisance — Abandonment—Mines and Minerals — Evidence—• Nonuse.
    Trial court’s finding of abandonment in nuisance action as to 1 pareel of defendant’s land where quarrying of sand and gravel had been carried on for 30 years, held, unsupported by evidence, abandonment of interests in realty not being inferred merely from 3 or 4 years of nonuse.
    8. Townships- — -Zoning Ordinances — Nonconforming Uses.
    Nonconforming uses in land may not expand, sinee township zoning ordinances aim toward the eventual elimination of nonconforming uses in order to effectuate land development sought by the ordinances.
    9. Same — Zoning Ordinances — Nonconforming Uses.
    An entire parcel may not be reserved for a nonconforming use under township zoning ordinances by beginning or conducting such a use on but a portion of the pareel.

      10. Same — Zoning Ordinances — Nonconforming Uses — Termination.
    Townships have no power to provide for the timed termination of a noneonforming use.
    11. Same — Zoning. Ordinances — Nonconforming Uses — Extension — Limitation—Mines and Minerals.
    Operator of sand and gravel quarry having a noneonforming use because his quarry was in operation when township zoning ordinance was adopted, placing his property in a residential district, is not thereby entitled to extend his excavations to areas not yet excavated without obtaining a permit but is limited to excavations in the area under excavation at time ordinance was adopted.
    12. Same — Zoning Ordinances — Mines and Minerals.
    Courts have shown great concern over destruction of valuable mineral deposits by local zoning ordinances, recognizing the difference between ordinances prohibiting commercial uses in residential districts which may be conducted elsewhere with equal profit and ordinances which wholly deprive land owners of valuable minerals.
    13. Nuisance — Townships—Zoning Ordinances — Nonconforming Uses — Mines and Minerals.
    Trial court’s determination that operation of sand and gravel quarry on defendant owner’s land was a public nuisance under township zoning ordinance placing his property in a residential district, held, error, where the quarry' was in operation at the time the ordinance was adopted, and was a nonconforming use.
    14. Townships — Zoning Ordinances — Nonconforming Uses — Sand and Gravel Quarry.
    Defendants who were operating sand and gravel quarry on land zoned residential by township ordinance, but who had established a nonconforming use, held to have the right to continue operation of quarry on established excavation sites even though by so doing the area of use may increase, but not the' right to start new sites.
    15. Same — Zoning Ordinances — Nonconforming Uses — Nonexpansion,
    The rule, that noneonforming uses in land under township -zoning ordinances may not expand means that unused land may not be reserved in anticipation of actual use.

      16. '. Mines and Minerals — Township Zoning Ordinances.
    Proposition that courts are reluctant to sanction destruction of ■■■ ¡mineral rights by township zoning, ordinances means .that excavation sites in existence at the time of ordinance enactment may be worked in the usual manner where mineral deposits " dictate, but when a site, with its enlarged area, no longer yields, the use is consummated.
    17, Townships — Zoning Ordinances — Mines and Minerals — Nonconforming Uses.
    Operation of sand and gravel quarry, which is a permitted non- : conforming use in an area zoned residential by township ■ ordinance) will involve an increase in area and depth, but no virgin areas may thus be exploited, the Court recognizing township’s ordinance objectives of both ultimate elimination of the nonconforming use without zoning the quarry out of business ■ and promotion of land development in surrounding areas.
    1¿.J, Same — Nonconforming Uses — Condemnation.
    . Townships desiring to abate a nonconforming use should use condemnation as the appropriate procedure.
    19. Same — Zoning Ordinances — Mines and Minerals — Nonconforming Uses.
    ' Operation of sand and gravel quarry, which is a nonconforming use in an area zoned residential by township zoning ordinance, , -i is permitted to continue until such time as the quarry area ,. so increases, or the surrounding residential area so develops, that the rights of others would be unreasonably interfered .with.
    20. 'Nuisance — Abatement.
    The relief granted on the basis of a nuisance per se is broader than that which would be permissible under a private nuisance elaim.
    21. Same — Abatement—Nonconforming Uses.

      i A,etual nuisance is abatable without consideration that it is .; a nonconforming use under a township zoning ordinance.
    22. ■.Costs — Attorney'Pees—Bad Paith Pleading.
    Trial court’s award of attorney fees to cross-defendant, who had to defend against an allegation of conspiracy with plaintiff township to deprive named defendants of their sand and gravel business, held, neither error nor an abuse of discretion, where trial court determined the allegations wore made wiihout ‘.any basis of fact, under court rule imposing reasonable costs, ineluding "attorney-fees, upon a claimant for bad faith pleading (GCB 1963, 111.6).

      23. Townships — Zoning Ordinances — Nonconforming Uses — Nuisance.
    Finding of trial court that only a portion of operation site of sand and gravel quarry in an area zoned residential by township ordinance was a nonconforming use, because such parcel was in operation at the time the ordinance was enacted, held, modified to the extent that the noneonforming use is recognized in all areas of the sand and gravel quarry operation under dispute.

