text:
    PEOPLE v. LEVEY.
    1. Criminal Law — Trial—Tampering with Jury — Investigation —New Trial.
    Where, in a criminal proceeding, after the jury had been out over two hours, they were brought into court at their request, and the foreman informed the court that one of the jurors had been approached, and the trial judge inquired of the foreman if they could render a fair and impartial verdict regardless of the incident, but no inquiry was made of any other juror, and no further investigation had, and nothing was done to protect the rights of defendant, and the jury, after retiring for a few . minutes, brought in a verdict of guilty, the motion of defendant for a new trial should have been granted.
    2. Same — Burglary—Statutory Offense — Elements—Proof.
    In a prosecution under 3 Comp. Laws 1915, § 15292, charging defendant with breaking and entering “the store, not adjoining to or occupied with a dwelling,” evidence that the store broken into was not adjoining to or occupied with a dwelling house was necessary.
    3. Same — Verdict—Language of Statute.
    The jury in orally rendering their verdict is not required to state all the language found in the act defining the offense.
    Error to recorder’s court of Detroit; Wilkins, J.
    Submitted April 18, 1919.
    (Docket No. 114.)
    Decided May 29, 1919
    Martin Levey was convicted of breaking and entering a store in the night time under 3 Comp. Laws 1915, § 15292, and sentenced to imprisonment for not less than 2 nor more than 15 years in the State prison at Jackson.
    Reversed.

      Chawlee & Sloan, for appellant.

      Alex. J. Groesbeck, Attorney General, Charles II. Jasnowski, Prosecuting Attorney, and Van II. Ring, Assistant Prosecuting Attorney, for the people.
   Fellows, J.

The information in this case charges defendant and one Nadel with breaking and entering “the store, not adjoining to or occupied with a dwelling house, of Grimshaw & Stevens, a corporation,” in the nighttime with intent to commit the crime of larceny, and the larceny of the goods and chattels of the corporation to the value of $1,701. Upon a separate trial defendant was convicted of the major offense and sentence was imposed. He here reviews such conviction upon this writ of error.

After the jury had been out something over two hours they were -brought into court at their request, and the court was informed by the foreman that one of the jurors had been approached. The record does not disclose that defendants counsel was then present, but it does disclose that the judge conferred with two of the assistant prosecutors and then inquired of the foreman if the statement made by the juror in the jury room would affect their verdict, and if they could render a fair and impartial verdict upon the law and the evidence regardless of the incident. The foreman expressed the view that they could. No inquiry was made of any other member of the panel, nor was any further investigation had. The jury retired and in a few minutes returned a verdict of guilty. This incident is made the basis of an exception, and was one of the reasons assigned in the motion for a new trial.

Both the people and the defendant were entitled to a trial by a fair, impartial, and unprejudiced jury. It not infrequently happens that incidents occur after the jury is sworn and the trial has progressed which create, or which may tend to create, such a condition, of prejudice as prevents a fair, impartial and unbiased disposition of the case by the jury. This court has had occasion to consider varying conditions and incidents occurring during the progress of the trial and which were urged as grounds for declaring a mistrial or as a basis for the granting of a new trial. Among the cases see, Churchill v. Alpena Circuit Judge, 56 Mich. 536; People v. Montague, 71 Mich. 447; People v. Evans, 72 Mich. 367; People v. Hull, 86 Mich. 449; In re Ascher, 130 Mich. 540 (57 L. R. A. 806); Detroit, etc., R. Co. v. Campbell, 140 Mich. 384; People v. Parker, 145 Mich. 488; Harrington v. Calhoun Probate Judge, 153 Mich. 660; Cooper v. Carr, 161 Mich. 405; People v. Sharp, 163 Mich. 79; Solomon v. Loud, 173 Mich. 233 (48 L. R. A. [N. S.] 540); In re Quinn’s Estate, 180 Mich. 502.

In the case of People v. Montague, supra, it was intimated that proper practice required the presentation of such a question by a motion for a new trial, and that the court should not interrupt the trial to examine into the charges. But this was not necessary to decision and the later cases have recognized the propriety of action by the trial judge upon receiving knowledge of the incident. In re Ascher, supra; Cooper v. Carr, supra; People v. Sharp, supra. In the last cited case it was said:

“We deem it wholly unimportant whether the juror was disqualified when impaneled and sworn, or whether he became corrupted and disqualified during the progress of the trial. In either case the duty of the court to act when such disqualification is discovered is imperative. Much must be left to the sound sense and good judgment of the trial judge in such a case."

