text:
    SMALLEY v. DETROIT & MACKINAC RAILWAY CO.
    1. Railroads — Duty to Passengers — Opportunity to Alight from Train.
    It is the duty of a railroad company to stop its train a sufficient length of time at a station to enable its passengers, moving with reasonable promptness, to alight therefrom; and what time will be deemed sufficient in a given case may depend somewhat on whether the cars are crowded or otherwise.
    2. Same — Negligence.
    When a passenger has reached the platform of the car in his efforts to alight, and finds the train moving, it is negligence on the part of the company to cause the train to be stopped so suddenly as to throw him therefrom, without having made any effort to secure his safety.
    3. Same — Contributory Negligence — Questions for Jury.
    Plaintiff started to leave a crowded railway train during its stop at a station, but when she reached the platform, holding a valise in -one hand and the train of her dress in the other, the cars had started. The brakeman, on being informed that she desired to alight, pulled the bell rope, and the train stopped suddenly, throwing her off and injuring her. The length of time that the train stopped in the first instance was in dispute. Held:

    (1) That whether the train stopped a sufficient length of time to permit plaintiff to alight was a question for the jury.
    (2) That it was also for the jury to say wlietl^r she was guilty of contributory negligence in not re-entering the cal- or holding to the railing when she ascertained the situation.
    (3) That defendant could not complain of the submission to the jury of the question of the brakeman’s negligence in failing to warn plaintiff, or to take steps to protect her, before stopping the train.
    A Trial — Instructions to Jury.
    A charge to the jury is to be read as a whole in determining whether the cause was fairly submitted.
    Error to Bay; Shepard, J.
    Submitted October 8, 1902.
    (Docket No. 4.)
    Decided October 28, 1902.

      Case by Juna E. Smalley against the Detroit & Mackinac Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    On Sunday, August 25, 1901, defendant ran an excursion train from Bay City to Alpena. Plaintiff was a passenger on the return trip from Alpena, and designed to alight from the train at Pinconning, where she resided. The train was composed of an engine and ten cars. There was a double train crew, consisting of one conductor and an assistant, two brakemen, and a baggageman, who had no baggage to handle, and assisted in the conduct of the train by repeating the conductor’s signals to the engineer. After making the stop, the “all-right ” signals were passed from man to man along up from the rear of the train, and finally, as given by the conductor, were confirmed by the baggage master, standing in the baggage car, where he could see the engineer and conductor. The train was crowded, and passengers were standing in the aisles. The train arrived at Pinconning at 9 :30 p. m. ' Plaintiff, with her valise and umbrella, was seated near the middle of the fourth car from the engine. A man sat in the same seat, next to the aisle. As soon as the train stopped, plaintiff, according to her own testimony and that of others, arose from the seat and started towards the front platform of the car, intending to alight. She made due effort to reach the platform in time. She was somewhat obstructed by the man in the seat with her, and by others standing in the aisle. On arriving at the door, the train had started. The brakeman stood upon the platform, and asked if she desired to alight. She informed him that she did. She was then holding her umbrella and valise in one hand, and the train of her dress in the other. Without warning or assisting her, he immediately pulled the cord to signal the engineer to stop. He testified that he received no response to this signal, and stepped inside the car ahead, and pulled the cord there. The engineer suddenly stopped the train, and the plaintiff was thrown off and injured.

      There was a conflict of evidence as to the time during which the train stopped at the station for passengers to alight. The passenger in front of plaintiff testified that the train started while she stood upon the lower step. At this time plaintiff was approaching the front door of the car as rapidly as she could. Plaintiff recovered verdict and judgment.

      T. A. E. & J. C. Weadock, for appellant.

      Isaac A. Gilbert (De Vere Hall, of counsel), for appellee.
   Grant, J.

(after stating the facts). 1. The negligence alleged is the failure to stop the train a reasonable length of time for her to alight, and the sudden stoppage of the train without notice or warning, or giving her sufficient time to re-enter the car. It is admitted that no warning was given, but it is insisted that she knew of the danger, and was herself negligent in not re-entering the car, or taking reasonable precautions to protect herself.

The conflict of testimony upon the length of time the train stopped rendered the question a proper one to submit to a jury. Every passenger is entitled to sufficient time within which to alight after the train has stopped. 3 Thomp. Neg. § 2876. It is also the duty of the passenger to move with reasonable promptness and speed. If- railroad companies see fit to permit their cars to be crowded beyond their capacity, either upon excursions or otherwise, they are bound to see that passengers have a reasonable time, and are afforded reasonable facilities, to extricate themselves from the crowd and alight. The length of time will depend upon circumstances. Where the train is crowded and passengers are occupying the-aisles, a longer time is required than when the train is occupied with the ordinary number of passengers.

Whether, as a matter of law, the brakeman, under his own testimony, was guilty of negligence in giving no warning to or taking no steps to protect the plaintiff before stopping the train, we need not determine. The question of negligence was left to the jury. If the conduct of the brakeman was negligence per se, the defendant has no cause of complaint because it was left to the jury. When a passenger has reached the platform in his efforts to alight, and finds the train moving, it is negligence to cause the train to be so suddenly stopped as to 'throw the passenger down, when no reasonable effort has been made to secure his safety. The evidence upon all these points was sufficient to .justify the court in submitting the question of the defendant’s negligence to the jury.

2. The question of contributory negligence was properly left to the jury. Plaintiff was notified and invited to alight. According to her evidence, she had exercised diligence in moving to the platform for that purpose. Arriving upon the platform, she found the train in motion. Instantly the brakeman signaled the engineer to stop. Evidently it was but a few seconds between her informing the brakeman that she desired to alight and the sudden stoppage of the train. The brakeman: acted in great haste. The risk of stopping a train under these circumstances was not one of the risks assumed by travelers. We cannot say that she was guilty of contributory negligence in not attempting to re-enter the car, or to let go of her dress and take hold of the railing to protect herself. Her conduct, in view of all the testimony, became a question for the scrutiny of the jury. It cannot be said that the average prudent person would have acted differently from what she did, in view of the entire surroundings. It is unnecessary to discuss the facts further. The case is squarely within Strand v. Railway Co., 64 Mich. 216 (31 N. W. 184).

3. The learned counsel for defendant have selected a few isolated sentences from the charge of the court, and allege error upon them. When read in connection with the entire charge, they become harmless, even if they were erroneous. The learned judge very clearly in his charge, read as a whole, left to the jury the two questions of negligence and contributory negligence, with ample evidence on which to sustain the conclusions reached by the jury.

The judgment is affirmed.

Hooker, C. J,, Moore and- Montgomery, JJ., concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    NATIONAL LUMBERMAN’S BANK v. MILLER.
    1. Bills and Notes — Husband and Wife — Consideration— Burden of Proof.
    In an action on a promissory note made by a wife and indorsed by her husband, purporting to be for value received, plaintiff makes a prima facie case, by introducing the note in evidence, and is not bound, in the first instance, to prove such a consideration as would bind the wife.
    2. Same — Question for Jury.
    In such action, evidence that the wife applied for the loan without offering security, saying that she did not like to ask her husband to indorse for her, but that she finally gave such indorsement on being advised that it would be necessary, is sufficient to justify a finding that she obtained the money under a representation that it was for the benefit of her separate estate.
    3. Same — Estoppel.
    If a wife obtain money on her note by representing that it is for her separate estate, she will not be heard to defend on the ground that her husband persuaded her to take that means of obtaining money for him.
    4. Same — Liability of Wife.
    A wife-is liable on a note given by herself-and husband in so far as the consideration therefor was for the benefit of her separate estate.
    5. Same — Evidence.
    In an action against a husband and wife on a promissory note, defended on the ground that it was given solely for his benefit, evidence of conversations between them, not shown to have been in the presence of, or communicated to, plaintiff, is inadmissible.
    f>. Same.
    But in such case a searching inquiry into the business relations between defendants, and the amount of property and extent of business of each, is allowable to plaintiff.
    Error to Muskegon; Russell, J.
    Submitted October 8, 1902.
    (Docket No. 17.)
    Decided October 28, 1902.

      Assumpsit by the National Lumberman’s Bank against Isabella G. Miller and John A. Miller upon a promissory note. Erom a judgment for plaintiff, defendants bring error.
    Affirmed.
    This suit is brought upon a promissory note for $4,045, dated December 30,1899, with defendant Isabella as maker and defendant John as indorser. With the plea of the general issue defendant gave notice that she was the wife of her codefendant, and that said note was for money obtained for his individual use. The defendants are husband and wife. Isabella owned property in her own right to the amount of about $15,000. In 1892 she borrowed $200 of the plaintiff, for which she- gave her individual note. It was renewed from time to time, and payments made until the amount was reduced to $145. In February, 1893, she obtained a loan from the bank of $1,000, for which she gave her note. When she applied for the-loan, the cashier informed her that some security would be required, and spoke to her about procuring the indorsement of Mr. Miller." She stated that she did not like to ask him, but she brought a note signed by herself, with Mr. Miller’s indorsement, and obtained the money at the bank. This note also was renewed from time to time. John A. Miller also had individual notes at the bank. All these notes were, on November 18, 1896, consolidated into a single note for $4,070, signed by her and indorsed by him. This was renewed from time to time, interest and small payments made until December 30, 1899, the date of the note in suit. The court directed a verdict for plaintiff for the amount of $145, which was a part of the consideration of the note in suit, holding that it was Mrs. Miller’s personal matter. He left it to the jury to determine whether, under the proofs, the $1,000 was obtained upon representations by Mrs. Miller that it pertained to her separate estate. Upon this point the jury found for the plaintiff. The judge instructed the jury that defendant Isabella was not liable for the balance of the note. The jury rendered a verdict for plaintiff for $1,287.35.