      24. Same — Zoning Ordinances — Nuisance'—Mines and Minerals.
    Finding of trial court that operation of sand and gravel quarry in an area zoned residential by township ordinance was an actual nuisance, held, proper, where evidence presented showed that large quantities of dust were blown onto and into many plaintiffs’ homes, unreasonably loud noises were created by earth-moving machinery, house foundations were shaken by ground-breaking equipment, offensive odors emanated from stagnant water in quarry pits, and the whole area was an attractive nuisance to children.
    25. Costs — Neither Party Prevailing in Full.
    No costs are allowed on appeal from judgment of trial court enjoining operation of sand and gravel quarry, neither party having prevailed in full.
    Appeal from Macomb; Carroll (Howard R.), J.
    Submitted Division 2 May 2, 1967, at Detroit.
    (Docket Nos. 1,261, 1,494.)
    Decided December 8, 1967.
    Applications for rehearing: by plaintiff Township of Shelby, denied January 22,1968; by individual plaintiffs, denied February 16, 1968; by defendants Forster, Lubbers, and Oswald, denied February 16, 1968.
    Complaint by Joseph Fredal and 19 neighboring property owners; Township of Shelby, a Michigan municipal corporation; and Country Lane Homeowners’ Association, a Michigan nonprofit corporation, against Leonard Forster, John Lubbers, Arthur Oswald, William Gritzinger, Sr., William Gritzinger, Jr., and John Migut for injunction to stop operation, of a sand and gravel quarry.

      Combination counterclaim and cross-claim by defendants Forster, Lubbers, and Oswald against all plaintiffs for damages for misrepresentation causing temporary injunction of quarry operation, and against cross-defendant Migut, plaintiff Township of Shelby, and Loren E. Evans, Mae E. Steelier, Jack B. Millard, Floyd Parrot, Walter B. Oshinsky, Odilon Iioutekier, and Clifton Pemberton, members of the township board of the Township of Shelby, for damages for conspiracy to deprive defendants of their quarry business.
    Actions consolidated for trial and appeal. Judgment for plaintiffs permanently enjoining operation of quarry, dismissing combination counterclaim and cross-claim, and awarding attorney fees to cross-defendant Migut. Defendants and cross-plaintiffs Forster, Lubbers, and Oswald appeal.
    Judgment modified, and case remanded for appropriate relief; award of attorney fees affirmed.

      Walter P. Cynar, for individual plaintiffs.

      Boy W. Bogensues, for plaintiff Township of Shelby.
    ' Boland L. OlsarJc, for plaintiffs Joseph and Frances Fredal.

      Anthony Benne, for defendants and cross-plaintiffs Forster, Lubbers, and Oswald.

      Kenneth N. Kramer, for cross-defendant Migut.
   J. II. Gnus, J.

Plaintiffs brought an action to permanently enjoin and restrain the operation of a gravel pit and the use of defendants’ land for quarrying purposes.

The plaintiffs are 20 neighboring property owners and the township in which the qnarry land is located. Operation of the property as a quarry site was permanently enjoined by judgment of the trial court and defendants appeal from that order.

A second case arising out of the same proceedings is consolidated on this appeal. The basis of that appeal is the combination counterclaim and cross-claim filed in the trial court by defendants, Forster, Lubbers, and Oswald alleging conspiracy. The sole issue on the combination counterclaim and cross-claim is the propriety of the allowance of reasonable attorney’s fees for allegations which the trial court found to have been unwarranted.

The record reveals that defendant Leonard Forster was the owner of the southeast 1/4 of section 18, township 3 north, range 12 east, situated within Shelby township. He inherited this parcel in 1934 and since that time has quarried portions of the parcel through various licensees and lessees. A number of these licensees or lessees were made defendants along with Forster; John Lubbers and Arthur Oswald, individually and as copartners, doing business as A & J Sand Co.; William Gritzinger, Sr., and William Gritzinger & Son; and John Migut, doing business as General Sand Co. Gritzinger & Son and General Sand Co. were subsequently dismissed as defendants.

Plaintiffs alleged that the quarry operation was a public nuisance, as a violation of the Shelby township zoning ordinance, art 17, §17.02, and therefore a nuisance per se as well as a private nuisance. They sought injunctive relief and rehabilitation of the land in controversy. A preliminary injunction issued enjoining sand and gravel operations on the described property. Motions by defendants to dismiss and for rehearing in regard to the preliminary injunction were denied. Additional defense motions to separate the township plaintiff from the other plaintiffs into separate suits for trial, or to dismiss the action as to either of them, as well as defense demand for jury trial, were denied.

By counterclaim, defendants Forster, Lubbers, and Oswald claimed damages against the individual plaintiffs based on an allegation that plaintiffs’ misrepresentations caused the preliminary injunction to issue. They also proceeded against plaintiff Shelby township and cross-defendant Migut for an alleged illegal conspiracy to put the countercomplainants out of business for the benefit of Migut. It appears that these allegations were based upon the township’s grant to Migut of permission to quarry at another site, to the detriment of countercomplainants’ business. This combination countercomplaint and cross-complaint was dismissed in toto, and the issue arising therefrom is the aforementioned allowance of costs and attorney fees in favor of John Migut, against Forster, Lubbers, and Oswald, in the sum of $2,696-.25.

Since the quarrying operations commenced on defendant’s parcel in the 1930’s, the use of the property as such has been scattered and sporadic. The trial court referred to the entire parcel as if it were divided into quarters in making its determination as to the use thereof. Although such division is arbitrary, we employ it here solely as an aid to visualization.

As to the NW 1/4 of the SE 1/4, from 1930 to 1960 some quarrying was conducted by Ray Industries. The court found this site to have been abandoned in 1960 or 1961.