In the instant case there was no action taken by the trial judge other than his inquiry of the foreman as to whether the incident would affect their verdict; no inquiry of any other member of the jury. There was no investigation as to the truth or falsity of the statement of the juror to his fellow jurors; no opportunity given defendant to refute his connection with the incident if it had been stated by the juror to his fellow jurors that he had been approached on behalf of defendant; no inquiry as to which party was responsible, if either was. While the trial judge was not authorized to discharge the jury on mere rumor and considerable discretion should be allowed him, here was information brought to him in open court that an attempt had been made to corrupt the jury; a statement to the jury by one of their members that he had been approached. The prejudicial effect of such a statement must be patent. To illustrate: If the juror stated that he had been approached on behalf of the defendant, neither he nor any other member of the jury could vote for acquittal without knowing that he was liable to incur the suspicion of his fellow jurymen. The situation required something besides formal inquiries of the foreman by the trial judge. The jury had been told, not by any witness in open court, who would be subject to cross-examination, but by one of their members, that an attempt had been made to corrupt the jury. Prompt and thorough action was demanded. Not only was the integrity of the proceeding involved, but the rights of the defendant were seriously affected. It was such an incident arising after the jury was sworn as without action on the part of the court could have but one tendency — the prevention of a fair, impartial and unprejudiced verdict. But there was no investigation of the charge, no sifting of facts to ascertain the truth of the accusation, no attempt to locate or fix the responsibility, no action on the part of the trial judge such as the occasion required, nothing done to protect the rights of the defendant. No such action having been taken when the incident occurred it became the duty of the trial judge to grant a new trial.

There was no testimony in the case that the store which was broken into was not adjoining to or occupied with a dwelling house. This is a necessary element of the offense (3 Comp. Laws 1915, § 15292) and should be proved. Koster v. People, 8 Mich. 431. We do not think that the jury in orally rendering their verdict is required to state all the language found in the act defining the offense and the assignment of error on this subject is overruled.

We do not discuss further assignments of error as they are not likely to arise upon another trial.

The case is reversed and a new trial granted. Defendant will be remanded to the custody of the sheriff of Wayne county.

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


source: Caselaw Access Project

author: Fellows, J.

license: Public Domain

text:
    DOWS v. SCHUH.
    1. Corporations — Sales op Stock — Blue-Sky Law.
    It is not a violation oí tlie “Blue-Sky law’ (3 Comp. Laws 1915, § 11954) for each owner of stock in a corporation to sell his stock when not made in the course of continued and successive transactions of a similar nature.
    2. Appeal and Error — Findings op Court — Review.
    Under 3 Comp. Laws 1915, § 12587, in a case tried without a jury, the Supreme Court may review only the question of whether the findings of fact of the trial judge are against the clear weight of the evidence.
    3. Same — Evidence—Suppkhency.
    Evidence held, to support the finding of the trial judge.

      Error to Kent; McDonald, J.
    Submitted April 9, 1919.
    (Docket No. 22.)
    Decided May 29, 1919.
    Assumpsit by John L. Dows, trustee, against Herman L. Schuh and others on a promissory note. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Charles G. Turner (William J. Landman, of counsel), for appellants.