      W. J. Turner (S. H. Clink, of counsel), for appellants:
    Cited, in support of the proposition that a married woman’s note cannot be presumed valid, Kenton Ins. Co. v. McClellan, 43 Mich. 564 (6 N. W. 88); Schlatterer v. Nickodemus, 51 Mich. 626 (17 N. W. 210); Fechheimer v. Peirce, 70 Mich. 440 (38 N. W. 325).

      Smith, Nims, Hoyt & Erwin, for appellee.
   Grant, J.

(after stating the facts). 1. Plaintiff made its prima facie case by introducing the note in evidence. Defendants thereupon moved the court to direct a verdict for the defendants on the ground that the plea and notice showed that the defendants were husband and wife, and the duty rested upon the plaintiff to prove such a consideration as would bind her. Upon its face the note was hers, and it imported a consideration paid to her. It was indorsed by her husband. There was no presumption against the legality of such a note. The burden rested upon the defendant to prove facts which would relieve her from liability. The motion was properly overruled.

2. The defendants then entered into the merits of the controversy, and testimony was taken; the cashier of the bank and Mr. and Mrs. Miller giving testimony. The cashier gave the following testimony in regard to the transaction:

“Mrs. Miller came and asked me if she could borrow a thousand dollars from the bank. I says, ‘ What on ? ’ and she says, ‘ On my note.’ I says, ‘ On what security ? ’ She says, ‘Ain’t .my note good ? ’ I says, ‘ I presume it is, Mrs. Miller, but we are in the habit of having some collateral security or indorser on notes of any size.’ ‘Why,’ she. says, ‘you didn’t ask me for any security on that $200.’ I said, ‘That was a small amount, and I knew you were all right; but I think on an amount of this size our people would want some security.’ She says, ‘ I don’t know what security to give you; haven’t any to give you that you would take.’ I says, ‘ Could you give us an indorser ? ’ She says, ‘ I don’t know who to ask to indorse.’ I says, ‘Wouldn’t Mr. Miller indorse for you ?’ She says, ‘ I presume he would if I would ask him, but don’t want to ask him to indorse my note.’ I took her application down on the book without indorser, and says: ‘ If you want me to submit your application in this shape, will submit it, but am afraid our people will not take it. Think Mr. Miller would not hesitate to indorse the note, and, if he would, thinkthey would take it.’ She says, ‘You may put it down with Mr. Miller’s name;’ and I put it down, and it was passed upon by tbe committee favorably. The note is dated on the 24th of February, 1893, the same date of the application.”

He further testified that he relied upon her statements in making the loan, and understood that .the money was obtained for her separate estate. Mrs. Miller did not deny this testimony of the cashier. She did not tell the cashier that the money was for her husband. If she obtained the money representing that it was for herself individually, and for her separate estate, she will not be heard to defend on the ground that her husband persuaded her to take this course, and to obtain the money for him. She herself testified that she was under no threats or coercion. It is evident from her own testimony that she gave the cashier to understand that she was acting in her individual capacity, and desired the money for her own use in regard to her separate estate. We think the court committed no error in leaving the question to the jury.

3. Conversations which took place between the defendants were incompetent, since no attempt was made to show that they were either in the presence of, or were communicated to, the cashier of the bank.

4. The court allowed a wide latitude to the plaintiff in inquiring into, the business relations between the defendants, and the amount of property and extent of business carried on by each. We think the case was one justifying such inquiry, and that the court committed no error in admitting such testimony.

Judgment is affirmed.

Hooker, O. J., Moore and Montgomery, JJ., concurred.^.


text:
    HUYSER v. BOARDS OF SCHOOL INSPECTORS OF TOWNSHIPS OF ZEELAND, OLIVE, AND BLENDON.
    1. School Districts — Organization—Notice op Meeting op Inspectors — Proop op Posting.
    Under 2 Comp. Laws, § 4658, requiring that notice of a meeting of a township board of school inspectors to act on an application to organize a new district be given by posting the same in three “public places” in the township, an affidavit setting up .the posting of notices “at or near” a schoolhouse, “at the place”■ of A. B., and “near” the residence of C. D., but containing nothing to indicate that these were public places, is insufficient to show a valid notice.
    2. Same.
    So, too, is an affidavit which fails to show that notice was posted in each school district affected by the proposed action, as required by said statute.
    3. Same — Jurisdiction.
    The posting of such notices, and the filing of proof thereof, are essential to the jurisdiction of the board of inspectors.
    4. Same — Certiorari.

      Certiorari will lie to test the validity of proceedings to organize a school district, where petitioner moves promptly, and before any expense has been incurred by the new district.

      Error to Ottawa; Padgham, J.
    Submitted October 8, 1902.
    (Docket No. 13.)
    Decided October 28, 1902.

      Certiorari by Cornelius Huys'er to review the action of the township boards of school inspectors of the townships of Zeeland, Olive, and Blendon in establishing a school district. From a judgment declaring the proceedings void, respondents bring error.
    Affirmed.

      P. H. McBride, for appellants.

      Diekema & Kollen, for appellee.
   Grant, J.

Certiorari to review the action of the boards of school inspectors in establishing a school district. Twenty-two freeholders of the township of Blendon petitioned the boards of school inspectors of the townships of Blendon, Zeeland, and Olive to organize a new school district in said' township of Blendon, to be known as “School District No. 8; ” the boundaries of said district to be formed from fractional districts No. 4 of Blendon and Zeeland, No. 4 of Zeeland and Blendon', No. 5 of Blendon and Olive, and No. 3 of Blendon. The inspectors met March 14, 1901, and proceeded to organize the district. A meeting of the voters of the district was called March 25th, and school officers elected.

The statute requires 10 days’ notice to be given by the township clerk of each township of the time and place of the meeting of the inspectors, by posting the same in three public places in the township, one of which must be in each of the districts to be affected by such alteration. 2 Comp. Laws, § 4653. The clerk of Zeeland township filed an unsworn statement that he posted the notices in three places. There is nothing in the statement made by him to indicate that these were public places. He stated that he posted one “at or near schoolhouse, district No. 4 of Zeeland and Blendon, one at the place of P. Yan Gelderen, and one at the place of C. De Jongh.” Another clerk returned that he posted one notice “near J. Wonninck and one near residence of Welleweerd.” These affidavits of posting contain nothing to show that these places were public places. It may not be essential to state that the places are public ones, but the description thereof must be such as to indicate that they were public places. These statements of posting might be entirely true, and yet the notices be posted in such manner and in such places as to entirely deceive the public, and to be no' compliance with the statute. Neither of the clerks of Blendon and Olive townships stated in his return that one of such notices was posted in the school district to be affected by the change. The posting of such notices and the proof thereof are essential to confer jurisdiction upon the boards of inspectors. Unless they have such proof before them, they act without jurisdiction, and their action is void. Graves v. School Inspectors, 102 Mich. 634 (61 N. W. 60), and authorities there cited.

It is urged that the writ of certiorari is not the proper remedy; citing Fractional School Dist. No. 1 v. Joint Board of School Inspectors, 27 Mich. 3; Jaquith v. Hale, 31 Mich. 430; Parman v. School Inspectors, 49 Mich. 63 (12 N. W. 910); People v. Gartland, 75 Mich. 143 (42 N. W. 687); Perrizo v. Kesler, 93 Mich. 280 (53 N. W. 391). Those cases do not control this. In most of those cases the writ was quashed because of delay in commencing proceedings, or failing to prosecute them. Meanwhile the districts had proceeded to complete their organizations, and had incurred expenses. In Jaquith v. Hale, proceeding was brought against the assessor of the school district to review errors, if any there were, to be found in the action of the township authorities. It was held that the remedy was unsuited to the case. In this case the relator moved with promptness. He notified the board at its first meeting, March 25th, that the proceedings were illegal, and he proposed to take steps to test them. The proceeding was commenced within 42 days. Meanwhile no expenses had been incurred, and no one can be injured by the application of this remedy. This case is controlled by Gentle v. School Inspectors, 73 Mich. 40 (40 N. W. 928); Fractional School Dist. No. 3 v. School Inspectors of Martin, 63 Mich. 611 (30 N. W. 198); Graves v. School Inspectors, 102 Mich. 634 (61 N. W. 60).

Judgment affirmed.

Hooker, C. J., Moore and Montgomery, JJ., concurred.


author: Moore, J.

text:
    PENINSULAR TRUST CO. v. CITY OF GRAND RAPIDS.
    1. Negligence — Dangerous Premises — Trespassing Children.
    The rule exempting a landowner from liability for injuries sustained by trespassers makes no exception in favor of trespassing children. Following Ryan v. Towar, 128 Mich. 468.
    2. Same — Death by Drowning — Liability op City.
    A city is not liable for the death of a child who, having entered its premises, adjoining a public street, through a hole in the fence inclosing the same, was drowned in a reservoir maintained thereon as a part of its waterworks system, though the surroundings were such as to be especially attractive to children.
    Error to superior court of Grand Rapids; Newnham, J.
    Submitted October 9, 1902.
    (Docket No. 30.)
    Decided October 28, 1902.
    Case by the Peninsular Trust Company, administrator of the estate of Ruby M. Behrend, deceased, against the city of Grand Rapids, for negligently causing the death of plaintiff’s intestate. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Lant K. Salsbury, City Attorney, and Ernest L. Bullen, Assistant City Attorney, for appellant.

