text:
    SPRINGER v. CITY OF DETROIT.
    1. Municipal Corporations — Claim: por Personal 'Injuries— Presentation — Limitation op Actions.
    A city cannot set up as a defense to an action for personal injuries that the plaintiff has not brought himself within an amendment of its charter requiring “existing causes of action” to be prosecuted within a specified time after the amendment takes effect, where, by other provisions of the charter, it is made a sufficient defense to any such action that it was brought before the common council had a reasonable time to investigate and pass upon the claim, and the delay in the particular case was occasioned by the investigations on the part of the council.
    3. Same — Estoppel.
    In such case the council will be assumed to have placed its own interpretation upon what constituted a reasonable time in view of the circumstances, and the city is estopped to contend that, because of its action in so prolonging its investigations, suit might have been maintained by the plaintiff upon his claim before the council had finally passed upon it.
    Error to Wayne; Carpenter, J.
    Submitted June 15, 1898.
    Decided July 18, 1898.
    Case by Matilda L. Springer against the city of Detroit for personal injuries. From a judgment for plaintiff, ■defendant brings error.
    Affirmed.

      Charles Flowers and C. D. Joslyn, for appellant.

      Fdward S. Crece and C. H. Freeman, for appellee.
   Moore, J.

The plaintiff recovered a judgment for damages because of injuries received upon' a defective sidewalk. The defendant appeals the case here, and contends the statute of limitations had run against the claim. Some time ago plaintiff sued the city, and the case was heard in this court. It is the case of Springer v. City of Detroit, 102 Mich. 300. At that time no verified claim had been presented against the city before the suit was brought. There was a charter provision requiring such claim to be presented, and it was provided:

“It shall be a sufficient bar and answer to any action or proceeding in any court for the collection of any demand or claim against said city that it has never been presented to the common council for audit or allowance, or, if on contract, that it was presented without said affidavit, and rejected for that reason, or that the action or proceeding was brought before the common council had a reasonable time to investigate and pass upon it.” Charter of Detroit, chap. 5, § 17.

It was held the presentation of the claim to the council was a condition precedent to bringing a suit to recover. The decision was rendered in October, 1894.

The record shows the plaintiff presented her claim for the injury alleged in the declaration in this cause, to the common council of the defendant, for audit and allowance, in November, 1894, and from time to time testimony was duly presented as to such claim; and such claim was considered by the common council committee on claims and accounts from time to time, a final hearing being had on March 3, 1896, on which day the testimony was presented to such committee in full, and the matter was then submitted for their determination. On May 12, 1896, the committee reported to the common council a disallowance of the claim, which report was accepted and adopted. This suit was begun on the 18th day of June, 1896. The court charged the jury that the action was not barred by the statute of limitations.

The charter of the city of Detroit was amended by adding section 46, which reads as follows :

“No action shall be brought against said city, nor any of its boards, commissions, or officers, for any negligent injury, unless it be commenced within one year from the time the injury was received, nor unless notice shall be given in writing, within three months from the time of such injury, to the head of the law department, or to his chief assistant, of the time, place, and cause of such injury, and of the nature thereof. The provisions of this-section shall not be a bar to a suit for any injury for which there is now a lawful cause of action, but for every such injury suit shall be commenced within six months; from the time when this act shall take effect. ” Act No. 463, Local Acts 1895.

This amendment took effect September 1, 1895.

It is by virtue of this section it is urged the statute of limitations has cut off the right of action. It is said on the part of the city that, even though the claim is pending and undecided before the council, the plaintiff must bring her suit within six months after the amendment took effect, or lose her right of recovery. We have already quoted the charter provision which was construed in Springer v. City of Detroit, supra, where it was held no aotion or proceeding could be maintained until the verified statement had been presented to the council. The same provision gives the common council a reasonable time in which to investigate the claim and to pass upon it. It is evident there could be no lawful cause of action until these conditions had been complied with. Who shall say what constitutes a reasonable time? In a small town,, where there would be only an occasional case of this character, and the witnesses would be accessible, much less time might be a reasonable time than in a large town, where there were many claims to be investigated, and where the witnesses were scattered, or, as in this case, four years had elapsed after the alleged injury before the investigation was entered upon. There is nothing to indicate but the investigation was pursued in good faith, and that the delays were at the request of the city itself. It ’ does appear affirmatively that there was a full hearing of the claim before the committee after the six months had expired, and that some days thereafter the committee reported to the council a disallowance of said claim, which report was adopted by the council. The committee and the council, by their acts, have placed their interpretation: upon what in this case, with its surroundings and circumstances, was a reasonable time. The plaintiff acted upon their interpretation, and presented her witnesses before the committee. We do not think now, when the action of the city has carried the claim beyond six months after the amendment took effect, it can be said by the city a lawful cause of action existed until the council acted upon the investigation made. The plaintiff might have urged the council were delaying beyond a reasonable time; but the council cannot be heard to say that, though they were acting, they were not acting within a reasonable time, and therefore the action cannot be maintained.

In Westchester Fire Ins. Co. v. Dodge, 44 Mich. 420, it is said a claim under a fire-insurance policy does not mature until the company has decided whether it will exercise the right to rebuild, if such a right is reserved. In this case it is also held that, where the proofs of loss were furnished within a reasonable time before the end of the period fixed in the policy for bringing suit, the right to sue cannot be cut off by the company withholding its decision upon the proofs until that period has expired, even though the time allowed for examining the proofs would have consumed it.

In the case of Voorheis v. People’s Mutual Benefit Society, 91 Mich. 469, there was a provision in the policy that no suit should be sustainable in any court unless the suit was commenced within nine months after the death of the person. The suit was not brought until after the nine months had expired. The delay had been caused by negotiations looking to a settlement. In disposing of the case this language was used:

“ The time limited for the commencement of the action could not commence to run until after the cause of action accrued, and the action did not accrue until after the furnishing of the proofs of loss. But beyond this time it was extended by the negotiations for settlement, and overtures made by the defendant company looking to a settlement. The company could not delay the party entitled to bring suit, by promises of payment and overtures for settlement, beyond the period fixed for bringing the suit, and then set up in its defense that the action was not brought within the limit of time stated in the contract.”

We have, already seen there was no lawful cause of action, within the meaning of the statute, until a verified claim had been presented to the council, and a reasonable time given them to investigate, and decide what the city would do. Both parties treated the investigation as though made within a reasonable time, and, as the delay was caused by the investigation, the city cannot set it up as a defense in this action.

Judgment is affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, O. J.

license: Public Domain

text:
    PEOPLE v. SMITH.
    1. Grand Jury — Challenge—Trial.
    On a trial under an indictment by a grand jury, the accused can avail himself of no objections going to the competency of a grand juror other than those to which; under the statute (2 How. Stat. §§ 9496, 9497), he is limited when held to answer to such jury, viz., • that the juror is prosecutor or complainant.
    2. Same — Indictable Oeeense.
    A violation of the state liquor law (Act No. 313, Pub. Acts 1887) is an indictable offense, since the statute does not appoint a particular remedy, or provide a particular method of procedure, exclusive of indictment.
    Exceptions before judgment from Berrien; Coolidge, J.
    Submitted June 16, 1898.
    Decided July 18, 1898.
    Charles A. Smith was convicted of violating the liquor law.
    Conviction affirmed.

      O’Hara & O’Hara, for appellant.
    G. M. Valentine, Prosecuting Attorney, for the people.
   Grant, O. J.

Respondent was indicted by a grand jury of Berrien county for keeping his saloon open on Sunday, contrary to section 17 .of the state liquor law (3 How. Stat. § 2283e), tried, and convicted. Two questions are presented: (1) Was the grand jury a legal body? (2) Is the violation of the liquor law of the State an indictable offense ?