      L. J. Washburn, for appellee.
    The Differential Clock Company is an Illinois corporation. It made application to the Michigan securities commission for permission to sell its stock in this State. On May 9, 1917, the commission heard its application, and, acting under the provisions of section 8 of Act No. 46, Pub. Acts 1915 (8 Comp. Laws 1915, § 11952), required the company to deposit in escrow 11,500 shares of its common stock as one of the conditions of obtaining such permission. Some 19 persons, mostly residents of Grand Rapids, were at this time owners of stock of the company to the amount of $18,750 par value, which, it is to be inferred, they had purchased prior to the enactment of the act of 1915. They had not paid par for their stock. They were known as, and are called in the record, “the minority stockholders/’ and for some time had acted in concert. Prior to the time in question there had been negotiations between the majority and minority stockholders, and a letter appears in the record bearing date February 28, 1917, and said to be similar to one sent to each of the minority stockholders, offering to purchase their stock at the amount invested plus interest at six per cent. The management of the company (the majority stockholders) was unable to obtain sufficient stock to comply with the requirements of the commission, lacking some $7,000 or $7,100 of the required amount. A meeting of the minority stockholders was held May 16, 1917. Many, but not all, of the minority stockholders were present; all of the stock certificates owned by the minority were m possession of those attending the meeting and all had been indorsed in blank, except one which was not so indorsed until the following- day. The defendants and their attorney were- also present; The situation and prospects of the company were first explained and the minority stockholders were requested to furnish sufficient of their stock to comply with the requirements of the commission. This they declined to do, and they also declined to selhthe amount required. But it was finally agreed that they should sell their entire holdings at the amount; they had paid for their stock, with interest. Two jiotes were executed by the defendants to John L. Dows, trasteé; one for $6,634.50, due in three months, and the other for $5,723, due in six months, and all of the stock of the minority stockholders was turned over to Mr. Dows; $7,100 of it was deposited with the commission, and the receipt for it given to him, and the balance of the stock was retained by him. The first note was paid. This suit is brought on the second note. Plaintiff declared Upon the common counts and. set up a copy of the note. Defendants pleaded the general issue and gave notice thereunder. Their position as stated in their brief is as follows:
    “The only question involved, is the failure of the consideration for the notes:

      “(a) Because there was no- delivery of the stock purchased.

      “(b) Because of the inability of plaintiff to deliver the stock purchased.

      “(c) Because of the illegal acts, in the sale, or offering for sale, of the stock in question by plaintiff and certain of the minority stockholders.”
    Elaborating (a,) and (b) it is the claim of defendants that none of the stock for the payment -of which these notes were given has ever been delivered to them; that a portion has been deposited with the Michigan securities, commission in escrow and cannot be withdrawn, except’ by complying with the condition of the escrow agreement, and that the receipt therefor is retained by plaintiff, and that the balance of the stock is still in his possession. Replying to this contention, it is the claim of the plaintiff and supported by the testimony offered by him, that the stock in escrow was placed there by defendants' attorney. That the stock was acquired by defendants for that purpose, that plaintiff signed the escrow agreement at their request, and that the receipt for such stock together with the balance of the stock is held by him as trustee by an agreement of all the parties that it should be so held until the notes were paid.
    Elaborating (c) it is the contention of the defendants that all of the minority stockholders were not present at the meeting of May 16th; that Dows, one Leavenworth, one Ashton and Mrs. Green, represented different absent stockholders, made the sale of the stock for them; that they were “dealers” within the meaning of the act referred to, commonly called the “Blue Sky law,” and that they had no license from the commission to act as dealers and that the sale of the stock had not at that time been authorized by the commission. Defendants therefore insist that such sale was in violation of the “Blue Sky law,” and, being in violation of a penal statute, is void, and defendants may not be required to pay the note given in payment of the consideration of such void agreement and may also recover the amount already paid. Replying to this contention, it is the claim of the plaintiff that neither he nor the persons named were dealers or that they made the sale for the owners of the stock. It is his claim, and there is testimony to support it, that the minority stockholders were then and had been for some time acting in concert with reference to their holdings; that all the stock was present at this meeting and was sent in to be handled as the meeting might decide was best for all concerned; that he was made trustee in the note to facilitate payment for the stock, solely for its collection and the disbursement of the proceeds among the 19 minority stockholders; and that he held the stock as trustee until the notes were paid, and was' then to deliver it to defendants. He claims that whatever action he took had reference to his own stock and that he was not a broker, dealer in stocks, or agent for the absent stockholders and that his trusteeship had solely to do with the collection of the notes and the disbursements of the proceeds and did not concern the sale. The case was tried without a jury and written findings of fact were filed Among the pertinent findings of fact and those particularly assailed are the following:

      “4. * * * That it was understood and agreed the defendants and the minority stockholders present at the meeting that John L. Dows was to act as such trustee and was to retain in his possession until the notes were paid all the shares of the stock so sold to the defendants except the seventy shares required to be deposited with the securities commission.
    < “5. That John L. Dows did not sell directly or indirectly any stock of the minority stockholders except his own, and that he was not appointed trustee by them at the meeting in question or prior thereto for the purpose of selling their stock or to act for them in any capacity whatever. That he actively participated in the negotiations between the parties only in the sale of his own stock in conjunction with others who had common interests; and that the stock which was sold at this meeting for which the note in question was given, was sold by the individuals present as owners of the stock held by them.
    “6. That as to the stockholders who were not present at this meeting and whose stock was included as part of the consideration of these notes, I find that their shares of stock were sent to this meeting to be disposed of in any manner that the majority of the stockholders, present might favor, there having been a common understanding that the minority stockholders would not dispose of their stock unless all of them joined in such disposition.”
   Fellows, J.