      McKnight & McAllister, for appellee.
   Moore, J.

A reference to the accompanying plat will help to understand the situation.

The defendant is charged in the declaration with having kept and maintained a large reservoir as a part of its waterworks system. It is claimed also that, by reason of the construction, location, and appearance of this reservoir, “ it had a great tendency to and did excite the curiosity of, and was an attractive place for, children to play, many of whom frequented the same as a matter of childish curiosity.” The reservoir is so constructed that the top is between 20 and 25 feet above the streets. The outside of the reservoir is banked up with sufficient slant to be self-supporting ; the inside is of puddled clay and cobblestone, with a cement coating. The slope on the inside is approximately 45 degrees, and the capacity is estimated at 96,000,000 gallons. Around the entire property there was a tight board fence about seven or eight feet high where it is not on the wall. On the northeasterly side of the reservoir the outer base of the reservoir was supported by a stone wall, and at this point the fence was built upon the wall. The wall did' not continue all the way around the reservoir. Near one end of the stone wall the earth had been either dug out or washed out, making a hole under the fence.

On the 3d day of July, 1899, the deceased, Ruby M. Behrend, left her home at about 9 o’clock in the morning, and went away to play. One of her playmates told her and her companion that there were flowers “up there,” and about 11 o’clock Ruby, with a companion 10 years of age, left the traveled portion of the street, went through under the fence, climbed up the steep incline to the top of the reservoir, removed her shoes and stockings, and in attempting to wade in the water was drowned. The plaintiff, as administrator, brought this action against the city, and recovered a judgment of less than $400. The case is brought here by writ of error.

Several questions are discussed by counsel, but, as one of them is controlling, no reference will be made to the others. At the time of the trial of this case the opinion in Ryan v. Towar, 128 Mich. 463 (87 N. W. 644), had not been rendered. The writer of this opinion did not agree with the conclusion reached by a majority of the justices in Ryan v. Towar, but since it was filed it must be regarded as the law in this State in all like cases. Nearly all the cases cited in the able briefs of counsel filed in this case are referred to in one or the other of the two opinions filed in the case of Ryan v. Towar. The opinions are long and carefully considered. The case was decided so recently it is not necessary to repeat here what was said. I.do not think it possible to distinguish this case from that one.

The, judgment is reversed, and no new trial ordered.

Hooker, O. J., Grant and Montgomery, JJ., concurred.


text:
    DILLON v. SHIAWASSEE CIRCUIT JUDGE.
    1. Divorce — Discontinuance oe Suit — Nonpayment oe Solicitor’s Fee — Contempt.
    Where, after the court has made an order in a divorce case requiring the husband to pay a fee to the wife’s solicitor, but before any demand has been made on the hdsband for a compliance therewith, the parties become reconciled and discontinue the suit without the knowledge of their solicitors, the court has no power thereafter to adjudge the husband in contempt for failure to pay the fee in accordance with said order.
    2. Mandamus — When Lies — Order oe Contempt.
    An order adjudging a party guilty of contempt, and requiring him to pay a certain sum within 10 days or be imprisoned, is reviewable by mandamus; the remedy by appeal not being sufficiently expeditious.

      Mandamus by John Dillon to compel Steams F. Smith, circuit judge of Shiawassee county, to vacate an order adjudging relator to be in contempt of court.
    Submitted October 7, 1902.
    (Calendar No. 19,455.)
    Writ granted October 28, 1902.

      Watson & Chapman, for relator.

      John T. McCurdy, for respondent.
   Moore, J.

This is an application for a writ of mandamus to require the circuit judge to set aside an order adjudging relator to be in contempt of court for not obeying one of its orders. The record shows that on February 12, 1902, Susan Dillon filed a bill for divorce against relator, John T. McCurdy being her solicitor; and also filed a petition for alimony. On the 24th of February, 1902, the circuit judge made an order as follows:

“ It is ordered by the court that the said defendant pay to the said complainant the sum of five dollars per week temporary, alimony, payable weekly, from and after date hereof, during the pendency of this suit, or until the further order of this court; that he pay to John T. McCurdy, complainant’s solicitor in this case, the sum of fifty dollars; and that he also pay to complainant the sum of twenty dollars, to enable complainant to procure witnesses in said cause; said sums of fifty and twenty dollars to be payable as follows: One-half of said sum in twenty days from date hereof, and the remaining one-half in forty days from date hereof.”

The relator paid the weekly allowance and for witnesses, and $25 to the solicitor. On the 29th of April, 1902, Mr. and Mrs. Dillon became reconciled to each other, and went to living together as husband and wife. Without consulting their solicitors, Mrs. Dillon receipted to her husband in full, and both signed a stipulation discontinuing the suit, and filed it with the clerk of the court, and Mr. Dillon at the same time paid the court costs up to that date. May 7, 1902, Mr. McCurdy made a demand on Mr. Dillon for the payment of the unpaid portion of the solicitor’s fee, amounting to $25. It was not paid, and on the 17th of June Mr. McCurdy, without the knowledge or direction of Mrs. Dillon, filed a petition to have Mr. Dillon punished for contempt of court. The court made an order requiring Mr. Dillon to 'show cause why he should not be so punished. Upon the hearing Mr. Dillon set up the foregoing facts as a reason why he should not he punished. The judge thought they were not sufficient, and adjudged Mr. Dillon to be in contempt, and required him to pay within 10 days the $25, $3 costs for sheriff’s fees, and $10 solicitor’s fee on the motion, or, in default, that he be imprisoned in the county jail.

The authority of the court to make an order requiring the husband to pay any sums necessary to enable the wife to carry on or defend a divorce suit is found in section 8628, 3 Comp. Laws. In Parker v. Blighton, 32 Mich. 265, it was held that clients might settle cases without the knowledge or assent of counsel. In Wright v. Hake, 38 Mich. 525, it was said:

“It is suggested in the brief for defendants that the arrangement did not bind Merritt because not signed by his attorney. It is true that only the attorneys can manage a case, but it is equally true that the attorney cannot prevent his client making a compromise or settlement.”

There is nothing in section 8628, 3 Comp. Laws, which authorizes the court to make an order in a divorce proceeding that will prevent the parties'thereto from becoming reconciled and discontinuing the litigation. In this case, before a demand had been made upon the relator for a compliance with the order of the court, the case was discontinued. Under these circumstances it is difficult to see how any further order could be properly made therein. 12 Am. & Eng. Enc. Law (1st Ed.), 303; Stew. Mar. & Div. § 385; Chestnut v. Chestnut, 77 Ill. 346.

It is said:

“The order made adjudging relator herein guilty of contempt of court was a final order and judgment, from which relator had the right to appeal. Mandamus will not lie to review a final order and judgment, and relator has mistaken his remedy in this cause,” — citing cases.

This is the rule, but there is an exception to it, which was stated in Michigan Mut. Fire-Ins. Co. v. Wayne Circuit Judge, 112 Mich. 270 (70 N. W. 582), as follows:

“ To this rule an exception is made if the slowness of ordinary legal forms is likely to produce such immediate injury or mischief as ought to be prevented. Merrill, Mand. § 198; People v. Cass Circuit Judge, 39 Mich. 410; Talbot Paving Co. v. Detroit Common Council, 91 Mich. 262 (51 N. W. 933).”

The relator has brought himself within the exception.

The order will be made as prayed in the petition.

Hooker, C. J., Grant and Montgomery, JJ., concurred.


author: Montgomery, J.

text:
    OSMUN v. GALBRAITH.
    Estates oe Decedents — Administration — Parties Entitled — Trustee in Bankruptcy.
    Under 3 Comp. Laws, § 9324, providing that administration of the estate of an intestate shall be granted first to the widow, husband, or next of kin, “ or a grantee of the interest of one or more of them, or such of them, as the judge of probate may-think proper,” a trustee in bankruptcy of a daughter of decedent may be appointed administrator, notwithstanding the objection of decedent’s husband.

      Certiorari to Oakland; Smith, J.
    Submitted June 4, 1902.
    (Docket No. 2.)
    Decided November 11, 1902.
    Franklin B. Galbraith, as trustee in bankruptcy of the estate of Mary E. Young, petitioned for his appointment as administrator of the estate of Mary Ann Osmun, deceased. The petition was granted in the probate court, and William H. Osmun, Sr., husband of deceased, appealed to the circuit, and, on affirmance there, brings certiorari.

    Affirmed.

      Lillis & Beardslee, for appellant.

      Perry & Stockiuell, for appellee.
   Montgomery, J.

On the 7th day of March, 1901, Mary E. Young was adjudged a bankrupt by the district court of the United States for the Eastern district of Michigan. Franklin B. Galbraith was appointed trustee in bankruptcy. At the time of the adjudication Mary E. Young had an interest in the unadministered estate of her mother, Mary Ann Osmun. The trustee filed a petition in the probate court of Oakland county, setting forth these facts, and asking to be appointed administrator of the estate. The appointment was objected to by William H. Osinun, Sr., who was the husband of the deceased. The appointment was made, notwithstanding the objection, and an appeal taken from the order making the appointment to the circuit court for the county of Oakland, in which court the order was affirmed. The case is brought before us'for review on certiorari.