The statute is conclusive of the first question. The objections relate to irregularities in the drawing of the jury. The statute specifies what shall be a ground of challenge, viz., that a juror is prosecutor or complainant. It expressly prohibits a challenge on any other ground. 2 How. Stat. §§ 9496, 9497. The question is discussed by Mr. Justice Morse in People v. Lauder, 82 Mich. 133, authorities cited, and statute quoted. An objection prohibited by the statute when the grand jury is impaneled cannot be valid when the party is put upon trial under the indictment found. There was no fraud or willful disregard of the law, or even an indication that competent jurors were not secured, or that respondent was prejudiced.

Upon the second point counsel cite no authority. The following cases sustain the right to proceed by indictment: Peoples v. Stevens, 13 Wend. 341; People v. Brown, 16 Wend. 561; State v. Meyer, 1 Spears, 305; Keller v. State, 11 Md. 525 (69 Am. Dec. 226). The rule is thus stated by Russell: “Where the statute creates a new offense, by prohibiting and making unlawful anything which was lawful before, and appoints a particular remedy against such new offense by a particular sanction and particular method of proceeding, such method of proceeding must be pursued, and no other.” 1 Russ. Crimes (Internat. Ed.), 201; 10 Enc. Pl. & Prac. 351. Act No. 313, Pub. Acts 1887, does not appoint a particular remedy or provide a particular method of procedure. It leaves open either method.

Conviction affirmed.

The other Justices concurred.


author: Long, J.

text:
    PEOPLE v. GOULD.
    1. Real-Estate Brokers — Collections—Agency.
    R. purchased real estate, taking title- in his wife’s name. Subsequently he put the property in the hands of a real-estate broker, who sold the same on credit, and secured the purchase price by a note and mortgage, which he drafted, running to the wife of R. Thereafter the mortgagee executed a discharge, and R. forwarded it to the broker, who received payment in full from the mortgagor. Held, that the broker could not claim that in the collection he was the agent of R., and not of R.’s wife.
    2. Embezzlement — Evidence—Instructions.
    An instruction permitting the conviction of a respondent for embezzling the proceeds of a mortgage collected by him, although he received the money before the date of the embezzlement charged in the information, if he held the money at that 'time as agent for the owner, and within six months thereafter appropriated the same to his own use, is justified by a letter from the respondent after the collection, but before the date charged, stating that the mortgagor would like . to have the mortgage run for the time being, and a letter written within six months after such date, purporting to inclose interest on the mortgage.
    Exceptions before judgment from Jackson; Peck, J.
    Submitted June 16, 1898.
    Decided July 18, 1898.
    Ralph B. Gould was convicted of embezzlement.
    Conviction affirmed.

      James W. Blakely, for appellant.

      Fred A. Maynard, .Attorney General, and Elmer Kirkby, Prosecuting Attorney, for the people.
   Long, J.

Respondent was convicted of embezzlement. At the time the offense is claimed to have been committed, the respondent and his father, Andrew J. Gould, were doing a real estate and loan business in the city of Jackson, under the firm name of A. J. Gould & Son, but, previous to the payment made upon which the respondent was convicted, the father had removed to Tennessee, and the respondent continued the business under the firm name. It appears that several years ago one Alfred K. Rawson purchased certain real estate in the city of Jackson, taking the title in the name of his wife, Sylvia A. Rawson. Rawson and his wife moved to Missouri some eight or ten years ago. Mr. Rawson put the property into the hands of A. J. Gould & Son, who consummated a sale of it in June, 1890, to William H. Elliott, for $2,000, the sum of $1,200 being paid in cash, and the $800 secured by note and mortgage running to Sylvia A. Rawson. The money and note and mortgage were forwarded to Alfred 3L Rawson. May 3, 1893, Sylvia A. Rawson executed a discharge of the mortgage, and Mr. Rawson forwarded it to A. J. Gould & Son. On May 20th following, the respondent delivered this discharge to Mr. Elliott, and received from him $203, the balance of the money due; all the rest of the money due on the mortgage having been paid by him to A. J. Gould & Son prior to May 3, 1893. The $800 was never paid over either to Mr. or Mrs. Raw-son. On July 26, 1893, the respondent wrote Mr. Rawson that Mr. Elliott would like to have the mortgage run until September. On October 20, 1893, he again wrote Mr. Rawson, inclosing draft for $48, saying, ‘ ‘ It being for a year’s interest on the Elliott mortgage. ” Mr. Rawson died in March, 1897. In August of that year, Mrs. Raw-son came to Jackson, and demanded the interest on the mortgage, which was paid by the respondent. She then made a demand for the principal, and, the respondent failing to pay it, she made complaint against him for embezzlement, setting up that he was her agent in the collectioñ and misappropriation of the money. The case was submitted to the jury under a very fair charge. A verdict of guilty was returned. The case comes to this court on exceptions before sentence.

1. Counsel for respondent claims that the proofs negative the theory that respondent was the agent of Sylvia A. Rawson, and show that he was the agent of her husband, Alfred K. Rawson.

The mortgage collected was in the name of Sylvia A. Rawson, belonged to her, and she executed the discharge thereof. This mortgage was drawn by the respondent himself, and the discharge came to him executed by Sylvia A. Rawson, and he delivered it to Elliott, and received the money thereon. It clearly appears that, while Alfred K. Rawson was doing the business for his wife, ■she owned the mortgage, and that in the collection of it the respondent acted for her, and was her agent.

2. It is said that the proofs do not disclose any act of respondent showing that the money was converted by him on the date charged in the information, or within six months thereafter, and that, therefore, the respondent should have been discharged.

2 How. Stat. § 9421, provides that, on prosecutions for embezzlement, “evidence may be given of any such embezzlement committed within six months next after the time stated in the indictment.” In People v. Donald, 48 Mich. 491, — being a prosecution for embezzlement, — it was held that under this statute an information for embezzlement could not be sustained by evidence of acts committed before the time stated in the information. This construction was given by the supreme court of "Wisconsin to a similar statute. State v. Cornhauser, 74 Wis. 42.

On the trial, after the people had rested, counsel for respondent moved the court that the respondent be discharged, for the reason that no evidence had been given showing any act of embezzlement on August 24, 1893,— the date charged in the information, — or within six months thereafter. The court thereupon permitted the prosecution to read in evidence the following letter:

“Jackson, Mich., October 20, 1893.
“A. K. Rawson, Esq.,
“Jefferson City, Mo.
Dear Sir: We herewith inclose draft on New York for $48, less exchange, being for a year’s interest on the Elliott mortgage. Very respectfully,
“A. J. .Gould & Son.”

The court overruled the motion to discharge, and charged the jury:

“By the undisputed testimony, this money, if paid to the respondent at all, was paid on May 20, 1893, before the time charged in the information. Now, I charge you that if you find from the evidence, beyond a reasonable doubt, that this money was in fact the money of Mrs. Rawson, and that respondent was her agent; that the money was paid to him as her agent, and was received by him as such; and that he held the money, as such agent of Mrs. Rawson, on August 24, 1893, or within six months thereafter, and the embezzlement was committed of it by him on August 24th, or within six months thereafter, and while the relation of agent to' Mrs. Raw-son continued, and the conditions I have stated existed, * * * that the case here should be regarded as complete, notwithstanding the money was so paid to and received by the respondent before August 24, 1893. * * * If you are satisfied from the evidence, and beyond a reasonable doubt, that the appropriation of the money to his own use, with the intent essential to constitute the crime of embezzlement, occurred after the 24th day of August, and within six months after that date, you should regard this essential element of the crime charged as being well proven.”

The only objection which counsel makes to this charge is that there was no evidence in the case to support it, or in any way to show the embezzlement after August 24th.

We think the letter of October 20, 1893, connected with what had been written by respondent in July previous, has a tendency to show that fact. The létter óf July shows that respondent may have had it in mind to appropriate the money to his own use, as he there stated that Elliott desired to have the time extended on the mortgage till in September, when, in fact, he had already received it. Had Mr. Rawson called for the payment of the money at that time, it is possible it might have been paid over to him by the respondent. But on October 20th he had evidently made up his mind to appropriate it, and sought to put off inquiry by sending the interest.