(after stating the facts.) It is insisted by the defendants that the findings of fact above quoted are against the clear weight of the evidence. Unless defendants are correct in this contention we cannot consider the questions ably discussed by counsel in their brief. If the stock in question was deposited in escrow with the securities commission by the defendants themselves or through their attorney and the receipt therefor was turned over to the plaintiff with an agreement between all the parties that he should hold it, together with the balance of the stock, as trustee until the notes were paid, defendants cannot com plain because they did not receive the stock before such payment. Nor was it a violation of the “Blue Sky law” for each owner to sell his stock when not made in the course of continued and successive transactions of a similar nature. Section 11954, 3 Comp. Laws 1915.

This court may only review the question of whether the findings of fact of the trial judge are against the clear weight of the evidence. Section 15, chap. 18, Act No. 314, Pub. Acts 1915 (3 Comp. Laws 1915, § 12587). A careful reading of this record containing the evidence taken upon the trial satisfies us that not only are the findings not against the clear weight of the evidence but that they are sustained by the clear preponderance of the proofs. Plaintiff and several of the minority stockholders present at the meeting sustain his version of what occurred. Three of the defendants give testimony contradictory in some particulars. Defendants’ attorney, who was present at the meeting of May. 16, 1917, was not called as a witness, nor was defendant Schuh, who left Grand Rapids on a business trip shortly- before the trial, and who at one time was the manager of the company. It would profit no one to set out in detail the testimony in the record. Suffice to say that the testimony given by plaintiff and in his behalf preponderates that given by the defendants and supports the findings.

The findings support the judgment, which is affirmed.

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


text:
    THOMPSON v. HURSON.
    1. Appeal and Error — Printed Record — Authentication.
    Where evidence has heen taken a case must be settled and signed by the trial -judge (3 Comp. Laws-1915, §§ 12636, 13757, Circuit Court Rule No. 66), but where no testimony has been taken, as in the instant case, the case is heard on the record, which is authenticated by the clerk (3 Comp. Laws 1915, § 13759).
    2. Same — Printed Record — Sufficiency—Supreme Court Rule.
    Where appellant has complied with Supreme Court Rule No. 35, properly presenting the only question raised, appellee’s motion to strike the printed record from the files, because not sufficiently full but without pointing out what paper or proceeding necessary to the determination of the question involved is absent therefrom, the motion will be denied, and the case disposed of upon its merits.
    3. Same — Judgment—Modification by Circuit Court.
    In a chancery appeal the Supreme Court hears the case
      de nova, and the decree entered is the final adjudication of the rights of the parties; therefore the circuit court, upon application of a party, without leave of the Supreme Court, may not modify a decree which has been affirmed by the latter court.
    4. Same — Reservation in Decree.
    A decree of the Supreme Court affirming a decree of the circuit court reserving further consideration of the case as to an accounting and sale of property, field, while authorizing the circuit court to proceed therein, not to empower it to again consider the Questions finally determined by the decree of the Supreme Court.
    Appeal from Wayne; Shepherd, J., presiding.
    Submitted April 15, 1919.
    (Docket No. 42.)
    Decided May 29, 1919.
    Petition by William E. Thompson against Patrick E. Hurson and others to vacate a portion of a decree. From an order granting the petition, defendants Hurson appeal.
    Reversed.

      Donnelly, Hally, Lyster & Munro, for plaintiff.