The statute (3 Comp. Laws, § 9324) provides that the parties in interest shall be entitled to administration in the following order:

First, The widow, husband, or next of kin, or a grantee of the interest of one or more of them, or such of them as the judge of probate may think proper, or such person or persons as the widow, husband, next of kin, or grantee may request to have appointed, if suitable and competent to discharge the trust;
‘ ‘ Second, If the widow, husband, next of kin, or grantee, or the person selected by them, shall be unsuitable or incompetent, or if the widow, husband, next of kin, or grantee shall neglect, for thirty days after the death of the intestate, to apply for administration, or to request that administration be granted to some other person, the same may be granted to one or more of the principal creditors, if any such are competent and willing to take it;
Third, If there be no such creditor competent and willing to take administration, the same may be committed to such other person or persons as the judge of probate may think proper.”

More than 30 days had elapsed after the death before the petition was filed, and it is doubtful whether the husband is in a position to complain of the appointment of any suitable person. See Wilkinson v. Conaty, 65 Mich. 620 (32 N. W. 841). But we think the case may well be determined upon the point'made by the plaintiff in error. It is contended that the petitioner, Galbraith, is not the grantee of the next of kin, within the meaning of this statute. We fail to perceive why not. Certainly the interest which Mary E. Young had in her mother’s estate passed by the assignment in bankruptcy to the trustee. He became a grantee of that interest, and, we think, is within the word, as well as the spirit, of the statute. This being so, we do not feel that we would be justified in interfering with the discretion exercised by the circuit judge.

The order will be affirmed.

Hooker, C. J., Moore and Grant, JJ., concurred.


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    WEBB v. PECK.
    1. Executors and Administrators — Accounting—Findings of Fact — Appeal.
    Findings of fact by the trial judge on conflicting evidence in an accounting by an executor will not be disturbed on appeal.
    2. Same — Commissions.
    Under-3 Comp. Laws, § 9438, providing for commissions to an executor “upon the amount of personal estate collected and accounted for by him,” it was proper, on an annual accounting by the executor of an estate consisting principally of notes and mortgages, a portion of which only had been collected, to allow commissions merely on the amount collected, rather than on the estate as inventoried.
    3. Same — Costs—Disoretion of Court.
    The discretion of the trial court in granting costs against an executor personally on an appeal from his accounting will not be interfered with unless abused.
    Error to Muskegon; Russell,-J.
    Submitted October 9, 1902.
    (Docket No. 33.)
    Decided November 11, 1902.
    William Peck presented his annual account as executor of the last will and testament of Ezekiel D. Webb, deceased. The account was allowed in the probate court, and Nathan H. Webb, a legatee, appealed to the circuit, where certain items were disallowed, and the executor brings error.
    Affirmed.

      Arthur Jones, for appellant.

      C. W. Sessions, for appellee.
   Moore, J.

Mr. Ezekiel D. Webb died July 15, 1898. William Peck was appointed executor of his estate. In September, 1898, the executor filed an inventory showing property belonging to the estate of the face value of $8,642.95. For some reason, no appraisal of this property was made. The executor filed an annual account, showing a balance in his hands of $7,122.12. No contest was made in the probate court, and the account was allowed. Some of the heirs at law, who claim to have had no notice of the hearing in probate court, appealed the case to the circuit court, where it was tried by the circuit judge, who disallowed some items of the account. Complaint is made of the action of the circuit judge, stated as follows by counsel: '

“1. An item of disbursements which appears in the account, and which reads: ‘Advancements made to N. H. Webb, to apply on legacies to him, and made at different times, $567.34.’ This item was wholly disallowed by the circuit court.
“2. An item of disbursements which appears in the account, and which reads: ‘ My collection fees, per statute, $226.42.’ This item was allowed at $97.12.
“3. Another item of disbursements, which reads: ‘ For additional compensation for services rendered, $200.’ This was wholly disallowed.
“Costs were awarded by the circuit court against the executor personally, and, while this may be discretionary, the executor contends that, if so, it was an abuse of discretion, which did him, personally, a very great wrong.”

The circuit judge made findings of fact and law, which, so far as they are important, are as follows:

“The said William Peck and Nathan H. Webb have had mutual, personal dealings, which in no wise pertained to the matters of said estate. Nathan H. Webb made the said Wiilliam Peck his banker, and deposited with him various sums of money. Mr. Webb also loaned to Mr. Peck, individually, various sums of money. Mr. Webb also withdrew from the custody of Mr. Peck different sums of money, and purchased from the Montague Hardware Company, of which Mr. Peck was manager, various articles of merchandise. The only account of these dealings kept by Mr. Peck was upon the books of the Montague Hardware Company. The account of these private dealings between Mr. Peck and Mr. Webb has not been liquidated, and there is a controversy between these parties concerning the same. The items making up said account do not pertain in any way to the administration of said estate, but relate solely to private dealings between Mr. Webb and Mr. Peck and the Montague Hardware Company.
“Up to the time of rendering his said first annual account, viz., August 25, 1899, said William Peck, as such 9xecutor, had collected the sum of $2,884.95 belonging to said estate, and no more.
“Said William Peck, as such executor, has rendered no extraordinary services for which he should receive extra compensation. * * *
“The item of disbursements contained in said account, ‘August 25, 1899, advancements made to N. H. Webb, to apply on legacies to him, -and made at different times, $567.34,’ should be, and hereby is, disallowed.
“ The executor is entitled to commissions in accordance with the statute upon the sum of $2,884.95, which has been collected and accounted for by him. Said commissions amount to the sum of $97.12. Said executor should be, and he is hereby, allowed as such commissions said Sum of $97.12; and the item of disbursements contained in said account, ‘August 25, 1899, my collection fees, per statute, $226.42,’ should be, and the same is hereby, disallowed.
“ The item of disbursements contained in said account, ‘August 25, 1899, for additional compensation for services rendered, $200,’ should be, and the same is hereby, disallowed.
“The contestant, Nathan H. Webb, should be, and he is hereby, awarded the costs of this suit against the said William Peck individually, and not against William Peck as executor, nor against said estate. Said costs shall be taxed, and execution may issue therefor against the individual property of said William Peck.”

As to the first item: Did Mr. Peck make advancements to Mr. Webb as legatee? The testimony was as conflicting as it could well be. Mr. Peck testified he did. Mr. Webb testified he did not. Mr. Peck claimed Mr. Webb gave him a receipt and voucher, which was not produced upon the trial, because Mr. Peck claimed it had been lost. Mr. Webb denied he had ever given such a paper, and said that, if Mr. Peck ever had a paper of that purport, it was a forgery. The judge saw the witnesses. He found that the dealings between the parties did not in any way pertain to the administration of the estate. In Gee v. Hasbrouck, 128 Mich. 509 (87 N. W. 621), the court said:

“Upon the argument it was urged by the appellants’ counsel that we should review the merits as contained in the findings of fact. On the other hand, appellees insist that the findings must be treated as final upon all questions of fact where there is dispute in the testimony. We are of the opinion that the latter is the correct practice, and must treat the findings of fact as conclusive where supported by testimony.”

There was an abundance of testimony upon which to base the conclusion of the circuit judge, and it will not be disturbed.

As to the second item: It is claimed the executor is now entitled to the statutory commission upon the estate as inventoried, even though many of the notes are not yet collected, and only a small portion of the estate has been distributed. The statute in controversy is section 9438, 3 Comp. Laws. It provides for commissions to the executor “ upon the amount of personal estate collected and accounted for by him.” The circuit judge allowed the commission for the full amount collected at the time the annual account was filed. There will be time enough to make further allowances if the executor becomes entitled to them when his further or final account is presented.

As to the item of $200 for additional compensation: The statute provides this may be allowed “for any extraordinary services, not required of an executor or administrator in the common course of his duty.” A charge of a lump sum of $200 was made for these services. No effort was made to itemize the account. The circuit judge found no extraordinary services had been rendered. There was testimony upon which to base this finding, and what we have before said disposes of this item.

The remaining question relates to the action of the circuit judge in granting costs against the executor personally. This is a matter of discretion, which we are not inclined to review unless we are satisfied the discretion has been abused. An examination of the record does not so satisfy us, but, on the contrary, the record fully justifies the action of the circuit judge.

The judgment is affirmed.

Hooker, C. J., Grant and Montgomery, JJ., concurred.


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    BUTTERFIELD v. ARNOLD.
    1. Negligence — Management oe Steamer — Defective Equipment — Evidence—Question for Jury.
    In an action for injuries caused by the breaking of a fender strap on a steamer as the vessel struck the dock, the question of defendant’s negligence in approaching the dock at too high a rate of speed, arid in using an unsound fender rope, held, under the evidence, to have been properly left to the jury.
    2. Same — Contributory Negligence.
    The question of the contributory negligence of plaintiff, who was struck by the fender while standing on the dock, was likewise for the jury.
    Error to Chippewa; Steere, J.
    Submitted October 9, 1902.
    (Docket No. 35.)
    Decided November 11, 1902.
    Case by Samuel Butterfield against George T. Arnold for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Henry Hoffman (E. S. B. Sutton, of counsel), for appellant.

      Oren, Webster & More and John W. Shine, for appellee.
   Montgomery, J.

The plaintiff recovered a verdict and judgment for damages in an action for negligent injury. Defendant brings error.

The defendant is the owner of the steam propeller Ossifrage, plying between Cheboygan and Sault Ste. Marie, and touching at Detour. The plaintiff is a dealer in fish, and was accustomed to furnish fish to the steward of defendant’s boat. On the 23d of August, 1897, he went down to the Watson Dock, so called, on noting the approach of the Ossifrage, for the purpose of taking an order. His evidence shows that he stood a few feet from the dock line, and was called to by the mate of the boat and requested to take the line; that, while in the act of doing so, the steamer came alongside. The force with which the steamer struck the dock broke the fender rope, and caused the fender to fly over against the plaintiff with great force, causing serious injuries. The declaration counts on two grounds of negligence: First, that the boat approached the dock with too great a speed and headway, thus causing the fender strap to break; and, second, that the fender strap was rotten, unsound, and unfit for the purpose for which it was used.