Counsel for respondent claims, however, that the letter of October 20th was not identified as having been written by respondent. We have carefully examined the testimony of Mr. Elliott, and think the identification of the letter is sustained by that.

The court below is advised to proceed to judgment.

The other Justices concurred.


author: Moore, J.

text:
    PEOPLE v. CARREL.

    Intoxicating Liquors — Obstructing View of Bar — Hotels.
    That a bar is in the same room as an hotel office does not take it out of 3 How. Stat. § 3383/4, requiring that all obstructions to the view from the street shall be removed during the times at which the law requires places kept for the sale of liquor to be closed.
    Exceptions before judgment from Allegan; Padgham, J.
    Submitted June 16, 1898.
    Decided July 18, 1898.
    Isaac W. Carrel and Chester Carrel were convicted of -violating, the liquor law, in that they obstructed the view -of their bar from the street.
    Conviction affirmed.

      Samuel D. Clay and David Stochdale (Everett D. Comstock, of counsel), for appellants.

      Fred A. Maynard, Attorney General, and Fidus E. Fish, Prosecuting Attorney, for the people.

       Rehearing denied September 37, 1898.

   Moore, J.

The respondents are keepers of an hotel in Dorr, Allegan county, and are also engaged in the sale of intoxicating liquors. Their bar is upon one side of a barroom, which room is also used as the office of the hotel. This office has windows upon .two sides, through which persons from the street could command a view of the bar. The respondents were convicted of- having, between 9 o’clock at night and 7 o’clock in the morning, not removed the curtains, screens, partitions, and other things that obstructed the view, from the street, of the bar or place where the liquors were sold and. kept for sale. After a trial they were found guilty, and bring the case here by appeal.

The only question involved in the case is whether, where a bar is kept in a barroom which is also used as an hotel office, the curtains or screens to the windows of such a room must be raised or removed so as not to obstruct the view of the bar, or place where the liquor is sold, from the street. Section 31, Act No. 313, Pub. 'Acts 1887 (8 How. Stat. § 2283/4), reads as follows:

“During the time when, by the provisions of this act, places where liquor is sold or kept for sale must be closed, all curtains, screens, partitions, and other things that obstruct the view, from the sidewalk, street, alley, or road in front of or at the side or end of said building, of the. bar or place in said room where said liquors are sold or kept for sale, shall be removed. Any person who shall violate any of the provisions of this section shall, upon conviction thereof, be punished as provided in section seven of this act.”

The language of the statute is plain, simple, and unambiguous. It does not make exception in favor of a barroom which is also used as an hotel office. The purpose . to be accomplished by the statute is discussed in People v. Kennedy, 105 Mich. 75.

The conviction is affirmed.

The other Justices concurred.


text:
    SIMEK v. LODGE NO. 86 OF THE BOHEMIAN SLAVONIAN BENEVOLENT SOCIETY OF THE UNITED STATES.
    1. Benefit Societies — By-Laws—Expulsion of Members.
    The by-laws of a benefit society provided that fines imposed on members should be added to the dues, that members should be notified of arrearages, and that ‘ ‘ the expulsion of a member shall take place for the following offenses: (a) A member who has not paid all of his dues and fines at the monthly meeting.” A fine having been imposed on a member, it was added to his dues, and, not being paid after notice, he was expelled. Held, that the expulsion was valid.
    2. Same — Fines—Ratification of'President’s Act.
    The question whether a benefit society ratified the action of its president in imposing a fine upon a member becomes immaterial if an order of expulsion for nonpayment of the fine is so ratified.
    S. Same — Notice of Expulsion — 'Waiver.
    A member of a benefit society waives the requirement of the by-laws that a notice of expulsion shall be sent by registered letter, where he receives an unregistered letter, and acts upon it by appealing to the grand lodge from the order of expulsion made by the subordinate lodge.

      Certiorari to. Wayne; Donovan, J.
    Submitted June 28, 1898.
    Decided July 18, 1898.

      Mandamus by John Simek to compel Lodge No. 86 of the Bohemian Slavonian ^Benevolent Society of the United States to restore relator to membership in the society. From an order granting the writ, respondent brings certiorari.

    Reversed.

      Henry N. Brevoort, for relator.

      William B. Jackson, for respondent.
   Long, J.

At a regular meeting of the respondent lodge, June 5, 1897, the relator was fined the sum of one dollar by the president of the lodge for not obeying the call to order then and there made by the president in the presence of the members of the lodge, which the respondent now claims was lawfully imposed in accordance with, and by virtue of, the constitution and by-laws then in force in that order. The relator having refused to pay such fine, the same was added to his dues and assessments. Having thereupon refused to pay his dues.and assessments by reason of said fine having been added, he was expelled from the lodge. Relator then appealed from such order expelling him to the grand lodge, where the action of lodge No. 86 was affirmed. It is claimed by respondent that this was the tribunal of ultimate appeal.

Relator filed his petition in the Wayne circuit court for a mandamus to compel the respondent to reinstate him in the lodge. Respondent answered the order to show cause. The issues raised by the petition and answer came on to be heard before Judge Donovan in the Wayne circuit court. Respondent introduced in evidence the constitution and by-laws of the order, the records of the lodge relating to the imposing of the fine and expulsion of relator, the record of the appeal, and the action of the grand lodge. Testimony was also taken in the cause by relator and respondent. March 26, 1898, the court granted the mandamus. The case is now brought into this court by writ of certiorari.

Section 2, art. 7, of the constitution provides:

“The fines and reprimands by the president shall be determined by the by-laws of the subordinate lodges.”

Section 4, art. 7, provides:

“The expulsion of a member shall take place for the following offenses: (a) A member who has not paid all of his dues and fines at the monthly meeting. * * * ”

Section 4 also provides that a member—

“Shall be notified of his arrearage by the financial secretary, and if, after such notice, he fails to pay his indebtedness at the following monthly meeting, he is expelled.”

Section 5, art. 7, provides:

“All fines imposed upon members shall be recorded in a special book, and, if not revoked, shall be added to the dues of such members.”

It appeared on the hearing of the cause in the court below that the by-laws of the lodge were printed in the Bohemian language, and a translation made, which appears in the record before us. Such by-laws provide, substantially, that any member of the lodge shall be liable to a fine of one dollar, “who, during the meetings, does not preserve order, or who does not obey the warning of the chairman.” The record of the meeting shows that a fine of one dollar was imposed upon the relator for disobeying the chairman when called to order. It was shown that he did not pay his fine. It therefore appears from the record that the relator was lawfully fined one dollar, which he refused to pay. This fine was added to his dues, after having been duly recorded in the special book, as required by section 5, art. 7, of the constitution, and the fine has never been revoked. Relator was notified of the amount due the lodge for the fine and dues, as required by subsection a, § 4, art. 7, of the constitution. This notice was in writing, and it was shown that it was received by relator, and at the following monthly meeting he was expelled.

The court below seems to have had some doubt as to the explicitness of subsection a, § 4, art. 7, of the constitution, in providing under what circumstances a member should be expelled from the order. We think the fair interpretation of this section is that the member shall be expelled from the lodge and the order for the offenses enumerated in the by-laws, and the relator was found guilty of the violation of the by-law above set forth.

Counsel for relator contends that the action of the president was not ratified by the lodge. The order of expulsion was, however, ratified. The record of the meeting of July 31, 1897, shows that the expulsion was ratified.

It is also contended that the notice of expulsion sent to relator was not sent as the by-laws require; that is, by registered letter. The letter was, however, received and acted upon by the relator. He appealed to the grand lodge after the notice was received by him.

We are satisfied that the president acted within the power conferred by the by-laws, and that it was the duty of the relator to pay his fine, if he desired to retain his standing in the lodge.

One other point is suggested, and that is that the relator tendered the money, including the fine, to the secretary, before the time of expulsion. The record does not show this fact. All that is claimed is that the relator went there, as he claims, to pay the money, but the president would not give him the password, and he therefore could not get into the lodge, and the president told him he was no longer a member.

The order of the circuit court granting the mandamus must be reversed, and the mandamus denied.