      Chamberlain, Kennedy & O’Brien, for appellants.
    When this case was last before us we affirmed the decree of the court below. Thompson v. Hurson, 201 Mich. 685. A reference to the opinion will disclose the facts and they need not be here repeated. The opinion was filed June 3, 1918, and on June 17, 1918, the decree of this court was filed pursuant thereto, and the files were returned to the court below, together with a certified copy of the decree of this court. On August 2, 1918, a prsecipe for the enrollment of the decree was there filed. On November 29, 1918, a petition of plaintiff to vacate a portion of the decree as affirmed was filed in che court below without leave of this court having been first obtained, and on the same day it was granted. From the order granting the prayer of this petition defendants Hurson appeal. The decree affirmed by this court directed an accounting; it permitted the plaintiff Thompson to retain the Bethune and Byron avenue properties at a valuation therein fixed. As to the Cortland avenue property, it directed its sale with the following provision:
    * * * “and such sale -shall be made subject to the right of the defendant Patrick E. Hurson to redeem from the same by paying to the commissioner the amount to be fixed as set forth in paragraph XIV of this decree at any time within thirty days after service upon him or his attorney of written notice of said sale.”
    The decree also contained the following provision:
    “XIV. The court reserves further consideration of this case and of all matters therein involved until after the taking of said account, and said Henry G. Nicol, circuit court commissioner as aforesaid, or any party to this case, shall have the opportunity at any time to apply to this court for further instructions in the performance of his duties under the terms and provisions of this decree, including the amount either party must; pay in cash to effect any redemption which he is entitled to make under the terms of this decree.”
   Fellows, J.

(after stating the facts). Plaintiff nas filed a motion to strike the printed record from the files for the reasons, (a) that there is no certificate of the circuit judge, and (b) that it is not sufficiently full. This motion must be overruled. Where evidence has been taken a case must be settled and signed by the trial judge. Section 22, chap. 50, Act No. 314, Pub. Acts 1915 (3 Comp. Laws 1915, § 13757) ; section 64, chap. 18 (3 Comp. Laws 1915, § 12636) ; Circuit Court Rule No. 66. Where no testimony has been taken, as in the instant case, there is no requirement and no necessity for any certificate of the circuit judge. The case is heard on the record which is authenticated by the clerk. Section 24, chap. 50 (3 Comp. Laws 1915, § 13759). It is not pointed out in plaintiff’s motion what paper or proceeding necessary to the determination of the question here involved is absent from this printed- record. Supreme Court Rule No. 35 provides:

“The party removing a cause into the Supreme Court by writ of error, appeal, certiorari, case-made, or otherwise, shall prepare a printed record for the use of the court and counsel, which shall contain all the testimony, and so much of the -pleadings, record and proceedings (and no more) as are necessary to present the questions raised.” * * *

Surely thp appellants should not be penalized or criticized because they have complied with the rule of this court and have caused to be printed a record properly presenting the only question raised. Had plaintiff by his motion pointed out anything further that was needed to properly understand the question presented an additional record might have been required. We must dispose of the case on its merits.

The meritorious question in the case is: May the circuit court upon application of a party, without leave of this court to make such application, modify a decree which has been affirmed by this court? It is well understood'that in chancery appeals this court hears the case dea novo and that the decree entered in this court is the final adjudication of the rights of the parties. In the case of Lyon v. Ingham Circuit Judge, 37 Mich. 377, a decreé of the Ingham circuit court in chancery had been affirmed by an equal division of the court. The cause having been remanded, the trial court opened the decree for further hearing. This court, speaking through Chief Justice Cooley, there said:

“The policy of the law is that when a case has once been considered and disposed of by the courts before which it may lawfully be brought, it is disposed of for all time, and the conclusion cannot be attacked in any new proceeding except upon certain equitable grounds which are foreign to the present discussion. The court rendering the conclusive judgment may have a discretionary authority to review and revise its own action, but if that court shall have taken the case on appeal, and shall have remanded it after judgment, the court below can have no similar authority, because if it could and should exercise it, it would really be reviewing and revising the action of its superior; which would be absurd.”

But it is insisted by counsel for the plaintiff that under paragraph XIV of the decree above quoted the circuit court reserved further consideration of the case. The' language of that paragraph cannot be construed to empower the circuit court to again consider the questions finally determined by the decree of this court. An accounting had been decreed and property was to be sold under the direction of the circuit court. 'With reference to these matters the circuit court was authorized to proceed. But the rights of the parties had been finally determined by this court, and a decree entered here fixing such rights. There must be a finality to litigation, and when the court of last resort of a State has finally adjudicated the rights of parties it cannot remain for the court to which the case is remanded to determine whether such adjudication shall be enforced.

The order appealed from will be reversed, with costs to appellants.