The circuit judge submitted the case to the jury in a charge which appears unobjectionable, if the case was a proper one for the jury to consider. It is contended, however, that a verdict for the defendant should have been directed. It is contended that no negligence was shown on the part of defendant, and that plaintiff was guilty of contributory negligence.

The evidence on the part of the defendant tended strongly to show that the fender strap was a new rope, which had been in use but a few days, and that the boat was properly managed. If this testimony cannot be said to have been contradicted, directly or indirectly, it would follow that no negligence was shown in this respect. We are impressed, however, that it is not the usual thing for the fender strap of a boat to break at every landing, thus causing the fender to fly onto the dock with great force, causing damage to persons or property in its way. The very fact that such a thing occurs suggests an inquiry, at least, as to whether there was fault in management or equipment. An examination of the record satisfies us that there was evidence justifying the inference that the defendant was negligent in each particular alleged. The testimony as to the condition of the rope was its condition and appearance. It was described as an old, dead line, together with the testimony of competent seamen that, under proper management, a new, strong strap would not part, — a statement which we should hope might be verified by experience.

As to the plaintiff’s contributory negligence: Dealing with the subject somewhat abstractly, it would be rather startling to say that one having business with an approaching steamer is guilty of negligence-if he approaches near enough to it to be struck by a projected broken part, in case such part is projected through mismanagement or fault in equipment. Defendant cites plaintiff’s testimony on cross-examination stating that it was dangerous where he stood; but, on redirect, plaintiff stated that, if the fender strap had been sound, there would have been no danger. We think the question of plaintiff’s contributory negligence was likewise a question for the jury.

Judgment affirmed.

Hooker, C. J., Moore and Grant, JJ., concurred.


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    LA FOND v. DETROIT CITIZENS’ STREET-RAILWAY CO.
    Street Railways — Injury to Passenger — Acts op Trespassers —Negligence.
    Plaintiff, a passenger on defendant’s street car, while passing around the car after alighting, was injured by catching her foot in a rope attached to the rear of the car by a trespasser. The rope had been on the car for some minutes, while the car was traveling about a mile and a half, but, on account of the darkness, was not discovered. On one other occasion a rope had been found attached to a car of defendant, but knowledge of the fact was not brought home to the conductor of the car in question. Held, that defendant was not guilty of negligence in failing by inspection to ascertain the presence of the rope and remove it.
    Error to Wayne; Carpenter, J.
    Submitted October 9, 1902.
    (Docket No. 31.)
    Decided November 11, 1902.
    Case by Marie La Fond against the Detroit Citizens’ Street-Railway Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Ira A. Lieghley and William W. Ferguson, for appellant.
    Brennan, Donnelly & Van De Mark, for appellee.
   Montgomery, J.

The facts appearing on the trial are summarized by the circuit judge as follows:

“Plaintiff, a passenger on defendant’s street car, alighted from that car at the intersection of Congress street and Joseph Campau avenue, and, as she passed around the car after alighting, her foot caught in a rope that was dragging, and she was seriously injured. The testimony abundantly proves that some boy who was in the habit of hitching sleds or cans or something of the sort — at least, that is the natural and necessary inference from this testimony — had left that rope attached there. Now, the question is whether there is any evidence of negligence on the part of the street-car company. The question is whether there is any evidence from which it can be inferred that they were negligent in not' discovering the rope and removing it. Bear in mind to what part of this car the rope was attached. It was not attached above, but below, the projection, which is practically level with the platform. Bear in mind that it was after dark; between 6:20 and 6:30 on the evening of January 12th; some time after dark. Of course, the only way a rope of this sort could be discovered would be by close examination. None of the men on the back of that car saw the rope until some one was struck by it, except the one who passed around it when he alighted. I think you would be justified in inferring from the testimony of Reid, who got on at the corner of Woodward avenue and Congress street, that the rope was on from Woodward avenue, from a mile and a quarter to a mile and a half; that it took ?£ minutes to go from Woodward avenue to this place; and, if it was on there, perhaps it was on some time longer. * * *
“ Now, the other suggestion is that, inasmuch as it has been shown to be a custom on the part of the boys on Congress and Baker streets, and upon the other streets upon which this car lin'e is operated, to hitch on, that precaution ought to have been taken. The testimony shows, from all the witnesses except two, that, as soon as the conductors discovered boys were hitching on, they stopped them. There is no custom, in other words, that permitted this, to be done. It is true, two witnesses testified that they had seen boys hitching there without the conductor stopping them, while half a dozen or more witnesses testified that the conductor always stopped them. The only inference I can draw from the testimony, then, is that it was the custom not to permit them.”

The circuit judge was of the opinion that no actionable negligence was shown, and directed a verdict for defendant. In this opinion we concur. The rope was no part of the equipment of the car, and was placed there by a trespasser. ^ The only fault which the plaintiff’s counsel attribute to the defendant is the failure to discover the fact of the trespass and remove the rope. As pertinently suggested by the trial judge, if it was incumbent upon the defendant’s employes to make an inspection every few blocks, or as often as every 7£ minutes, it is difficult to see why such inspection should not have been continuous. The testimony does not show that the conductor in charge of the car in question had any reason to expect that such a rope had been left dangling in the rear of this car. True, there was testimony that on one occasion a rope had been found attached to another car of defendant company, and was cut off; but the conductor of this car is not shown to have had any knowledge of it. And it was a circumstance so unusual that it cannot be held that its occurrence entailed upon the company the duty of providing for a special and continuous inspection to prevent a repetition of such a trespass. A similar question was considered in McCaffrey v. Railroad Co., 47 Hun, 404, which was ruled against the plaintiff. See, also, Fredericks v. Railroad, 157 Pa. St. 103 (37 Atl. 689, 22 L. R. A. 306); Jakoboski v. Railroad Co., 106 Mich. 440 (64 N. W. 461).

The judgment is affirmed.

Hooker, C. J., Moore and Grant, JJ., concurred.


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    CITY NATIONAL BANK OF LANSING v. STONE.
    Partnership — Continuance op Business by Survivor — Liability op Administrator.
    Where, by agreement between a surviving partner and the deceased partner’s administrator, the business is continued by the survivor with the property of the firm for the joint benefit of the parties, the administrator becomes a partner, and is liable as such for debts incurred in the conduct of the business.
    Error to Ingham; Wiest, J.
    Submitted October 10, 1902.
    (Docket No. 40.)
    Decided November 11, 1902.

      Assumpsit by the City National Bank of Lansing against Permelia L.. Stone and Harry L. Stone, alleged to have constituted the firm of W. B. Stone & Son, on certain promissory notes and an overdraft. Prom a judgment for plaintiff on verdict directed by the court, defendant Permelia L. Stone brings error.
    Affirmed.

      Smith & Hood, for appellant:
    Cited, on the main proposition, Wild v. Davenport, 48 N. J. Law, 129 (7 Atl. 295); Richter v. Poppenhusen, 39 How. Prac. 82; Avery v. Myers, 60 Miss. 367; Pitkin v. Pitkin, 7 Conn. 307; Stewart v. Robinson, 115 N. Y. 328 (22 N. E. 160); Bank v. Pennock, 2 Mona. (Pa.) 166; Dexter v. Dexter, 60 N. Y. Supp. 371.

      Rollin H. Person, for appellee.
   Montgomery, J.

This is an action on certain promissory notes made by the firm of W. B. Stone & Son, and to recover for an overdraft of the account of the same firm. The case is within a narrow compass, as the only meritorious question is whether the defendant Permelia L. Stone became a member of the firm. Certain questions relating to the rulings as to the admissibility of certain testimony become immaterial, inasmuch as the circuit judge, in directing a verdict for the plaintiff, rested his ruling upon the testimony given by the defendant Permelia L. Stone on this trial and on the trial of another case involving the same issue.

The firm of W. B. Stone & Son was originally composed of W. B. Stone and Harry L. Stone. W. B. Stone died on September 9, 1898, leaving Harry L. Stone, his only son, and Permelia L. Stone, his widow, who were the only persons, other than creditors, interested in his estate, and who were appointed to administer the estate. The business of the firm of W. B. Stone & Son was continued from September, 1898, until June, 1900. The question of the liability of Permelia L. Stone in this action is to be determined by ascertaining whether in what she did she made herself a member of the firm.