As to the NE 1/4 of the SE 1/4, in the 1956-1957 period a 2-acre quarry site was established during. which time defendant Gritzinger & Son removed some 45,000-50,000 cubic yards. In 1958, one Wineberger removed approximately 6,600 cubic yards.

As to the SE 1/4 of the SE 1/4, in this area, particularly the southernmost 25 acres, a large operation (apparently the bulwark of defendant’s business) was established, which continued until the time of this suit.

The record does not establish that any use was commenced in the SW 1/4 of defendant’s parcel.

In 1953, defendant’s entire quartersection was zoned residential. The following year, however, a nonconforming use was granted by Shelby township Ordinance No 13 (1954) which rezoned the entire parcel industrial and provided for its use as a quarry site. As set forth above,,considerable quantities of sand and gravel have been extracted from the parcel subsequent to the ordinances of 1953 and 1954.

In 1958, the area immediately contiguous to the north, on the easterly side of defendant’s property, was subdivided into the Country Lane Estates, in which the individual plaintiffs purchased homes. The situation as it then existed was that the Estates was zoned residential and defendant’s property was zoned for nonconforming quarrying purposes. Physically, as the evidence established, the northeasterly portion of defendant’s parcel was not then being used for quarrying purposes as far as any of the plaintiff homeowners could visually discern. There was testimony to the effect that this portion of defendant’s property appeared to be agricultural, with a barn, livestock, and farm equipment within view of the plaintiffs’ homes.

Shelby township, in 1963, rezoned defendant’s property to residential. Quarrying was to be permittcd only by application to the township board, and only under certain specified conditions. Admittedly defendant has not acquired a permit nor sought permission to conduct a quarrying operation.

The event which triggered this present litigation occurred in the fall of 1964. At that time A & J Sand Co., and General Sand Co., pursuant to an agreement with Forster, began a large scale quarrying operation in the northeast section of defendant’s property. Cranes, trucks, and other equipment were moved into the area. A similar operation was simultaneously commenced in the southeasterly section. The homeowners alleged that large quantities of dust were caused to blow onto and into their homes, that unreasonably loud noises were created and that defendant’s ground-breaking equipment caused their very foundations to shake. They also complained of odors emanating from stagnant ponds created in the quarry pits, of an attractive nuisance to children in the area, and that the general area of operation was unsightly.

Charged with great emotionalism on all sides, a 10 day trial ensued which resulted in a court order which enjoined quarrying operations on this property except as to the southeasternmost 25 acres.

The court below described the various mining activities which occurred prior to October 1964 as of such a minor degree as to constitute no private nuisance. As to the activities complained of here, which occurred subsequent to October 1964, the court found that the character and magnitude of these mining operations, the manner of conducting them and the noise and dust produced thereby constituted a private nuisance. The court found the proofs as to private nuisance “positive, clear and credible”.

The court further found a public nuisance in all areas of the SE 1/4 of section 18, except the southerly 1,200 feet of the property. Here the court found a legal nonconforming use. The court stated that its decision was based on Township of Farmington v. Scott (1965), 374 Mich 536, 542, wherein the Court held that a legislature may determine that a violation of a township ordinance is a nuisance per se without showing that anyone was hurt by its violation. The trial court found here that as nonconforming use had been abandoned or not established except in the 1,200-foot area described, the remainder of the property was subject to the terms of the existing ordinance rather than excepted therefrom. Defendants contended below, as they do here, that a nonconforming use has been established as to the entire tract.

In reviewing the use as it existed at the time of enactment of the 1963 ordinance, the trial court found that operations in the northwesterly section had been abandoned in 1960 or 1961. It also found that the use in the northwesterly section was “small” and was not established prior to enactment. Both of these latter findings are challenged in this Court and shall be dealt with in place.

Before reaching the substantive issues, we shall answer the procedural questions raised by appellants. They claim: (1) an improper joinder of the private plaintiffs with the public plaintiff, and (2) error in denying their demand for a trial by jury.

We find no merit in either of these contentions.

The rule covering joinder is GrCR 1963, 206.1, which provides:

. “All persons may join in 1 action as plaintiffs
“(1) if they assert any right to relief jointly, severally, or in the alternative, in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action; or
“(2) if it appears that their presence in the action will promote the convenient administration- of justice.
“All persons may be joined in 1 action as defendants
“(1) if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action; or
“(2) if it appears that their presence in the action will promote the convenient administration of justice.
“A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be rendered for 1 or more of the parties against 1 or more of the parties as the rights and liabilities of the parties appear.”

GrCR 1963, 206, as indicated by the committee notes (1 Honigman & Hawkins, Michigan Court Rules Annotated [2d ed], p 577) is essentially a matter of trial convenience, or to promote the convenient administration of justice. Here, individual plaintiffs proceed on 2 theories of nuisance; in fact, and per se. The township joined on the latter theory, asserting, the same, issues of violation, and seeking similar (albeit broader) relief. Witnesses, facts, allegations of the violative uses, the injuries asserted, and the equitable principles run intertwined throughout the claims of the respective parties. We find proper joinder here, as, in the trial court’s discretion, the interests of justice are so served. Brown v. Forrester Construction Company (1963), 372 Mich 204, 209. Further, we perceive it to be to defendants’ advantage to have these issues tried together rather than to be subjected to multiple lawsuits by the separate plaintiffs on their respective claims. Cf. Gilmer v. Miller (1947), 319 Mich 136.