Bird, C. J., and Moore, Steere, Brooke, Stone, and Kuhn, JJ., concurred. Ostrander, J., did not sit.


author: Stone, J.

text:
    SOKUP v. DAVIS’ ESTATE.
    1. Courts — Appeal from Probate to Circuit Court — Notice— Statutes — Mandatory Provision — Waiver.
    Where notice of appeal to the circuit court from the prohate court was not served on the adverse party within 15 days from the date of the order directing the manner of such service, as required by section 9, chap. 65, of the judicature act (3 Comp. Laws 1915, § 14153), the circuit court was without jurisdiction to hear the case or render a judgment; said section of the statute being mandatory, and there being no claim that service of. notice was waived.
    2. Same — Impeachment of Record — Practice.
    On such appeal, no certificate of the probate judge or affidavit of any person may be considered as impeaching the record of the probate court; the proper practice requiring an amendment of the return if the facts are not therein stated truly.
    3. Same — Approval of Appeal Bond — Time.
    Where the appeal bond was not approved by the probate judge within 20 days after the return of the commissioners on claims, as required by section 3, chap. 65, of the judicature act (3 Comp. Laws 1915, § 14147), and the time was not extended by the probate judge, the circuit court was without jurisdiction to hear the case.
    4. Same — Jurisdiction—Waiver.
    Jurisdiction of the circuit court was not waived by defendant by taking part in the trial, where repeated motions were made to dismiss the appeal, and at the trial objection was made to the introduction of any evidence by plaintiff.
    Error to Kent; Brown, J.
    Submitted April 24, 1919.
    (Docket No. 55.)
    Decided May 29, 1919.
    Rehearing denied July 18, 1919.
    , Frank J. Sokup presented a claim against the estate of Albert L. Davis, deceased, for services rendered. The claim was disallowed by the commissioners, and plaintiff appealed to the circuit court. Judgment for plaintiff. Defendant brings error.
    Reversed, and no new trial ordered.

      C. Sophus Johnson (Louis T. Herman, of counsel), for appellant.

      Charles E. Ward, for appellee.
   Stone, J.

This case involves questions of practice in an appeal from the disallowance of a claim by commissioners on claims in the probate court. On October 6, 1917, the plaintiff filed his claim for services against said estate, with the commissioners on claims, which was disallowed. The commissioners’ report was dated January 7, 1918. On the same day on filing the report the probate court made an order for the payment of certain- claims, which had been allowed. On January 24, 1918, the plaintiff filed a notice of appeal with the probate court, and on the same day the record shows an order to have been made by the probate court directing service of notice of the appeal. That order, after its proper' entitling in the court and estate, reads as follows:

“Frank J. Sokup, having filed in said court notice of, and reasons for appeal to the circuit court for said county from the order of said court made on the 7th day of January, 1918,.and the said Frank J. Sokup having given a bond on such appeal, which has been duly approved, it is ordered that notice of said appeal be given to Effie N. Davis, executor of said estate, by personal service of a certified copy of this order and of said notice for appeal.” Signed by the probate judge.

The statute gave plaintiff 15 days from the date of said order to give notice of appeal- to the defendant. The notice of appeal was given to, and served on, defendant on February 9, 1918. The statute also gave plaintiff 20 days from January 7, 1918, in which to make application for an appeal to the circuit court. The record shows that the appeal bond was approved on the 24th day of January, 1918. An exemplification of the record, signed by the register of probate and bearing date February 9, 1918, certifies to the correctness of the notice of appeal, the order directing notice of appeal, the bond on appeal, and so forth, to be a correct transcript of the original records. The transcript having been filed in the circuit court, counsel for defendant, on March 6, 1918, entered a motion to dismiss the appeal for the reason that the notice of appeal, with reasons therefor, was not given by said Frank J. Sokup within the time directed by the statute in such case made and provided; and the motion was based upon the files and records in said cause. This motion was denied in the circuit court on March 18, 1918. A certificate was filed by the judge of probate, March 18, 1918, certifying that at the time of the notice of appeal and the appeal bond were filed by Frank J. Sokup in relation to his claim against said estate, no approval of said bond and no order for service was immediately made. He certified that on examining the bond he was uncertain whether the surety was a married woman, and on that account he did not approve said bond immediately; that the attorney for the estate made objection to the bond, and the matter of said approval was delayed several days. He was unable to state more definitely just how many. He further certified that the order for service and approval of the bond was afterwards dated as of the day when application for appeal was made; that said order for service was not made and ready on the day it bears date, neither was said bond approved on said •day; and there was therefore no order which could have been served by appellant on the 24th day of January, 1918, the day of the application for appeal, and for several days thereafter.