It is now well settled that the administrator, by tacitly leaving the assets in the hands of the surviving partner, does not incur liability as a partner. Nor does the receipt of profits of the business, in and of itself, constitute him a partner. Parsons, Partn. § 74, and cases cited. On the other hand, it appears to be as definitely settled that by an agreement to continue the business, either expressly or impliedly made, either for the benefit of the estate or of the executor, he does incur liability as a partner. Id. In the present case the testimony of Mrs. Stone, given on this trial, was as follows:

“ Q. What did you and Harry talk about in regard to this business ?
“A. I told him he better go on with it just as he had been doing.
‘ ‘ Q. What made you tell him that ?
“A. Because we thought it was the best thing to do, because we did not know anything else to do. We did not talk about any other plan. We talked it just as a son and mother would talk about things, with no one else to look to. We were the only heirs, each claiming to own the property, and talked over the matter about going on with the business, and concluded it was the best thing to do.
Q. And you told him to go on, did you ?
“A. I don’t know as I told him to go on. We thought it would be best to go on. He thought he could go on with the business, and work out of debt after a-while.
Q. The debts covered your property and his property, did they ?
“A. Well, it would naturally, I suppose. I did not expect it would take my property, though, at the time.
Q. But the debts you wanted to pay covered your property and his property ? Is that true ?
“A. Yes; there Avas a mortgage on it all. The understanding was that he was to pay the debts that were hanging over the firm, — pay the lumber debts; and we intended to sell the property as soon as we could, and pay the mortgage.
Q. Did you talk that all over between yourselves ?
“A. Well, we might have talked it over. It is hard to say just what we talked over. I presume we did. We talked over a good many things about all the business,— .all the property.
Q. Did you agree upon that, — come to an agreement between you; that is, both make up your minds to the same thing ?
“A. We never made any agreement about it.
Q. I mean, di'il you and he agree as to what was the best thing to do ?
“A. Yes; I suppose we did.
Q. And did he continue the business because of that agreement ?
‘A. I don’t think he continued under anything I said about it, because he knew better than I did about it. I did not know anything about it. I never had anything to do with any of the business. He and D talked it over, and “came to the conclusion that it was the best thing to do.
Q. And he went on in accordance with that conclusion, didn’t he ?
“A. Yes. I asked him for money when I needed it, and he gave it to me. I could not say it came from the firm.”

It is true, she also stated that she did not understand that she became a partner, but the test is whether her relations to the business were such as to constitute her a partner. As was said in Beecher v. Bush, 45 Mich. 188 (7 N. W. 785, 40 Am. Rep. 465):

“ It is possible for parties to intend no partnership, and yet to form one. If they agree upon an arrangement which is a partnership in fact, it is of no importance that they call it something else, or that they even expressly declare that they are not to be partners.”

In this case the testimony of defendant shows that Mrs. Stone, as well as her son, understood that, for an indefinite time, property owned by them jointly was to be used in the business, and that the assets of the old firm were to be continued in that business with a view to the mutual profit of the parties. Under the law, they became partners.

Judgment affirmed.

Moore and Grant, JJ., concurred. Hooker, O. J., did not sit.


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    CARR v. ST. CLAIR TUNNEL CO.
    1. Railroads — Injury to Ehployé — Flying Switches — Negligence.
    The practice of making “flying switches,” being a method in common use, does not constitute negligence as to employés,
    2. Same — Assumption op Risk.
    A railway employé who had assisted in making “flying switches” for eight days without objection assumed the risk of injury therefrom.
    Error to St. Clair; Thomas, J.
    Submitted October 10, 1902.
    (Docket No. 36.)
    Decided November 11, 1902.
    Case by William Carr against the St. Clair Tunnel Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.
    Plaintiff was employed by the Grand Trunk Railway Company as brakeman and switchman in its yards on the Canadian side of the defendant’s tunnel. The tunnel is a part of the railroad of the Grand Trunk, although the defendant, a separate corporation, constructed the tunnel and owns it. It was a part of plaintiff’s duty to assist, as brakeman, in running cars through the tunnel, from the summit on one side to the summit upon the other. After taking a train of cars through from the American to the Canadian side, if there was no train to be brought back, the engine would couple to a van, and the train crew would ride back in the van, -and would be left on a side track in the vicinity of where the next train was, which would sometimes be at the summit of the tunnel, and sometimes farther up in the. yards. When the van was brought over in that way, it was the custom to drop the van by making a “flying switch.” This had been the custom for nine years, — ever since the tunnel was constructed. This was done by the engine, while under good headway, slacking up; the brakeman, Weston, pulling the coupling pin; the engineer then, on a signal, going ahead over the switch with increased speed; and the switchman throwing the switch after the engine passed, thus sending the van onto another track.
    On the evening of January 11, 1900, the plaintiff rode over in the van with Weston, the other brakeman, Conductor Tinsley, and A. S. Begg, the general superintendent. On reaching the summit, Tinsley ordered the head brakeman, Weston, to make a drop of the van by a flying switch. This order was given in the presence of the plaintiff and the superintendent. Tinsley, on reaching the summit, jumped off at the telegraph station, as was his custom, to get orders. The engineer signaled the switch-man ahead, by four “ toots,” that he intended to drop the van by a flying switch. Weston went out of the forward door, and got down on the foot-board of the engine to pull the pin, but it was tight, and he could not pull it; and the engineer, supposing it was pulled, went ahead. The night was dark and very stormy, and the switchman, either not observing, or, on account of the storm and darkness and escaping steam, not being able to see, the van, and supposing it was cut off, after the engine passed threw the switch, which threw the forward wheels of the van onto another track while still coupled to the engine, derailing the van, and throwing the plaintiff off the forward platform, where he was standing, onto the ground; and the car wheels ran over his left arm, cutting it off near the shoulder, and otherwise severely injuring him. Mr. Begg, the superintendent, who was standing by the plaintiff’s side on the front platform, was thrown in through the door into the van. Plaintiff brought suit, alleging the practice of making flying switches to constitute negligence on the part of the company. At the conclusion of the testimony, the court directed a verdict for the defendant.

      John B. Mcllwain, for appellant.

      E. W. Meddaugh (Geer & Williams, of counsel), for appellee.
   Grant, J.

(after stating the facts). Making flying switches is a method in common use by the railroad companies of this country. It was not, therefore, negligence on the part of the defendant to do this work in the usual and customary way. 3 Elliott, R. R. § 1274; Schaible v. Railway Co., 97 Mich. 318 (56 N. W. 565, 21 L. R. A. 660); Pahlan v. Railway Co., 122 Mich. 232 (81 N. W. 103). Other courts have recognized this practice as existing in most pf the railroad yards in the country, and have therefore held that it does not constitute negligence as to employes. Hunt v. Hurd, 39 C. C. A. 226, 98 Fed. 683.

Plaintiff had assisted in making these flying switches for eight days previous to the accident, and made no objection. He therefore assumed the risk. Youll v. Railway Co., 66 Iowa, 346 (23 N. W. 736); Jolly v. Railroad Co., 93 Mich. 370 (53 N. W. 526); Kelley v. Railway Co., 53 Wis. 74 (9 N. W. 816); Fordyce v. Lowman, 57 Ark. 160 (20 S. W. 1090); Bengtson v. Railway Co., 47 Minn. 486 (50 N. W. 531); Coombs v. Railroad Co., 156 Mass. 200 (30 N. E. 1140).

Judgment affirmed.

Hooker, C. J., Moore and Montgomery, JJ., concurred.


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    NEWMAN v. MEDDAUGH.
    .Statute of Limitations — Evidence—Question for Jury.
    Whether the statute of limitations had run against plaintiff’s claim was properly left to the jury; the question depending on whether the summons was delivered to the sheriff for service on or before a certain date, on which point the testimony was conflicting.
    Error to Tuscola; Beach, J.
    Submitted October 15, 1902.
    (Docket No. 61.)
    Decided November 11, 1902.

      Assumpsit by Louis Newman against Stephen Meddaugh upon a promissory note. From a judgment for «defendant, plaintiff brings error.
    Affirmed.

      Frank $, Pratt (Abraham J. Randall and Byron L, Ransford, of counsel), for appellant.

      Quinn & Wixson, Atwood & Pulver, and G. P. Black, for appellee.
   Moore, J.

This action was commenced by summons •dated- September 30, 1901, and returnable December 1, 1901. Service was made on the defendant on the 1st’day •of November. The suit was brought upon a promissory note dated September • 22, 1894, due on or before October 1, 1895, upon which note no payments had been made. The plea of the general issue was interposed, with notice that the note was procured without consideration. Notice-of the statute of limitations was also given. The only defense the court allowed to go to the jury was the running of the statute of limitations.

The important question in the case is, Did the court err in submitting to the jury the question of whether the suit was commenced before the note was barred by the statute •of limitations ? On the part of the plaintiff it is insisted that what constitutes the commencement of a suit is a question of law, and that whether the facts of a case showed a suit properly commenced would likewise be a question of law. If there were no dispute about the facts, this contention would doubtless be true. It is conceded by counsel for the defendant, and the court so instructed the jury, that if the summons was delivered to the sheriff, for the purpose of having it served, on or before October 5, 1901, the statute of limitations would not run; but the question of when the summons was placed in the hands of the sheriff is in dispute. It is the claim of the plaintiff that it was given to him for service October 4th, while defendant claims the summons was not issued at all until after October 5th, and that it was not given to the sheriff until about October 15th. The local attorney for the plaintiff testified it was given to the sheriff October 4th. He does not testify when it was issued, but admits that, upon the date it was issued, the clerk of the court, at his request, dated it back. The trial judge allowed testimony to be given of the circumstances surrounding the issuance and service of this summons. The clerk and the sheriff were both sworn as witnesses. Neither of them is at all clear in his recollection as to when the summons was issued, nor when it was given to the sheriff. The trial court submitted the question, under proper instructions, to the jury, who rendered a verdict in favor of defendant. There was an abundance of testimony upon which to base this verdict.

The other questions have been considered, but we do-not deem it necessary to discuss them.

The judgment is affirmed.

Hooker, C. J., Grant and Montgomery, JJ., concurred.


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    VOSS v. CONNECTICUT MUTUAL LIFE-INSURANCE CO.
    Life Insurance — Beneficiaries — Protection of Insurer in Making Payment.
    Where a life-insurance policy was payable to the wife of the insured in case she should survive him, otherwise to her children, and, after the death of the insured, who survived his wife, the insurer paid the policy, in good faith, to a son of the wife, who had the policy in his possession, and who represented himself to be the only child, the insurer could not be compelled to pay again one-half of the policy to the children of a deceased stepson of the wife, though the insured had intended that such stepson should share in the policy.
    Error to Wayne; Brooke, J.
    Submitted October 15, 1902.
    (Docket No. 63.)
    Decided November 11, 1902.