The other Justices concurred.


text:
    BLITZ v. FIELDS.
    Mechanics’ Liens — Contract Price — Pro Rata Distribution.
    Under the mechanic’s lien law (Act No. 179, Pub. Acts 1891, as amended), a subcontractor, materialman, or laborer is entitled to a lien only for his pro rata share of the contract price» where the same is less than the cost to the contractor.
    Rehearing, on application of defendant, of case reported in 115 Mich. 675.
    Modified and affirmed July 18, 1898.

      Moore & Moore, for complainant.

      James H. Pound, for defendant.
   Long, J.

This case is reported in 115 Mich. 675. Since the case has been published, a rehearing has been granted. Upon a further investigation of the case, it is found that one of the questions raised by counsel for defendant was overlooked. It appears that the whole contract price was $1,500, and added thereto was $23 to complete the building, or a total of $1,523. Mr. Fields had paid the contractor, for the subcontractors and material men, the whole amount of the contract price; that is, $1,523. He made these payments in full, in the belief that the Blitz bill had been paid by the contractor, to whom he had paid the money for that purpose. These payments were made before he had any notice that the Blitz bill had not been paid. If the amount of the Blitz bill of $157.81 be added to the amount already paid out by Fields, it would amount to $1,680.81; so that, under the rule laid down in Fairbairn v. Moody, 116 Mich. 61, 65, Mr. Blitz would be entitled to only 1523-1680.81, or 89 per cent., of his claim, which would amount to $139.45, instead of the amount allowed in the former opinion, of $157.81. This difference of $18.36 will be deducted from the complainant’s former decree, which, so modified, will be affirmed. No costs of this court will be allowed to either party.

The other Justices concurred.


author: Per Curiam.

text:
    DOUD v. MACKINAC CIRCUIT JUDGE.
    Mandamus — Dissolution of Injunction.

      Mandamus ,will not be granted to compel the dissolution of a preliminary injunction, where the petition does not show that the court abused its discretion in refusing to dissolve it.

      Mandamus by James Doud to compel Oscar Adams, circuit judge of Mackinac county, to dissolve a preliminary injunction.
    Submitted July 12, 1898.
    Order to show cause denied July 18, 1898.

      M. V. & R. A. Montgomery, for relator.
   Per Curiam.

Relator claims that he was duly elected a member of the school board of school district No. 1 of Mackinac Island at the regular election held July 12, 1897, and that his election was duly announced; that he duly qualified and acted as such member. September 20, 1897, one Emerick, a member of said board, holding over by reason of the failure of his duly-elected successor to qualify, filed a bill in chancery to restrain relator from interfering with the school-house or school property, and from interfering with the management and control of the other alleged officers. Relator answered said bill, denying all material averments, and moved to dissolve the preliminary injunction which had been granted. That motion was denied October 5, 1897. Relator now asks for the writ of mandamus to compel respondent to set aside the injunction.

"We do not find any statement in the petition which would justify us in holding that the court abused its discretion in such matters.

Order to show cause denied.


author: Hooker, J. Hooker, J.

text:
    PENINSULAR SAVINGS BANK v. WARD.
    1. Highway Taxes — Validity.
    A vote at a township meeting, ordering 1 per cent, to be spread upon the tax roll for highway purposes, cannot, where that amount was actually spread upon the roll, be treated as a vote of $ of 1 per cent, in money, and a vote of highway labor as to the balance, in order to avoid the effect of 1 How. Stat. §§ 1326,1327, which restrict the money tax for highway purposes to -J- of 1 per cent., but permit an assessment of highway labor at the rate of one-half day on §100 valuation.
    2. Same.
    Nor can it be presumed in such case that a portion of the tax spread was authorized by the board of supervisors under 1 How. Stat. § 483, subd. 15, providing that the board may authorize townships to raise money, by a vote of the electors, for the building or repairing of highways.
    3. Same — State Roads — Repairs—Authority oe Board oe Supervisors.
    The board of supervisors has no authority to raise a tax for the purpose of repairing, through its own committees or members, State and Territorial roads, thereby invading the jurisdiction of highway commissioners and overseers, whose duty it is to keep them in repair, even if the board has power to vote money for the repair of such roads under any circumstances. •
    4. Tax Sales — Validity op Decree — Date oe Hearing.
    Under section 68 of the tax law of 1893 (Act No. 206, Pub. Acts 1893), authorizing substituted service of notice of hearing of the auditor general’s petition for the sale of delinquent lands, and providing that if it shall be made to appear to the court, within five days after the day fixed for hearing, that any person, without fault on his part, has been prevented from filing objections to the tax, further time may be granted / for that purpose, a decree of sale is void as to persons who did not appear, or otherwise waive the right to apply for further time, where it was rendered, and an adjournment taken, on the day following that fixed for the hearing.
    5. Same — Collateral Attack — State Bids.
    A tax deed cannot be attacked collaterally upon the ground that the'lands were held by the State by virtue of a State bid at the time of the filing of the auditor general’s petition, and were therefore improperly included therein under section 61 of the tax law, as construed in Connecticut Mut. Life Ins. Co. v. Wood, 115 Mich. 441.

    Error to Presque Isle; Kelley, J.
    Submitted June 15, 1898.
    Decided July 18, 1898.
    Rehearing granted December 28, 1898.
    Reargued February 15, 1899.
    Former opinion approved July 11, 1899.
    Ejectment by the Peninsular Savings Bank against Arthur Ward and Charles H. Fults. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Bacon & Palmer (Brennan, Donnelly & Van De Mark, of counsel), for appellant.

      Cahill & Wood, amici curiae, on rehearing.

      Lot Nevius and Smurthwaite & Fowler, for appellees.
   Hooker, J.

The plaintiff is admitted to have been the owner of the government title to the premises in question. The action is ejectment, and the defendants claim under tax deeds for taxes for the several years 1883, 1884, 1885, 1886, 1888, 1889, 1890, 1891, 1892, and 1893. The court directed a verdict for the defendants. Hence, if it be found that one of said tax deeds is valid, the judgment should be affirmed. It is conceded that those for the taxes of 1883, 1884, 1888, 1889, and 1890 are void.

Two points are raised upon the tax deed for the taxes of 1885, viz.:

1. That the highway tax was excessive.
2. That there was no apportionment of the State tax.

The record of the annual township meeting shows the following:

“The annual report of the township clerk was then read, and the following amounts were ordered to be spread upon the tax roll for the year 1885; that is to say: One per cent, for general township purposes, one per cent, for highway purposes, one-half per cent, for bridge loan.”

The statute then in force (1 How. Stat. § 1326) provided that the commissioner of highways should report to the township board, at the annual meeting, an estimate of the amount of highway labor necessary, and the improvements necessary to be made in the highways and bridges during the year, and the amount of money tax that should be levied therefor, beyond the estimated labor. The statute restricts the labor to one-half day on $100 valuation, and the money tax to 50 cents upon such valuation. Section 1327 provides that a majority of the electors present may determine the amount of labor and money tax, within these bounds. As has been seen, the electors voted a money tax of 1 per cent, for highway purposes. It is urged that this was no more than it was within their power to raise, and that one-half of it should be treated as a vote of highway labor, and the remainder a money tax, in which case neither would be excessive. The record shows that the entire amount was spread, and if we might assume that no labor was done or commuted, which is improbable, we should still be confronted by the fact that the vote shows that the electors directed that amount to be spread upon the roll. We cannot conclude, therefore, that any part of it was intended as a vote of highway labor. It is also suggested that we -may assume that a part of the amount spread was a tax authorized by the board of supervisors, under 1 How. Stat. § 483, subd. 15; but we think, in view of the vote of the township, that' the presumption is to the contrary. '

We consider it unnecessary to discuss the question upon the apportionment.