Defendants’ claim for a trial by jury is based on a misconception of the meaning of the unity of law and equity as set forth in Const 1963, art 6, § 5, which states:

“The supreme court shall by general rules establish, modify, amend and simplify the practice and procedure in all courts of this state. The distinctions between law and equity proceedings shall, as far as practicable, be ■ abolished.”

Defendants’ arguments, in substance, are that the merger of law and equity effected under article 6, § 5 serves to guarantee a jury trial (on proper demand) in all civil cases. The right to a jury trial in civil cases is found in Const 1963, art 1, § 14: “The right of trial by jury shall remain.” As early as 1889, Justice Campbell dispelled the very notion now offered by defendants, Brown v. Kalamazoo Circuit Judge (1889), 75 Mich 274, 284:

“The very wise provision of our Constitution [1850] which by section 5 of article 6 directs the legislature to abolish distinctions between law and equity proceedings, is carefully worded, and requires it to be done only as far as practicable.”

Continuing, Justice Campbell points out that the provision is intended to “abolish systems of procedure which had become overtechnical”, but not to abolish those classes of rights which have formerly been described as “equitable” and those formerly described as “legal”. The opinion continues, holding at p 285:

“Juries cannot devise specific remedies, or safely deal with complicated interests, or with relief given in successive stages, or adjusted to varying conditions. Theory amounts to nothing in the history of jurisprudence. The system of chancery jurisprudence has been developed as carefully and as judiciously as any part of the legal system, and the judicial power includes it, and always must include it. Any change which transfers the power that belongs to a judge to a jury, or to any other person or body, is as plain a violation of the Constitution as one which should give the courts executive or legislative power vested elsewhere. The cognizance of equitable questions belongs to the judiciary as a part of the judicial power, and under our Constitution must remain vested where it always has been vested heretofore.”

So we are reminded that trial by jury “is the sword in the bed that prevents the complete union of law and equity”. As to matters traditionally equitable, no right exists as a matter of law to a determination by a jury. Detroit Trust Company v. Struggles (1938), 283 Mich 471; Chamberlain v. Eddy (1908), 154 Mich 593; Sokel v. Nickoli (1959), 356 Mich 460, 467. This distinction between actions traditionally legal and those traditionally equitable exists today. Fenestra Incorporated v. Gulf American Land Corporation (1966), 377 Mich 565.

As such, there is no room for doubt that an action to abate nuisance is equitable in nature, even where, as here, the nuisance is also allegedly in violation of a penal provision. Detroit Realty Company v. Barnett (1909), 156 Mich 385. The fact that an injunction if issued will restrain a criminal act, “will not stay the chancellor’s hand”. Township of Garfield v. Young (1957), 348 Mich 337, 341; Dearborn National Insurance Company v. Commissioner of Insurance (1950), 329 Mich 107.

The action on the statutory nuisance, or nuisance per se, is a legislatively created action to give teeth to local zoning enactments. Although the statute itself creates a new remedy at law, it declares that violations of an ordinance are a nuisance per se. It is within the power of the legislature to provide equitable remedies for statutory actions; and by the declaration that such a violation is a nuisance per se, equity is given jurisdiction as in the case of any other nuisance. Township of Farmington v. Scott (1965), 374 Mich 536; Portage Township v. Full Salvation Union (1947), 318 Mich 693.

On the merits of the claimed nonconforming use, defendants must be able to show such established use in existence at the time of enactment of the ordinance. The proofs make out a clear case of private nuisance, but it is necessary to decide whether the nuisance per se has been shown in order to decide the remaining question of the propriety of the relief granted.

Since townships have no police power of their own, they may exercise such power only by virtue of grant by the State. In the case of zoning, the power is extended through State zoning enabling acts, and in this case by the rural township zoning enabling act. Built upon the Federal and State Constitutions as a point beyond which the statute may not authorize, the legislature must decide which interest is to give way for the greater good of all. Insofar as the present controversy is concerned, the legislature has provided that:

“The lawful use of any dwelling, building or structure and of any land or premise as existing and lawful at the time of enactment of a zoning ordinance * * * may be continued although such use does not conform with the provisions of snch ordinance or amendment.”'

The issue before us at this juncture is whether defendant Forster has established such a nonconforming use on his premises and, if so, to what extent?

In the northeasterly portion of the land approximately 51,000-57,000 cubic yards had been removed over-a 3-year period from 1956-1958. Excavations were taken from a 2-acre area. The trial court found this use to be “small” and not to have established a nonconforming use under the doctrine of Township of Bloomfield v. Beardslee (1957), 349 Mich 296. In Beardslee, defendants owned 1 parcel which they used as a quarry and purchased a second parcel early in 1951. In 1952, the parcels were zoned residential, and defendants claimed a nonconforming use as to the second parcel. At the time of the ordinance, defendants had removed something over 1,000 cubic yards of gravel. A minority of the Court held that mere preparation or occasional operations are not sufficient to establish a nonconforming use, sustaining the trial court’s finding of “meager” use.