      Assumpsit by Anna Yoss and others against the Connecticut Mutual Life-Insurance Company on a policy of insurance. From a judgment for defendant on verdict directed by the court, plaintiffs bring error.
    Affirmed.

      Thomas Hislop, for appellants.

      Moore & Goff, for appellee.
   Moore, J.

This case is brought here by writ of error. The subject-matter thereof, and all the parties thereto, except Joseph Engelking, were before this court in the case of Voss v. Insurance Co., 119 Mich. 161 (77 N. W. 697, 44 L. R. A. 689). A demurrer was interposed in that case. The declaration averred that Joseph Engelking was one of the children of Katharina Engelking. The demurrer was sustained because Joseph Engelking had not been made a party. After the decision in that case, an amended declaration was filed, in which Joseph Engelking was made a plaintiff. After the testimony was all in, the defendant requested the judge to direct a verdict in its favor for a number of reasons, which it is not necessary to set out here, when the following occurred in open court:

“ It is stipulated by the plaintiffs’ attorney that if, upon a motion for a new trial, the court becomes convinced that he should have directed a verdict at this time for the defendant, he may direct a verdict for the defendant which shall have the same force and effect as if directed at this time, and you can make a motion for a new trial should the jury find against you on the facts stipulated; and, if I conclude to set it aside and direct a verdict, the finding of the jury will be part of the record, and goes to the Supreme Court.
Mr. Goff: I,want to have my objection noted to the submission of the case in the form indicated by the court.”

Later a motion was made for a new trial. This motion was granted, and a verdict was directed in favor of defendant.

The case is now here after a trial upon the merits, and upon a very different record from that presented when it was here before. In granting the motion for a new trial, the circuit judge filed a written opinion, which states what is disclosed by the record, and from which we quote in part:

“ This is an action brought by the plaintiffs against the defendant company to recover under an insurance policy on the life of George Engelking; the plaintiffs being the children of George Voss, who was brought up by George Engelking and Katharina Engelking, his wife. The father of plaintiffs died in 1880. The insurance policy in question was issued on the 22d day of December, 1866, on the life of George Engelking, and was made payable to Katharina Engelking, or, in case of her death prior to death of insured, to her children. Katharina died May 12, 1886, and George died May 6, 1888. Joseph G. Engelking, a reputed son of George and Katharina Engelking, upon the death of his father, in 1888, furnished proof to the company of his father’s death, stating he was the only child and sole heir of Katharina Engelking. He also procured his appointment as administrator of the estate of Katharina Engelking, and on July 14, 1888, payment was made by the defendant company to Joseph G. Engelking in the sum of $1,400.43; being the amount in full of the policy, less notes and interest due by the insured thereunder. The amount of insurance was paid to Joseph G. Engelking as administrator, and he accounted to the orphans’ court in the city of Pittsburg in the month of May, 1889; and a decree of that court was made, determining that he was the sole next of kin of Katharina Engelking, and that the fund be turned over to him as such next of kin.
“ George Yoss, the father of the plaintiffs in this case, was an inmate of the Engelking family up to the time he was about 23 years of age. He was born in 1830; his father being Eberhard Heinrich Yoss, and his mother Wilhilmine Yoss. Wilhilmine having died, Katharina Diekmann married Eberhard Yoss; and after the death of Eberhard Yoss, and on February 24, 1846, she married George Engelking, the insured. At that time George Yoss must have been about 16 years of age. The family moved to Pittsburg in the year 1847. After the year 1854, George Yoss does not seem to have returned to Pittsburg. During his residence with the family he seems to have been regarded as one of the family, although, from the records produced, the records of his birth and the marriage of his parents and their death,- etc., it seems quite clear that he was not related by blood to either Katharina Engelking or her husband, George. * * *
‘ ‘ The case was started once before, at which time the plaintiff Joseph G. Engelking was not made a party. The defendant company demurred to the declaration on the ground that he was a necessary party, and on the case being taken to the Supreme Court the demurrer was sustained. The plaintiff therefore amended his declaration by making Joseph G. Engelking a party plaintiff. The testimony of Joseph G., taken in the case, shows that he is an unwilling plaintiff, having-been made a party without authority from himself, and frankly admitting the receipt by him of the entire amount paid by the company, and claiming that his representation to the company at the time of his mother’s death was truthful, and that he was and is the sole heir and next of kin of Katharina Engelking, deceased; that George Yoss was simply a foster brother of his own, and acquired no rights under the policy in question by the death of Katharina Engelking. A very anomalous condition is presented by the verdict in question, because, as the matter now stands, and if judgment were entered upon such verdict, the plaintiffs, including Joseph G. Engelking, would be entitled to recover from defendant company the amount of the verdict, in spite of the fact that one of the plaintiffs admits that he received in his own person the entire amount of said claim under the policy.”

It is true, it is now claimed by counsel that Joseph G. Engelking was not in fact the son of Katharina Engelking; but it was alleged in both the original and amended declarations that he is, and we think the proof is overwhelming of that fact. a

A great many interesting questions are presented, which we do not deem it necessary to discuss. This is not a proceeding in the nature of an interpleader to decide a contest between persons, each of whom claims to be entitled to the insurance, but it is a claim that though an insurance company has in good faith paid over the insurance in full to a person who answers the description in the contract of insurance, and who produces the policy of insurance, and is adjudged by the orphans’ court to be entitled to the fund, it may be compelled to again pay one-half of the insurance to the children of a person who does not answer to the description in the contract, because it is said the insured intended to have him share in the fund. Under the facts disclosed by this record, we think the trial judge should have directed a verdict in favor of defendant, without submitting the case to the jury.

The judgment is affirmed.

Hooker, G. J., Grant and Montgomery, JJ., concurred.


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    THOMAS v. WAGNER.
    1. Ejectment — Improvements — Claimant Under Tax Deed — Good Faith.
    Under 3 Comp. Laws, § 10995, permitting an unsuccessful defendant in ejectment to recover for improvements, provided his occupancy was under color of title and in good faith, a defendant claiming under a void tax deed may recover for improvements, if he occupied in good faith, believing he had a valid title, though he knew that some interest was claimed by plaintiff.
    2. Same — Trade Fixtures — Question por Jury.
    Whether buildings erected by a lessee to carry on the ice business became a part of the realty, so as to entitle him to compensation therefor, as improvements, under 3 Comp. Laws, § 10995, on being defeated in ejectment, or were trade fixtures, held, under the evidence, to have been a proper question for the jury.
    Error to Hillsdale; Chester, J.
    Submitted October 14, 1902.
    (Docket No. 49.)
    Decided November 11, 1902.
    Ejectment by Sara' H. Thomas against Charles L. Wagner, the Wagner Lake-Ice Company, and Frank Van Blacum. From a judgment for plaintiff, but allowing defendants compensation for improvements, plaintiff brings error.
    Affirmed.

      Bacon & Yerkes and W. J. Sampson, for appellant.

      A. L. Guernsey and Grant Fellows, for appellees.
   Moore, J.

This is an action of ejectment brought by plaintiff to recover possession of certain lands in the county of Hillsdale, State of Michigan. Plaintiff recovered the land, but defendants were given a judgment in the sum of $11,000 for improvements on the property. The defendants claimed title to the land under a sale of said lands for taxes for the year 1893. The court charged the jury that this tax deed was absolutely void, and that defendants had no title to the land. It is claimed that after this tax title was obtained, and before the improvements were made, defendants had notice that the grantor of plaintiff claimed to be the owner of the land. It is the claim of defendants that, before the improvements were made, they submitted their title to reputable attorneys, and were advised it was good, and that they acted in the utmost good faith in building ice-houses upon this property, which are claimed to have cost somewhere between $16,000 and $17,000. The plaintiff has brought the case here by writ of error.

The first important question involves a construction of section 10995, 3 Comp. Laws. It is the claim of counsel that, at the time the Wagner Lake-Ice Company took the lease of these premises, they had knowledge that some interest in the premises was claimed by plaintiff, and although they may have taken counsel as to the validity of their title, and honestly believed their title good, they are not occupants in good faith, within the terms of the statute, and are not entitled to recover compensation for the improvements made; citing cases. This statute received a construction in Miller v. Clark, 56 Mich. 337 (23 N. W. 35), and in the recent case of Petit v. Railroad Co., 119 Mich. 492 (78 N. W. 554, 75 Am. St. Rep. 417). See, also, Griswold v. Bragg, 19 Blatchf. 94 (6 Fed. 342). The trial court charged the jury upon this question in substantial accord with these cases.

The second important question is,'Were the improvements of such a character as to be within the statute ? It is the claim of the plaintiff that this question ought to be answered in the negative;, that as the buildings were put up for the express purpose of enabling the ice company to carry on the ice business, and were not adapted to the needs of the agriculturist, and belonged to the defendant the Wagner Lake-Ice Company, they never became a part of the realty, but are trade fixtures, and not such improvements as the statute contemplates. The principle involved was discussed in Petite. Railroad Co., supra. Under the proofs, the question became one for the jury, under proper instructions from the court, which we think were given.

The other assignments of error relate to the admission of testimony and the charge of the court. While a few sentences of the charge, standing by themselves, might be adversely criticised, when they are read in connection with the rest of the charge we do not think it can be said the jury was misled.

The judgment is affirmed.