The tax of 1886 is attacked upon the ground that $1,000 was raised upon the following resolution:

“ Because the board of supervisors passed the following resolution: ‘Resolved, that the sum of $1,000 be raised by tax for the current year, and that this sum be expended upon the State and Territorial roads within,the county, and that each member of this board be made the agent of this board to superintend the expending of the sum of $100 thereof, and to designate the place or places where the same shall be expended, but to place at least 50 per cent, of said amount within the townships represented by them, respectively.’”

It is contended that the resolution should have designated the road or roads upon which it was to be expended, and that it was not competent to apportion it out to the several supervisors to expend, according to their judgment.

We infer from this resolution that it was the aim of the board to repair the Territorial and State roads. Sections 9 and 11 of article 10 of the Constitution provide:

“The board of supervisors of any county may borrow or raise by tax one thousand' dollars for constructing or repairing public buildings, highways, or bridges; but no greater sum shall be borrowed or raised by tax for such purpose in any one year, unless authorized by a majority of the electors of such county voting thereon.” “The board of supervisors of each organized county may provide for laying out highways, constructing bridges, and organizing townships, under such restrictions and limitations as shall be prescribed by law.”

In Attorney General v. Board of Sup’rs of Bay Co., 34 Mich. 46, it was held that the power of the board, under these provisions, was limited by the statute. 1 How. Stat. chap. 17. Subdivision 7, § 11, of said chapter (compiler’s section 483), authorizes the board to raise money by tax for any of the purposes named in the act, but restricts it to $1,000 per year for the purpose of repairing highways, etc. The restriction does not purport to confer any power, and the power to repair roads must be sought elsewhere. Section 497 authorizes the board to cause to be laid out, established, altered, discontinued, or opened all State and Territorial roads. The three following sections pertain to this power, and it has been held that these four sections limit the powers given by section 11 of article 10 of the Constitution to Territorial and State roads. See People v. Highway Com’rs of Nankin, 15 Mich. 347; Attorney General v. Board of Sup’rs of Bay Co., 34 Mich. 46. So far we find no authority for the expenditure of money by way of repairs upon State or Territorial roads, and our attention is not called to any statute conferring it. The duty of repairing these roads is upon the township. 1 How. Stat. § 1321. In Attorney General v. Board of Sup’rs of Bay Co., supra, it is said:

“Taxes and loans, when authorized to be raised by any public body, must be raised under the implied condition that they are to be applied to the public uses under the control or care of that body. They cannot be raised for the purposes or uses of others, unless such a power is plainly given, and such a power cannot be given for all purposes. The highways and roads are put under their control by the Constitution, not absolutely, but under legal restrictions. Those .legal restrictions have confined them to State and Territorial roads. Other roads are put under other officers, to avoid a clashing of jurisdictions. The county board can have no occasion to raise money for other than its own roads, and must exercise its own judgment in expending it. ”

The law plainly imposes upon townships the burden of repairing these roads, and it does not seem to have ever required or permitted counties to keep them up. They are State roads, not county roads; and the State has not imposed the duty of maintaining them upon counties, though it did allow the counties to construct them. Whether this may now he done at county expense, in view of section 1321, we need not consider. But the power to repair appears to be conceded by counsel, and as we have not the aid of a discussion of this question, and may have overlooked some statute or reason leading to a different conclusion upon this point, we do not decide that the board may not raise money for the repair of such roads. At all events, we are satisfied that the hoard of supervisors had no legal authority to raise this tax for the purpose of repairing, through its own committees or members, State and Territorial roads, thereby invading th8 jurisdiction of highway commissioners and overseers, whose duty it is to keep them in repair. We must therefore hold that the deed for the tax of 1886 was void.

The deed for the tax of 1891 is said to be void for several reasons. A discussion of one will suffice. The day set for the hearing of the auditor general’s petition was November 14, 1893, — the second day of term. The decree was made and court adjourned on the loth. This proceeding is governed by the act of 1893. Section 66 of the law provides that—

“If, within the first five days after the day fixed in such notice for the hearing of such petition, it shall be made to appear to the court that any person has been prevented from filing objections to any tax, without fault on his part, such further time may be granted for that purpose as may seem proper, not exceeding five days.” Act No. 206, Pub. Acts 1893.

It is urged that this is but an irregularity; that jurisdiction of the person was acquired by the publication, and that, though the decree might be vacated in a direct proceeding, it cannot be attacked collaterally; and that it is like a judgment entered upon a premature default.

Our decisions make a distinction between cases where personal service is obtained, and those of substituted service. In the latter the judgment is void if the statutory requirements are not followed. Thus, in attachment cases it has been held that the premature filing of a declaration, or the want of a valid default, rendered the judgment a nullity. See Steere v. Vanderberg, 67 Mich. 536; Nugent v. Nugent, 70 Mich. 56. We are constrained to say that this avoids the decree as to those who have not appeared, or otherwise waived the right to apply for further time.

The deeds for the taxes of 1892 and 1893 are said to be void for the reason that the lands were not subject to sale, inasmuch as it appears upon this record that, at the time the petition was filed, they were held by the State by virtue of a State hid. If that was true, they should not have been included in the petition; but this question cannot be raised collaterally. The decree has determined the contrary. Cole v. Shelp, 98 Mich. 56; Kneeland v. Wood, 117 Mich. 174; Muirhead v. Sands, 111 Mich. 487. The only way to reach such questions is in a direct proceeding, or possibly in equity, under proper circumstances.

It follows that the judgment of the circuit court was correct, and it is affirmed.

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

ON REHEARING.

Hooker, J.

The opinion filed in this cause upon the original hearing will be found at page 88, ante, and the case is there made to turn upon tax deeds for the taxes of 1892 and 1893. It was contended that these were void, for the reason that, at the times the respective petitions were filed to foreclose the lien of the State for the taxes for those years, the land was held by the State, having been bid in for the tax of 1891. The subject was not discussed by counsel for the plaintiff in their brief, further than to claim that the proceedings were void, under the case of Connecticut Mut. Life Ins. Co. v. Wood, 115 Mich. 444. The opinion attempted to distinguish the cases; that being a proceeding to set aside the sale and cancel the deed, while this is ejectment. It was said that the deed could not be thus attacked collaterally. The case was reheard upon this point, it not having been discussed before.

Whether or not the lands in controversy were, at the time the petition of the auditor general was filed, lands previously bid off in the name of the State, and thus held, was a question of fact. The court could not take judicial notice of it, yet, should it be proven, it would become the duty of the court to dismiss the petition as to such lands, because the act indicates that it was not the purpose of the legislature to have them sold. The law says that such lands “ shall not be included in the petition,” and counsel say that “the owners of such lands have a. right to rely upon their not being included.” It is urged that this takes all such lands out of the jurisdiction of the court, and that there can be no valid decree against such lands, for the court had no jurisdiction of the subject-matter.

It is a common saying that the proceedings of a court are void where there was no jurisdiction of the subject-matter. Thus, a court of equity could not render a judgment in assumpsit or ejectment, or adjudge one guilty of homicide, and punish him criminally for the offense. A justice cannot render a valid judgment for over $100 in a case of tort, nor can he make orders relating to the administration of estates of deceased persons. Instances might be multiplied. In all of these cases, where the want of jurisdiction appears on the face of the proceedings themselves, any court may treat them as void. And it will be found that most, if not all, of the authorities cited by counsel in support of the contention that this judgment was void, rather than voidable, are such cases.