It appears less than meaningful to have often extremely valuable property rights hinging on such quantitative terms as “small” (51,000-57,000 cubic yards in the present case) or “meager” (1,000 cubic yards in Beardslee). The rule is clear that such a use, to qualify, must be “substantial” (see City of Lansing v. Dawley [1929], 247 Mich 394), but “substantial” seems to say no more than “not small” or “not meager”. “Substantial”, in the manner in which the word is used in this type of case, appears to have a dual meaning; it reflects a qualitative appraisal of the extent of the use and it is concerned with the timing of the use relative to the time of enactment of the ordinance. This latter phenomenon is what Crawford has called “the zoning horserace”. The point is certainly appropriate and is illustrated by Adams v. Kalamazoo Ice & Fuel Co. (1928), 245 Mich 261, where the use was instituted in anticipation of the ordinance but preceded it in time. The use in Adams was sustained.

The “occasional use” theory relied upon by the trial court in the instant case is not supported by Beardslee. In the present case, quarrying was carried on for 3 years and over 50,000 cubic yards were removed more than 5 years before enactment of the ordinance. Factually, this is not a Beardslee situation, nor does the instant case fit into those decisions of other states cited by the minority there. Especially in view of the fact that the majority of the Beardslee Court did not base its decision on the occasional use theory, we find that defendant has an established nonconforming use in the northeasterly section of his parcel. We shall deal with the extent of this use subsequently.

In the northwesterly section, quarrying was carried on for some 30 years prior to enactment, the last use being about 1960. The trial court found this use to have been abandoned in 1960 or 1961. We find that the evidence does not support such a conclusion of abandonment. As stated in Doty v. Gillett (1880), 43 Mich 203, 206, 207:

“Eights and interests in real estate cannot, by inference from nonuser alone, safely be considered as having been abandoned or surrendered.”

As to the southerly 1200 feet of the southeasterly section, we are in agreement with the trial court that a nonconforming use has been established.

The obvious next question is the extent of the uses which have been established. In this regard there are two considerations established in the cases which are, at times, at odds. As a first proposition, zoning must aim toward the eventual elimination of nonconforming uses in order to effectuate the growth and development sought by the ordinances. Austin v. Older (1938), 283 Mich 667. Thus, the rule is that nonconforming uses may not expand, even though it may be that such expansion is necessary to remain competitive. City of Hillsdale v. Hillsdale Iron & Metal Company, Inc. (1960), 358 Mich 377.

The cases on “expansion” in this jurisdiction have not dealt with fact situations guiding the present case — that is, the taking of minerals. We are, however, committed to the proposition that an entire parcel may not be reserved for a nonconforming use by beginning or conducting such a use on but a portion of the parcel. See Patchak v. Township of Lansing (1960), 361 Mich 489.

The second proposition by which we are bound is that a township has no power to provide for the timed termination of a nonconforming use. DeMull v. City of Lowell (1962), 368 Mich 242. In DeMull, the ordinance set a 3-year limitation on a nonconforming junkyard. The Court discussed the proposed legislation which would have given municipalities the power to set a time limitation on such uses, and the opinion of the Attorney G-eneral that such a provision allowing for time limits would be invalid. The Court concludes (DeMull, supra, at p 252):

“The legislature heeded the foregoing opinion and meaningfully eliminated, from then drafted section 3a, authorization to do that which the defendant city has attempted to ordain. Thus it must be held that section 9A of the city’s zoning ordinance is invalid for want of legislative warrant.
“So far the legislature has permitted ordinances providing only for resumption, restoration, reconstruction, extension, or substitution of nonconforming uses. It has withheld permission to destroy them, by time limitation or otherwise.”

■ Between these prevailing concepts of nonexpansion and nondestruction lie the peculiar problems of a quarry operation. An operator digs a hole and establishes a use on a small percentage of a very large tract. The nonexpansion doctrine would have us limit the nonconforming use to that small hole. The nondestruction doctrine would permit of an expansion in area in order that the operation might continue where the minerals are found. Thus, the argument is made that in the case of “diminishing assets” the owner may go wherever on his land the mineral deposits are found — that a larger tract than was immediately needed was purchased for that very purpose. This was the view taken by the trial court in Dolomite Products Co., Inc., v. Kipers (1964), 42 Misc 2d 11 (247 NYS2d 396), where an established quarry use was extended to 2 other parcels even though no quarrying had yet commenced on the latter parcels. The appellate division reversed the ruling of the trial court and held that no use had been established as to the 2 other parcels, 23 App Div. 2d 339 (1965) (260 NYS2d 918), and the court of appeals affirmed, 19 NY2d 739 (279 NYS2d 192).

Dolomite could be distinguished in that there, as in Beardslee, supra, it was attempted to set up a use on a different parcel from that on which the use had been previously established. The reasoning of these cases, however, is especially cogent. As the Supreme Court stated in Beardslee, sitpra, at p 303:

“Attractive though, the argument may seem upon its first reading, it must be obvious that a logical application of its principle would be destructive of all zoning. For in each case the particular parcel has, it is always asserted, some peculiar utility: it is an ideal spot for a motel, or a factory, or a junkyard, or what not. It has that contiguity to traffic, that peculiar topographical structure, that supply of water or shade, which makes it unique. Yet, just as the surface user desired by the owner must give way, at times, to the public good, so must the subsurface exploitation.”