Hooker, C. J., Grant and Montgomery, JJ., concurred.


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    JASKULSKI v. CITIZENS’ MUTUAL FIRE-INSURANCE CO.
    1. Fire Insurance — Transfer op Property — Mutual Company —Validity op By-Laws.
    A provision in the by-laws of a mutual fire-insurance company, that any transfer of the property insured, without written notice to the company, shall invalidate the policy, is reasonable and valid.
    2. Same — Parties to Contract — Interest op Mortgagee.
    Where a fire-insurance policy was issued to the owner of the property, and on it was indorsed, “Loss, if any, payable to E., mortgagee, as his interest may appear,” the mortgagee had no contract with the 'company, avoiding the effect of a condi- ' tion in the policy rendering it void on a transfer of the property without written notice to the insurer.
    Error to Kent; Wolcott, J.
    Submitted October 15, 1902.
    (Docket No. 59.)
    Decided November 11, 1902.

      Assumpsit by Eranciska Jaskulski against the Citizens’ Mutual Fire-Insurance Company of Kent, Allegan, and Ottawa Counties on a policy of insurance. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.
    This is a suit upon an insurance policy to recover for a loss by fire. The policy was issued in 1895 to one Joseph Navrot, the owner of the land. The dwelling upon it was insured for $250. One Eckert had loaned Navrot some money, and taken a mortgage upon this land to secure it. Mr. Eckert and Mr. Navrot were both present when the policy was issued to Navrot. Indorsed upon it was, “Loss, if any, payable to Frank O. Eckert, mortgagee, as his interest may appear.” Mr. Navrot died in April, 1900, having paid all assessments up to his death. The policy provided that, “in case of death of the insured, the insurance should not lapse if' within 60 days his proper representative should take out a new policy, the old policy being surrendered and arrears paid.” The court held that this provision was waiyed by the defendant, and no question is raised upon it.
    After Mr. Navrot’s death an assessment was made, which Mr. Eckert paid, taking a receipt in Mr. Navrot’s name. An administrator was appointed upon Navrot’s estate, who, under the authority of the probate court, sold and conveyed the land to plaintiff and her husband on November 21, 1900. About the same time Mrs. Navrot executed a quitclaim deed to plaintiff and her husband for her interest in the premises. Meanwhile Eckert foreclosed his mortgage. Plaintiff and her husband redeemed from the foreclosure sale, and at the same time Mr. Eckert assigned his interest in the policy to the plaintiff. The house was destroyed by fire December 13th. The bylaws provided:
    “ The transfer, incumbering, or vacating of said property, increased hazard, or any change in the relation of the parties which would alter the rights of the parties with reference to said contract, without notice in writing to the secretary of said company, will avoid the policy. ”

      No notice of this sale and transfer was given to the defendant.
    6r. A. Wolf, for appellant.

      Burlingame, Belclen & Orton, for appellee.
   Grant, J.

(after stating the facts). Insurance companies may lawfully contract with the insured that the contract of insurance shall be void upon a conveyance of the title to the property without notice to, and the assent of, the insurer. Insurance companies may decline to insure the purchaser and grantee, while willing to assume the moral hazard of the person originally insured. This provision was therefore valid. Plaintiff seeks to avoid the result by insisting that this policy was in fact issued for the benefit of Mr. Eckert, and that he had a contract with defendant. This contention is settled against the plaintiff by Van Buren v. Insurance Co., 28 Mich. 398; Hartford Fire-Ins. Co. v. Davenport, 37 Mich. 609; Minnock v. Insurance Co., 90 Mich. 236 (51 N. W. 367). The contract of insurance was made with Mr. Navrot alone. He alone could bring suit upon it. He alone was liable for the premiums. Counsel for plaintiff cites Phenix Ins. Co. v. Omaha Loan & Trust Co., 41 Neb. 834 (60 N. W. 133, 35 L. R. A. 679), and other similar cases. In that case the policy contained a mortgage slip by which it was agreed that, “as to the interest of the mortgagee, the insurance should not be invalidated by any act or neglect of the mortgagor or owner of the property.” The mortgagor had forfeited his rights in the policy. It was held that the mortgagee had not, but that this clause gave him an independent right of action against the company. No such clause is found in the present policy.

The direction of the court was correct, and the judgment is affirmed.

Hooker, C. J., Moore and Montgomery, JJ., concurred.


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    FREUD v. WAYNE CIRCUIT JUDGE.
    1. Trespass — Change of Venue — Construction of Statute.
    By the terms of 3 Comp. Laws, § 10316, actions for trespass on land are to be brought in the county where the land is situated. Section 10317 enacts that, when the defendant is not an actual resident of such county, the action may be prosecuted in any county where he may be found; provided that, whenever any such cause shall be pending in any circuit court other than in the county where the trespass was committed, said court “may,” on the application of either party, accompanied by an affidavit showing in what county the lands are situate, change the venue to the latter county, and “shall ” make all necessary orders for the removal, and the court to which said cause shall be so removed "shall” proceed to hear and determine the same. Held, that the provision as to change of venue is mandatory, on the situation of the land being shown.
    2. Mandamus — Vacation of Order — Practice.

      Mandamus will not lie to compel a circuit judge to vacate an order unless application for such relief has first been made to him.

      Mandamus by Leopold Freud to compel Morse Robnert, circuit judge of Wayne county, to vacate an order granting a change of venue.
    Submitted October 16, 1902.
    (Calendar No. 19,594.)
    Writ denied November 11, 1902.

      Keena & Lightner, for relator.

      James H. Lynch, for respondent.
   Montgomery, J.

The relator brought an action in trespass against Strathearn Hendrie on the 19th of April, 1902. A declaration was filed, alleging the trespass to have been committed in the county of Oakland, and issue joined. The defendant made an application to the circuit court for the county of Wayne for a change of venue to the county of Oakland. This motion was heard before respondent, and granted, on the ground that the statute (section 10217, 3 Comp. Laws) required sucb action upon showing that the trespass was committed in the county of Oakland; and the question presented by this application is whether the provisions of this section authorizing a change of venue are mandatory or permissive.

Prior to the enactment of this, section, in its original form in 1861, actions for trespass on land were local, and were brought only in the county where the trespass was alleged to have been committed. 3 Comp. Laws, § 10216; Haywood v. Johnson, 41 Mich. 604 (2 N. W. 926). In 1861, however, an act was passed providing, in effect, that “all cases of trespass on lands, and all cases of trespass upon the case for direct or consequential damages on account of injury to personal property, when the defendant is not an actual resident of the county in which such lands are situate, * * * may be prosecuted and maintained at law in any county where such defendant may be found.” This continued to be the state of the law until 1883, when by an amendment a proviso was annexed to this provision of the statute, which is now the proviso embodied in section 10217, which reads as follows:

“Provided, that, whenever any such cause shall be pending in any circuit court other than in the county where such trespass or such injury was committed, said court may, on the application of either the plaintiff or defendant therein, accompanied by an affidavit stating specifically where such lands are situate, or where such personal property was situated at the time of committing such injury, change the venue of and certify and remove said cause to the circuit court of the county where such lands are situate, or where such personal property was situated at the time of committing of such injury, and direct the issue to be there tried, and shall make all necessary x’ules and orders for the removal of said cause, and all matters relating thereto; and the circuit court to which said cause shall be so removed shall proceed to hear and determine the same, and execution may thereupon be had, in the same manner as if the same had been originally prosecuted in said court.”

It will be noted that the language of the statute is that, upon an application of either the plaintiff or defendant, the court may change the venue, and certify and remove the cause to the circuit court for the county where the lands are situate, and direct the issue to be there tried, and shall make all necessary rules and orders for the removal of the cause, and all matters relating thereto. It is the contention of the relator that the word “may” implies that the authority is permissive. While conceding that the word “may” is often held to be mandatory, it is argued that, as used in this statute, it should be held permissive.

We think otherwise. It will be noted that the word “shall” is employed when dealing with the requirement that orders and rules for the removal of the cause shall be made. But, more than this, the section provides in terms by what application and upon what showing the court may act. There is no implication that a counter showing is intended or to be permitted, and we think the legislative intent that, upon this showing being made, a transfer of the cause shall follow, is clear.

It has been held that, under section 10105 et seq., the applicant, upon showing the facts stated in the statute, is entitled of right to have the cause transferred. That statute provides by the first section that upon showing the relationship of the circuit judge, or his interest as a party, the cause may be transferred to some other circuit. It provides in the second section that the party desiring to have the cause transferred may apply to the circuit court commissioner; and by section 4 that, being satisfied of the disqualification of the circuit judge, the commissioner shall grant an order of transfer to some other county. The statute is amplified somewhat more than is that under discussion, but this proviso is that the court may, on the application of either plaintiff or defendant, transfer the cause; and, after stating what such application shall contain, it is provided that the court shall make the necessary rules and orders for the removal of the cause. The former statute has been twice before this court, and has been held to be mandatory. Pack v. Alcona Circuit Judge, 74 Mich. 28 (41 N. W. 850); Grostick v. Railroad Co., 96 Mich. 495 (56 N. W. 24). We think the proviso of section 10217 is equally so.

A question of practice is raised in the brief of counsel for respondent, which would be sufficient to dispose of the case were the point insisted upon. No application was made to the circuit judge to vacate the order in question. Proper practice requires that, before an application is made to this court, such application shall be made. However, as the case is fully briefed, and presents a question of some importance, we have thought better to dispose of it on its merits. '

The application will be denied.

Hooker, C. J., Moore and Grant, JJ., concurred.