Cooley, Const. Lim. (6th Ed.) 491, says, “A court has jurisdiction of any subject-matter if, by the law of its organization, it has authority to take cognizance of, try, and determine cases of that description.” Where there is a want of it, consent cannot confer it. But we have not such a case. It will hardly he pretended that this decree would be void if the defendant had appeared and defended upon the ground relied on, and the court had found the fact against him. But, where the defect does not appear npon the face of the record, the rule is different. A justice has no jurisdiction over civil actions for libel, and he has no jurisdiction in replevin when the value of the property exceeds $100. It goes without saying that any attempt to render a judgment for libel will appear upon the record. The same may not be true in the replevin case. The affidavit and writ may state the value aS'$100. Yet the property may actually be worth $1,000, and it may be so proven, yet the justice may render a judgment for the plaintiff for nominal damages. The effect is that the plaintiff succeeds in getting an adjudication in replevin concerning property worth $1,000 in justice’s court. No one doubts that the defendant’s only remedy is by a direct proceeding. He cannot treat the judgment as void, or attack it collaterally upon the ground that the justice had no jurisdiction of the subject-matter. True, that issue was not raised by the pleadings nor upon the trial; the defendant may not have even been served with process, or may not have appeared, or there may have been no testimony tending to show that the property was not worth more than $100; but it will be considered a matter necessarily involved in the adjudication, and therefore not subject to collateral attack. Nevertheless the fact remains that, under the law, the j ustice had not jurisdiction of the subject-matter, and the defendant’s right was to a trial elsewhere. The only appreciable difference between such a case and this is that in the replevin case the affidavit alleges that the property is not worth more than $100, while here it is not alleged that the State does not hold the land on a State bid. But that is not conclusive of the question, nor does it follow that it was raised by the pleadings or passed upon at the trial. Indeed, it cannot be raised upon the trial, under the general issue, to oust the court of jurisdiction, and damages to the amount of $500 may be given if return is waived. Henderson v. Desborough, 28 Mich. 170. Apparently, the court considered the question waived, which is not consistent with the idea that it acquired no jurisdiction. We can hardly suppose that the court meant that the filing of a proper affidavit placed the question of jurisdiction beyond attack. A plea in abatement might raise such an issue, but, in the absence of such an issue, the judgment would be good, and could only be reversed by an appeal, and a plea to the jurisdiction, or some proceeding equivalent thereto.

Another such case is found in Wisconsin. A Wisconsin statute fixed the limit of a justice’s jurisdiction in replevin at $200. The affidavit alleged the value at less than $200, but on trial it was found to exceed $200. The court said:

“If the affidavit on which the writ of replevin issued had not stated the value of the chattels, or had stated it over $200, the justice would have taken no jurisdiction, whatever the value might be in fact, and the whole proceeding would have been coram non judice. But, because the affidavit stated the value under $200, it gave the justice jurisdiction to issue the writ and to entertain the action, whatever the value of the chattels might be in fact. His jurisdiction of the action rested on the affidavit, independently of the value of the chattels in fact, until his judgment should determine the value. If that had found the value not to exceed $200* the jurisdiction conferred by the affidavit would have continued for all purposes, whatever the value might be in fact. When that found the value to exceed $200, the jurisdiction of the action, derived from the affidavit, ceased for all purposes, except the statutory judgment of abatement, independently of the value in fact. But that determination ousted the jurisdiction only thenceforth; it did not operate to defeat the jurisdiction theretofore conferred by the affidavit,— to issue the writ and to entertain the action. Further jurisdiction of the action on the merits ceased, not by the mere fact that the value exceeded $200, but by the judicial determination of the fact. Until such determination, the value stated in the affidavit was conclusive of the jurisdiction.” Darling v. Conklin, 42 Wis. 478, 480.

"Van Fleet, Coll. Attack, § 60, says:

“ In a court of limited jurisdiction in "regard to value of property, if the alleged value is within the limit, the court will have jurisdiction, although the actual value may exceed the limit; and the court may determine that the value is too great, but, after that fact is determined, the court simply loses jurisdiction to proceed further. It does not lose it from the beginning, so as to make all parties trespassers, as it would if its jurisdiction depended upon the fact of value.”

But we must conclude from all this, where the jurisdictional defect does not appear upon the face of the record, not that the court has jurisdiction of the subject-matter, but that the assumption of such jurisdiction, though under, a mistake of fact, and the rendition of judgment, involve the finding that the necessary facts exist to give jurisdiction, as conclusively as though the issue were expressly made. Suppose the petition alleged that the State did not hold the lands; would we not assume that the same was proved to the satisfaction of the court ? And yet it would be no more likely to be than as though it were not alleged. It has been said that:

“Jurisdiction [of the subject-matter] always depends upon the allegations, and never upon the facts. When a party appears before a judicial tribunal and alleges that a certain right is denied him, and the law has given the tri-. bunal the power to enforce that right, — his adversary being notified, — it must proceed to determine the truth or falsity of his allegations. The truth of the allegations does not constitute jurisdiction. The tribunal must have jurisdiction before it can take any adverse step. Its jurisdiction necessarily has to be determined from the allegations.” Id.

If this is not so, we have the absurdity of being obliged to try the merits to determine the question of jurisdiction. Manifestly, if the allegations are inadequate to confer jurisdiction, the want of jurisdiction appears upon the face of the proceeding. If they are adequate, there is certainly jurisdiction to inquire; i. e., try the question raised by the pleadings. Is it not paradoxical to say that the court has jurisdiction to try the case, but no jurisdiction to render a judgment? And that, notwithstanding the right to try and determine the case, its determination has no force, but may be set at naught by the lowest court in the land, on a trial of the merits, even after affirmance by a court of last resort ? Such is the logical consequence of saying that a judgment may be attacked collaterally by matters outside of the record.

In Reg. v. Bolton, 1 Adol. & E. (N. S.) 66, 72, Lord Denman says:

“Magistrates cannot, as it is often said, give themselves jurisdiction merely by their own affirmation of it. But it is obvious that this may have two senses. In the one, it is true; in the other, on sound principle and the best-considered authority, it will be found untrue. Where the charge laid before the magistrate, as stated in the information, does not amount in law to the offense over which the statute gives him jurisdiction, his finding the party guilty by his conviction in the very terms of the statute would not avail to give him jurisdiction. The conviction would be bad on the face of the proceedings, all being returned before us. * * * But, where a charge has been well laid before a magistrate, on its face bringing itself within his jurisdiction, he is bound to commence the inquiry. In so doing he undoubtedly acts within his jurisdiction. But in the course of the inquiry, evidence being offered for and against the charge, the proper, or, it may be, the ix’resistible, conclusion to be drawn may be that the offense has not been committed, and so that the case, in one sense, was nof within the jurisdiction. Now, to receive affidavits for the purpose of showing this is clearly, in effect, to show that the magistrate’s decision was wrong, if he affirms the charge, and not to show that he acted without jurisdiction; for they would admit that in every stage of the inquiry, up to the conclusion, he could not but have proceeded, and that, if he had come to a different conclusion, his judgment of acquittal would have been a binding judgment, and barred another proceeding for the same offense. * * * • The question of jurisdiction does not depend on the truth or falsehood of the charge, but upon its nature. It is determinable on the commencement, not at the conclusion, of the inquiry.”

Mr. Justice Brewer, in the case of Cooke v. Bangs, 31 Fed. 640, 644, expressed his opinion of the rule as follows:

“A justice of the peace * * * has no jurisdiction to try a man for felony, or to sentence to the penitentiary. That is a subject-matter which is entirely outside of his jurisdiction. If he assumes to try a man for manslaughter, and sentences him to the penitentiary, he is proceeding in a direction which is entirely outside of the scope of his jurisdiction. On the other hand, he may have jurisdiction of assaults and batteries, and does, in most States. Suppose he proceeds to try a man charged with assault and battery, and suppose, in fact, the assault and battery was committed outside of the county over which his jurisdiction extends; then, although his judgment would be erroneous, and in excess of his jurisdiction, yet, having jurisdiction of the subject-matter of assault and battery, and of the person of the defendant, it lies with him to determine whether such particular assault and battery comes within his jurisdiction, and his determination, though erroneous, ought not to subject him to an action for damages. He has jurisdiction of the subject-matter, and it is for him to determine whether the case is within his jurisdiction. He has the right to determine the question; and although he may determine wrongly, and although it may be a case which does not come within the limitation of his jurisdiction, and although he may have exceeded his authority, yet he had the power and the right to determine whether or no he had that jurisdiction, and it cannot be said to be a case wherein the entire subject-matter was outside of his jurisdiction.”