The logic is persuasive that zoning would soon run into an absolute impasse if large tracts of land may be dedicated to a nonconforming use by beginning that use on a different parcel or in a small area of a single large tract. The result would be obvious • — one owning hundreds of acres of land might forever claim the use of that land for quarrying by beginning a pit in any small corner. We adopt the following language of the New York trial court in People v. Gerus (1942), 69 NYS2d 283, 288:

“I cannot accede to the argument that a person owning, for example, 100 acres of land, who is engaged in excavating sand therefrom as a business at the time of the enactment of the zoning ordinance placing his property in a residential zone, may, nevertheless, continue to extend the operation of that business to the entire 100 acres. To follow such argument to its logical extreme would result in making zoning almost, if not entirely, impossible.”

Before reconciling these two propositions as to the present case, it is necessary to discuss what might be termed a third proposition, a subproposition, or a guide. This tempering element is simply the great concern our courts have expressed over the destruction of valuable mineral deposits by local ordinances. It might be thought of as a matter of general public policy which, if not expressly contained in the enabling acts, merits our consideration by the decisions of our Supreme Court. While no case we have found decides this issue, the cases do express a concern over mineral rights — and we note and guide ourselves by those expressions.

The source of such expression by our Supreme Court is found in Village of Terrace Park v. Errett (CA 6, 1926), 12 F2d 240. Mr. Errett challenged a township ordinance which zoned his quarry land residential. Although the attack there was on the reasonableness of the ordinance, the following passage is found at p 243:

“There is also a substantial difference between an ordinance prohibiting manufacturing or commercial business in a residential district that may be conducted in another locality with equal profit and advantage, and an ordinance that wholly deprives the owner of land of its valuable mineral content.”

Errett was cited in City of North Muskegon v. Miller (1929), 249 Mich 52, where again an ordinance prohibiting the taking of oil was held unreasonable. There, the land was found unsuited for the purposes for which zoned. Finally, in the majority opinion in Beardslee, supra, at pp 310, 311, four Justices refused to accept the “occasional use” theory of the minority and, by Justice Black writing, rested their decision on a finding of an enjoinable public nuisance (in fact):

“My caution, in refraining from support of this ordinance as applied to defendants’ asserted right of use of their lands, may indeed be due to an excess of concern over the implications of zoning the depths distinguished from zoning the surface. Such concern is, nevertheless, sustained by respected authority we have followed, * * * wherein stress is laid upon the importance of ‘not destroying or withholding the right to secure oil, gravel, or mineral from one’s property, through zoning ordinances, unless some very serious consequences will follow therefrom.’ ”

See, also, Certain-teed Products Corporation v. Paris Township (1958), 351 Mich 434, 466.

Guided then by two conflicting propositions and tempered by a third, we find that the established sites in defendant owner’s northeastern, northwestern, and southeastern portions of his property may be continued even though by so doing the area of use may thereby increase. We construe the meaning of the nonexpansion rule, as it relates to quarries, that heretofore unused land may not be reserved in anticipation of actual use. No new sites may be started.

We construe the meaning of the nonextinction proposition to mean, especially in light of the fact that mineral rights are here involved, that sites in existence may be worked in the usual and ordinary manner where the deposits dictate. When a site, with its enlarged area, no longer yields, the use is consummated.

In a situation such as the present, it is a fine line which separates “expansion” from “continuation”, and we tread lightly, for on either side of the line innocent parties may suffer. “Continuation” in the case of minerals must involve an increase — either in area or depth. But no virgin areas may thus be exploited. This, we believe, will lead to the ultimate elimination of the use without zoning the owner out of business, for in effect, he is only allowed to continue that which he has begun. Also, this will allow for the development of the surrounding areas for which the township has obviously provided by its ordinance.

If the township would abate the uses we have thus outlined, and if such use creates no actual nuisance, then condemnation is the appropriate way to proceed. DeMull v. City of Lowell, supra.

There is no showing in this case of actual nuisance save from the 1964 operation in the northeasterly section. Defendant owner has established nonconforming uses in the northeastern, northwestern, and southeastern sections where existing excavation sites were established prior to the 1963 enactment. The use of these sites may be continued until such time as their area so increases, or the surrounding area so develops, or both, that the rights of others would be unreasonably interfered with.

Private nuisance plays no part in our decision, for even though we are convinced that it has been proven, the relief granted on the basis of nuisance per se is broader than that which would be permissible under a private nuisance claim. Whether nonconforming use or not, neither we nor the trial court will countenance this or any other use which is, or becomes, an unreasonable interference with the rights of others. Defendants should plan their continuation as to avoid future interference with development of surrounding areas. Actual nuisance is abatable without consideration of nonconforming use. See Beardslee, supra (majority opinion); Civic Association of Dearborn Township, District No 3 v. Horowitz (1947), 318 Mich 333.

On the matter of attorney fees allowed to cross-defendant Migut, we find no error or abuse of discretion by the trial judge. This issue arises from the aforementioned combination countercomplaint and cross-complaint, and is the sole issue in case No. 1,494, consolidated on this appeal. To reiterate, this claim alleged that Migut and the township of Shelby entered into a conspiracy to deprive Forster and others of their sand and gravel business. The claim was evidently predicated upon Migut’s having obtained a permit to mine a former site which had lain dormant of late.

GCR 1963, 111.6 provides:

“If it appears at the trial that any fact alleged or denied by a pleading ought not to have been so alleged or denied and such fact if alleged is not proved or if denied is proved or admitted, the court may, if the allegation or denial is unreasonable, require the party making such allegation or denial to pay to the adverse party the reasonable expenses incurred in proving or preparing to prove or disprove such fact as the case may be, including reasonable attorney fees.”

In this case, the trial court found that these allegations

“were made without any basis of fact or reasonable inference therefrom. Such unfounded unjustified allegation required joining of issue, preparation for trial and trial. They should not have been so made and were unreasonable. Costs and attorney fees must be here allowed.”

Elucidation on the applicability of GCR 1963, 111.6 may be found in 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), 1967 Pocket Part pp 37, 38, as well as 2 Honigman & Hawkins (2d ed), p 220.

The finding of the trial court is modified to the extent that the nonconforming use is recognized in the northeast, northwest, and southeastern portions. The finding of actual nuisance is affirmed and the case is remanded for appropriate relief. Award of attorney fees is affirmed.

No costs, as neither party prevailed in full.

Lesinski, C. J., and Weipert, J., concurred,

       Country Lane Estates Homeowners’ Association, also joined as a party plaintiff, was dismissed by the trial court as it was not a real party in interest.

       CL 1948, § 125.294 (Stat Ann 1958 Rev § 5.2963 [24]).

       The conditions reeited in the special ordinance are not here set forth as no claim is made that defendant’s use was not in compliance therewith.

       CL 1948, § 125.286 (Stat Ann 1958 Rev § 5,2968[16]),

       Taken from au unpublished lecture by Professor Zeeliariah Chafee, Jr., late professor of law, Harvard. University,

       CL 1948, § 125.271 et seg_. (Stat Ann 1958 Rev § 5.2963[1] et seq.).

       CL 1948, § 125.286 (Stat Ann 1958 Rev § 5.2963[16]).

       Although the majority did not repudiate this “occasional use” theory, it did not follow it, but chose to base its concurrence on a public nuisance theory.

       Crawford, Michigan Zoning and Planning, § 5.02[3].

       OAG-, 1947-1948, No 146, p 217 (March 7, 1947).

       See Cullum v. Topps-Stillman’s, Inc. (1965), 1 Mich App 92; MacKenzie v. Frank M. Pauli Co. (1919), 207 Mich 456; Ballentine v. Webb (1890), 84 Mich 38.


author: T. G-. Kavanagh, P. J.

text:
    DROUILLARD v. CITY OF ROSEVILLE.
    1. Certiorari — Superintending Control — Scope op Review.
    Superintending eontrol replaces certiorari but the seope of review thereon-has not changed (GCR 1963, 711.3).
    2. Courts — Superintending Control — Record.
    A circuit court, in exercising superintending control to review the aetion of another tribunal, must decide on the reeord made below.
    3. Certiorari — Superintending Control — Record.
    A circuit court has nothing to review by way of certiorari or application for superintending eontrol if no reeord was made in the tribunal below (GCR 1963, 711.3).
    4. Injunction — Superintending Control — Hearing by City Civil Service Commission.
    Aetion against city civil service commission for injunction against use of civil service examination results and other relief, brought after plaintiffs attempted unsuccessfully to have a hearing on their complaints before the civil service commission, held, improperly treated by trial court as an aetion for superintending eontrol of the civil service commission, because there was no hearing before the civil service commission to be reviewed by an aetion of superintending control.
    5. Motions — Accelerated Judgment.
    Whether plaintiffs have stated a elaim upon which relief ean be granted is not material to a motion for accelerated judgment (GCR 1963, 116).
    References for Points in Headnotes
    [1, 2] 14 Am Jur 2d, Certiorari §§ 3, 63 et seq.

    [3, 4] 14 Am Jur 2d, Certiorari § 66.
    [5, 6] 41 Am Jur, Pleadings § 335 et seq.

    [7, 8] 41 Am Jur, Pleadings § 340 et seq.

    [9] 41 Am Jur, Pleadings § 342.
    Propriety of considering answers to interrogatories in determining motion for summary judgment. 74 ALR2d 984.
    [10] 5 Am Jur 2d, Appeal and Error § 1009.

      6. Same — Accelerated Judgment.
    A motion for aeeelerated judgment is a means of testing certain defenses which may defeat a eomplaint even if it properly states a claim (GCB. 1963, 116).
    7. Same — Summary Judgment — Accelerated Judgment.
    The defense that a eomplaint fails to state a 'claim upon which relief can be granted must be asserted by motion for summary judgment and may not be made by motion for accelerated judgment (GCB 1963, 116, 117).
    8. Same — Accelerated Judgment — Pleadings.
    Stipulation by parties in action for injunction and other relief that the eourt in considering defendants’ motion for accelerated judgment could have recourse to all the pleadings, interrogatories, and depositions on file in the ease and eould consider them all in making its determination as to whether the plaintiffs, had stated a eause of action, applied only to a motion for accelerated judgment and did not authorize the court to determine a motion for summary judgment, which is the proper motion for deciding whether a claim has been stated upon which relief ean be granted (GCB 1963, 116, 117).
    9. Same — Summary Judgment — Interrogatories—Depositions.
    Interrogatories and depositions are relevant to a motion for summary judgment only if the ground stated is that there is no genuine issue of material fact, not if it is asserted that the pleading fails to state a claim upon which relief can be granted or fails to state a defense (GCB 1963, 117).
    10. Costs — Public Question — Civil Service.
    No eosts are allowed in appeal from judgment dismissing action to determine that a promotional examination for the position of sergeant in the eity poliee department did not conform to the requirements of the civil service act, a public question being involved (CL 1948, § 38.501 ei seq., as amended).
    Appeal from Macomb; Spier (James E.), J.
    Submitted Division 2 May 2, 1967, at Lansing.
    (Docket No. 2,213.)
    Decided December 8, 1967.
    Complaint by Harold A. Drouillard and others against the city of Roseville, a municipal corporation, and the City of Roseville police and fire civil service commission, for determination that a promotional examination did not conform to the requirements of the civil service act and to enjoin promotions based on that examination. Robert Peters and others intervened as defendants. Judgment for defendants. Plaintiffs appeal.
    Reversed and remanded.