The question has been before many courts. Thus, in Poor v. Boyce, 12 Tex. 440, it was said:

“The allegations of an administrator’s petition to sell land, and not their tr'uth, confer jurisdiction; and, if those allegations are sufficient, all other questions are concluded collaterally.”

See, also, Stuart v. Allen, 16 Cal. 473 (76 Am. Dec. 551).

Again:

“ An allegation of citizenship of another State gives the federal court jurisdiction, and the falsity of such allegation does not make the judgment void.” Erwin v. Lowry, 7 How. 172.
“Where the jurisdiction of a court to lay out a highway depended upon the refusal of the selectmen so to do, a judgment laying- it out is not void because the petition was false on that point.” Huntress v. Effingham, 17 N. H. 584.

In State v. Gary, 33 Wis. 93, a person was summoned before a county judge in Wisconsin, to be examined in regard to his property for purposes of taxation. He claimed that, on account of his residence being in another State, he was not liable to be taxed, and applied for a writ of prohibition, on the ground that the judge had no jurisdiction. But the court said that the jurisdiction “depended wholly on the making and presentation to the judge of the affidavit and other papers required by the statute,” and not upon the facts.

The most that can be said is that, in a statutory proceeding like this, “we must be able to gather from the allegations, either directly or inferentially, that the party was seeking the relief granted, or that he was entitled thereto.” Mr. Van Fleet (Coll. Attack, §§ 61, 62) says:

‘ ‘ A large number of cases are cited in chapter 8, infra, where the judgment is not void, although the affidavit, complaint, or petition showed affirmatively that the plaintiff had no cause of action whatever. These illustrations show that there is no connection between jurisdiction and sufficient allegations. In other words, in order to ‘ set the judicial mind in motion,’ or to ‘challenge the attention of the court,’ it is not necessary that any material allegation should be sufficient in law, or that it should even tend to show facts that are sufficient. If that were the rule, the absence of any material allegation would always make the judgment void, because it cannot be said that such a complaint has any tendency to show a cause of action. It will be seen from the cases about to be cited that, when the allegations are sufficient to inform the defendant what relief the plaintiff demands, — the court having power to grant it in a proper case, — jurisdiction exists, and the defendant must defend himself. Thus, in Indiana, where a judgment of the board of county commissioners establishing a gravel road was attacked collaterally on account of a defective petition, the court said: ‘ If there was any petition at all, invoking' the action of the commissioners, its sufficiency cannot be collaterally questioned.’ Ricketts v. Spraker, 77 Ind. 371, 374. A judgment declaring a person insane is not void, when the whole proceeding shows enough' to ‘ fairly inform ’ the defendant and his friends that the claim was that he was insane, and that an inquiry thereon was to be held. In re Latta, 43 Kan. 533. ‘ If the petition sets forth facts sufficient to challenge the attention of the court with regard to its merits, or to authorize the court to deliberate with respect thereto,’ its judgment will not be void. Head v. Daniels, 38 Kan. 1. If a complaint to sell land for taxes is sufficient ‘ to challenge the attention of the court,’ a judgment thereon is not void because the complaint would have been bad on demurrer. McGregor v. Morrow, 40 Kan. 730. In an early case the supreme court of Illinois, in speaking of a collateral attack on a guardian’s sale of land, said: ‘Enough must appear, either in the application or the order, or at least somewhere upon the face of the proceeding, to call upon the court to proceed to act; and all agree that, when that does appear, then the court has property-acquired jurisdiction, or, in other words, is property set to work.’ Young v. Lorain, 11 Ill. 624 (52 Am. Dec. 463). If enough appears ‘to call upon the court to proceed to act’ (Mulford v. Stalzenback, 46 Ill. 303, 307), or if the allegations were sufficient ‘ to cause the judge to act’ (Galena, etc., R. Co. v. Pound, 22 Ill. 399, 414), in a special proceeding, or if there was ‘ something- stated to amend by’ (Spoors v. Coen, 44 Ohio St. 497), the proceeding is not void collaterally. But in the cases above mentioned, where the allegations showed affirmatively that no cause of action existed, the attention of the court was not challenged, nor was it called upon fco act, by any material allegation, nor was there any such allegation' to amend by. Hence I conclude that allegations immaterial and wholly insufficient in law may be sufficient ‘to set the judicial mind in motion,’ and to give a wrongful but actual jurisdiction, which will shield the proceedings from collateral attack. It seems to me that the Indiana case above cited, which was a special statutory proceeding before a board of inferior and very limited judicial power, announces the true and only logical rule, namely, that if there is any petition at all, invoking the action of the court, its judgment is not void.
“The courts of New York are not able to stand by their early rule that, where a single material allegation is omitted from a petition in a special proceeding, it is void. Thus, a fine for the violation of an ordinance was collaterally attacked because the board had no power to pass it. The court, assuming that to be true, said: ‘ The justice of the peace had jurisdiction of the subject-matter of the action, being for the recovery of a penalty less than two hundred dollars. * * * The jurisdiction of the magistrate was not derived from, and did not depend upon, the act which is challenged, but upon the general statutes of the State.’ Hallock v. Doming, 69 N. Y. 238, 240. In other words, having the defendant before him, and having jurisdiction to grant the relief demanded in a proper case, his judgment was not void, even thougii the allegations showed affirmatively that no cause of action existed in that case. This being a special statutory proceeding in restraint of personal liberty, how the logic on which this case rests can be reconciled with the earlier decisions it is difficult to understand. If a special proceeding is not void where the petition shows affirmatively that no cause of action exists, it would seem to follow, as a necessary sequence, that the failure of the petition to show a cause of action on account of the absence of one or more material allegations would not make it void. * * *
“ The supreme court of California said: ‘The first point decided by any court, although it may not he in terms, is that the court has jurisdiction; otherwise, it would not proceed to determine the rights of the parties.’ Clary v. Hoagland, 6 Cal. 685, 688. The supreme court of Wisconsin having erroneously determined that it had jurisdiction (the case not showing the point), and rendered judgment, it was held not void, because the court had power to decide on its own jurisdiction. State v. Waupaca County Bank, 20 Wis. 640. * * * ‘Where jurisdiction depends on the finding of a particular alleged fact, the exercise of jurisdiction implies the finding of that fact.’ Thornton v. Baker, 15 R. I. 553 (2 Am. St. Rep. 925). * * * ‘ The assumption of authority is an assertion of jurisdiction, without any formal statement of the facts essential to give jurisdiction.’ Osborn v. Sutton, 108 Ind. 443, 445. * * * ‘Where a court of general jurisdiction assumes jurisdiction, the existence of all facts necessary to confer jurisdiction are presumed to exist.’ Jackson v. State, 104 Ind. 516; Sims v. Gay, 109 Ind. 501, 503. So, in Alabama, it is said that action of the court implies the previous ascertainment of the preliminaiy jurisdictional facts, and that its decision on those facts cannot be called in question collaterally. Wyatt’s Adm’r v. Steele, 26 Ala. 639, 650; accord, Vosler v. Brock, 84 Mo. 574, 578. Judicial action is an adjudication not only of the facts actually determined, but equally so of all precedent matters which should have been determined. Ney v. Swinney, 36 Ind. 454. * * * The Supreme Court of the United States, speaking of a collateral attack on an administrator’s sale of land made in obedience to a private statute, said: ‘ In making the order of sale, the court is presumed to have adjudged every question necessary to justify such order or decree, viz., the death of the owner; that the petitioner was his administrator; that the personal estate was insufficient to pay the debts of the deceased; that the private act of assembly, as to the manner of sale, was within the constitutional power of the legislature; and-that all the provisions of the law as to notices which are directory to the administrator have been complied with.’ Florentine v. Barton, 2 Wall. 210, 216. A judgment by default bars the parties as conclusively, collaterally, as though they had framed issues, and had a trial, and been defeated. Goebel v. Iffla, 48 Hun, 21. The assumption of jurisdiction and the exercise of authority is a decision upon the question of notice, without any formal entry declaring the notice sufficient. Updegraff v. Palmer, 107 Ind. 181, 182; Jackson v. State, 104 Ind. 516, 520. * * * Collaterally, an administrator’s order to sell land is an implied and conclusive adjudication that the sale was necessary, and that notice was duly given (McDade v. Burch, 7 Ga. 559, 50 Am. Dec. 407); and an order granting relief is an adjudication of every fact essential to the validity of the order. Reynolds v. Faris, 80 Ind. 14, 19; Pendleton & Eden Turnpike Co. v. Barnard, 40 Ind. 146; English v. Woodman, 40 Kan. 752; McGregor v. Morrow, 40 Kan. 730. * * * A final judgment in favor of the plaintiff is always an implied adjudication that all his allegations, both express and implied, are true. Plummer v. Inhabitants of Waterville, 32 Me. 566, 568.”