      Butter & Martin, for plaintiffs.

      William B. Ward, City Attorney, for defendants.
   T. G-. Kavanagh, P. J.

Plaintiffs, members of the Roseville police force took a promotional examination for the position of sergeant in the department. They failed to pass the examination and brought suit to determine that the examination as given was illegal as not conforming to the requirements of the civil service act and asked that promotions based on that examination be permanently enjoined.

The plaintiffs assert the examination was faulty in the following particulars :

(1) The notice required by the act was not given.

(2) The accommodations for the examination were not suitable as required by the act.

(3) The scope of the examination was too broad in violation of the act’s requirements.

(4) The secrecy provisions of a civil service commission resolution were not observed.

They assert that when they petitioned the civil service commission for a new examination based on these complaints, the commission ignored their request and certified the results of the examination.

The defendants denied that the notice required was not given; denied the accommodations were unsuitable; and denied the scope was improper.

They further maintained that these matters were all within the discretion of the civil service commission and were not reviewable by the court in a suit for a declaration of rights.

Accordingly they moved for accelerated judgment under G-CR 1963, 116 on the basis that the circuit court lacked jurisdiction over the subject matter, and for summary judgment under GCR 1963, 117 on the basis that the plaintiffs failed to state a claim upon which the relief sought could be granted.

The court elected to treat the suit “in the nature of superintending control” and on the pleadings, depositions, and answers to interrogatories, resolved the factual issues in favor of the defendants, and summarily dismissed the plaintiffs’ complaint.

On appeal the appellants claim the court should not have resolved disputed factual issues without an evidentiary hearing.

The appellees assert the court was correct in doing so because of the following stipulation of the parties :

“It is hereby stipulated by and between the parties herein through their respective counsel, that the court in considering the defendants’ motion for accelerated judgment may have recourse to all of the pleadings, interrogatories and depositions presently on file with the court and may consider all of the above in making their [sic] determination as to whether the plaintiffs have stated their cause of action.”

It has not been disputed that, as plaintiffs contend, they attempted unsuccessfully to have a hearing on their complaints before the civil service commission. The failure to have such a hearing cannot be charged to plaintiffs.

Since there was no hearing before the civil service commission, the trial judge erred in treating plaintiffs’ plenary suit as one for superintending control. Superintending control replaces certiorari (GCR 1963, 711.3) but the scope of review thereon has not changed. Indian Village Manor Company v. City of Detroit (1967), 5 Mich App 679. The circuit court in exercising superintending control to review the action of another tribunal must decide on the record made below. In re Fredericks (1938), 285 Mich 262, 266, 267. If no record was made below, it has nothing to review by way of certiorari or application for superintending control which replaces it.

Plaintiffs brought a plenary suit and were entitled to an evidentiary hearing thereon. However, a hearing was not conducted, and the trial judge disposed of the case by dismissing the suit. The order of dismissal did not state whether it was by way of accelerated or summary judgment. In his written opinion the court alluded to deficiencies in the statement of claims in the complaint and in the proofs. "We do not think the order of dismissal should have been entered.

The stipulation that in considering defendants’ motion for accelerated judgment the court could have recourse to the pleadings, answers to interrogatories and depositions in determining whether plaintiffs have stated their cause of action is evidence of the confusion of the purpose of the two rules (G-CR 1963, 116 and 117).

Whether plaintiffs have stated a claim is not material to a motion for accelerated judgment (GfCR 1963, 116). A motion under rule 116 is the means of testing certain defenses (e. g. lack of jurisdiction of the subject matter) which may defeat a complaint even if it properly states a claim. The defense that the complaint fails to state a claim must be asserted by motion for summary judgment under GCR 1963, 117 and may not be made, by motion for accelerated judgment under G-CR 1963,116.

The stipulation concerns only the motion for accelerated judgment, and not the motion for summary judgment, even though it mistakenly assumes that a motion for accelerated judgment can test whether a claim has been stated in the complaint. The plaintiffs did not stipulate that their pleadings and answers to interrogatories could be considered on the motion for summary judgment, which sought to test whether a claim had been stated. Interrogatories and depositions are relevant only if the ground stated for summary judgment is that there is no genuine issue of material fact' — not if it is asserted that the pleading fails to state a claim or defense.

Reversed and remanded. No costs, a public question being involved.

Levin and Sullivan, JJ., concurred.

       CL 1948, § 38.501 et seq., as amended (Stat Ann 1958 Rev § 5-.3351 et seq., as amended).