In Landon v. Comet, 62 Mich. 80, it was held that, “where an objection was made to the right of the circuit judge to sit in the probate court, his assuming to act, ignoring the objection, was an adjudication of his right to do so.” See, also, Miller v. Smith, 115 Mich. 427; Allured v. Voller, 112 Mich. 357; Scotten v. City of Detroit, 106 Mich. 564.

In the case before us, the jurisdiction rests upon a statute which confers upon the court the power of determining whether the State has a lien for taxes upon land, and enforcing payment by a decree of sale. It has undoubted jurisdiction in every case where there is an enforceable lien. In a sense, it has no jurisdiction in a case where there is no existing lien which the State has a right to enforce. But, manifestly, the only way of finding out whether the State has such a lien is to try the question, and if, as is contended here, the question may be raised collaterally in- any court or proceeding, it follows that these proceedings (in pro confesso cases, at least) are decisive of nothing, for the same claim can be made as to any or all parcels of land covered by the decree. The statute prescribes what the petition shall contain. It does not require an allegation that none of the lands are held by the State upon tax bids. It alleges a lien, and prays enforcement, thus impliedly informing defendants that it is claimed that they are subject to such proceedings. The judge decides that they are so, when he includes them in the decree. We must presume that he has found the necessary facts. But there is a mistake of fact. The defendant has not chosen to bring the truth to his attention, or has inadvertently omitted it. But we must presume from the record that the necessary facts have been found, and the record cannot be contradicted; otherwise, there would be a premium on not making a defense, for it would be safer. The supreme court of Louisiana said: ‘ ‘Absolute nullities in judicial proceedings are such as result from radical defects, omissions, and irregularities appealing on the face of the record, and are not dependent on matters in pais, to be established by evidence aliunde.” Stackhouse v. Zuntz, 36 La. Ann. 529, 533. The same point has been decided in many other States. Hughes v. Cummings, 7 Colo. 203 (a county court judgment); Earle v. Earle, 91 Ind. 27, 42; Phillips v. Lewis, 109 Ind. 62, 68; Kingman v. Paulson, 126 Ind. 507 (22 Am. St. Rep. 611); Scott v. Crews, 72 Mo. 261, 263; Byram v. McDowell, 15 Lea, 581, 585; Stanley v. Sharp, 1 Heisk. 417 (a county court judgment); Beech v. Rich, 13 Vt. 595; Ex Parte Bergman, 3 Wyo. 396; Welborn v. People, 76 Ill. 516; Wright v. Wright, 74 Wis. 439.

We think the judgment should stand affirmed.

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


author: Hooker, J.

text:
    WILHELM v. VOSS.
    1. Statute op Frauds — Original and Collateral Promises.
    An oral agreement by the owner of a building to pay a subcontractor for his work is binding upon him if such subcontractor abandons his contract with the principal contractor, so as to retain no claim against him, but not otherwise.
    2. Principal and Agent — Evidence.
    Evidence that defendant in an action to recover for plastering a house told plaintiff that he would leave it all to a third person to look after the business for him is sufficient for the submission to the jury of the question of the agency of such third person.
    Error to Wayne; McMahon, J., presiding.
    Submitted April 8, 1898.
    Decided September 20, 1898.

      Assumpsit by Peter Wilhelm against Albert J. Voss for work and labor. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      A. Gr. Pitts, for appellant.

      James PL. Pound, for appellee.
   Hooker, J.

Van Bogaert & Co. erected a building for Voss, under a contract. When it was ready for plastering,'Van Bogaert, accompanied by Domke, who worked upon the house as a carpenter in Van Bogaert & Co.’s employ, went to the house of the plaintiff, when the plaintiff and Van Bogaert, acting for his firm, made a contract whereby the plaintiff agreed to do the lathing and the plastering upon the house for Van Bogaert & Co. The plaintiff hired Bolster to do the lathing, and he suggested to the plaintiff that Van Bogaert & Co. were irresponsible; and thereupon the plaintiff saw Domke, who lived in the family of Voss, and who said that he expected to marry Ms daughter, and occupy the new house when completed, and was assured by him .that Voss would see that he was paid before he paid the contractors. The plaintiff also testified that he told Voss himself that “he would not do the job unless he. would pay him for the job, because he did not think the contractor was any good,” and that “Voss told him that he would pay him if he plastered the house.”

The important question in the case is whether this oral promise constituted a valid contract. It is claimed that it is within the statute of frauds. The circuit court held otherwise, and the jury found a verdict for the plaintiff. The statute of frauds makes void any oral promise to answer for the debt or default of another. So that, if we must say that the plaintiff in this case performed his contract with Van Bogaert & Co., thereby making them his debtors under the contract which all agree was made with them, it is manifest that the promise alleged to have been made by Voss was collateral merely, and void because not in writing..,--The fact that Wilhelm had made a contract with Van Bogaert & Co. to do this work would not necessarily render invalid a subsequent contract with Voss to do the same work, but both of these alleged oral promises to pay for this work could not be valid at one and the same time. Unless the contract with Van Bogaert & Co. was abandoned by Wilhelm, so that there would remain no right to a claim for-compensation for the work when done, as against them, the promise alleged of Voss was collateral, and void under the statute.

The right of the plaintiff to recover against the defendant must depend upon the actual state of affairs at the time the work was done. If it was done in pursuance of ,and under the contract with Van Bogaert & Co., the performance created an obligation against Van Bogaert & Co., and not against Voss; while, if the plaintiff repudiated the contract made with that firm, so that, although he plastered the house, it was done under a different arrangement, and gave rise to no obligation upon the part of Van Bogaert & Co. to pay, the defendant would be liable for his promise to pay for the work, if he made such promisev The danger of injustice in this case arises from the opportunity afforded for the plaintiff, after finding himself unable to collect from Van Bogaert & Co., to say that he abandoned his first contract, and relied on the second, when in fact this was an afterthought, to avoid the effect of the statute of frauds. This is, however, a question of fact, and it was proper to submit it to the jury, unless the evidence conclusively showed that the work was done under the contract with Van Bogaert & Co., or that the alleged promise of the defendant was only a collateral promise. In our opinion, there was evidence tending to support the plaintiff’s theory, and it was proper to submit these questions to the jury.

Another question in the case requires discussion. Testimony of statements made by Domke, the defendant’s son-in-law, was admitted, tending to show that an original promise was made by him, upon behalf of the defendant, and it was claimed that he was the authorized agent of the defendant in the premises. It is now contended (as it was in the circuit court) that there was no proof of agency. The learned circuit judge thought there was such proof, and submitted the question to the jury. We agree with him that there was some testimony to that effect. It is to be found in the testimony of Wilhelm that, at’ the time Voss and he had their first talk, nothing was said about Domke, but that afterwards he said that he would leave it all to him, — to look after the business for him. This, in conjunction with what occurred, justified the judge in leaving the question to the jury. Had specific objection been made, the testimony that Domke stated that he was the agent of Voss should have been stricken out as hearsay; but the objection included much more, and, as a whole, was not well taken.

Counsel also maintains that the evidence fails to show the value of the services, or that a price was agreed upon. As to this, we are of the opinion that the jury were justifled in treating 17 cents a yard as the price contemplated by all parties.

The judgment is affirmed.

The other Justices concurred.