The record also shows an affidavit of' Carrie H. Emery, sworn to March 13, 1918, in which she states that she is a clerk in the office of Charles E. Ward, attorney for Frank J. Sokup in the case; that; said Ward was employed by said Sokup to appeal from the decision of the commissioners on claims; that under his direction she caused to be prepared a claim óf' appeal and appeal bond, and caused same to be filed in the probate court for the county of Kent on the 24th day of January, 1918; that within three .or four days thereafter she called said probate court and talked with a clerk therein, asking when she could get the order for service; that said clerk informed deponent that the said order had not yet been made, for the reason that the judge, had not yet approved the appeal bond; that on several occasions thereafter she called the probate court in the same matter, and was as often told that said bond had not yet been approved and said order not yet prepared; that some time in the week of February 9, 1918, she again called the said court, talked with the clerk, and again asked about the matter, and was again told that said bond had not been approved or the order prepared; that she then asked the Clerk what the reason was, and she was informed that theré was some- doubt in the mind of the judge about the surety, and that the judge wanted to inquire of the deponent about her; that deponent talked with Judge Higbee over the telephone and informed him that the surety on said bond was an unmarried woman, and gave him such information as he desired in regard to her property; that within two or three days thereafter, and on the 9th day of February, 1918, deponent was informed that said bond had been approved and said order of service made, and that the necessary papers were ready for service; and thereupon said Ward gave direction that said papers be served immediately, and that service and proof thereof was accordingly made; that deponent had knowledge of the service of said papers and administered the oath to the person who made the service, and had knowledge of the filing thereof in the office of the clerk of the circuit court for the county of Kent; deponent therefore says, that said service was made within 15 days after said order of service was made.

Thereupon, on March 20, 1918, defendant’s counsel entered a second motion to dismiss the appeal. That motion embraced the same reason which was assigned in the first motion, and also the following:

“That the appeal bond of the said Frank J. Sokup in said matter was not brought to the attention of, and approved by the probate judge for the county of Kent on or before the 27th day of January, 1918, the date of the expiration of the time for appeal in said court; in fact said appeal bond was not approved by said probate judge and filed until several days after the date of the expiration of the time for taking an appeal, as provided by statute, and as more fully shown by the certificate of Clark E. Higbee, judge of probate of said county, hereto attached.”

The attached certificate of the judge of probate bears date the 20th day of March, 1918, and, after proper entitling, is as follows:

“I, Clark E. Higbee, judge of the probate court for the county of Kent, do hereby certify that the appeal bond of Frank J. Sokup on his appeal from the decision and report of the commissioners on claims of said estate^ was not brought to me for my approval on or before January 27, 1918, but was brought to me for approval, and was approved by me several days after 'the 27th day of January, 1918.”

The second motion to dismiss the appeal was denied by the circuit court on the 29th day of March, 1918. Defendant's counsel then applied to this court for a writ of certiorari to review the proceedings. That writ was denied by this court on April 12, 1918.

It is stated by counsel for the plaintiff, in his brief, that upon the denial of the second motion the circuit judge stated that he did not know of the affidavit or first certificate upon the hearing of the first motion, and that he could pay no attention to the certificates of the probate judge in any way conflicting with his return tc the circuit court upon appeal; and that he therefore should dismiss the second motion without regard to the extra certificates of the probate judge, or the affidavit of Miss Emery. It is said that the circuit judge held it incompetent to impeach the return of the probate court by certificates made by the probate judge after such return, and in conflict therewith, and stated that if the return did not state the facts truly, the proper course was to move for an amendment of the return.

The case proceeded to trial in the circuit court, beginning on October 22, 1918. Upon the swearing of the first witness for the plaintiff, or claimant, defendant’s counsel called the attention of the court to the motions which had been already made in the cause, and said:

“We object to any testimony being given on the part of the plaintiff because it is our contention that the plaintiff has no standing in this court for these reasons,”

—then repeating the reasons as set forth in the second motion. Whereupon the trial court overruled the objection, and the case proceeded to trial. The plaintiff conducted an examination of the witnesses, who were also cross-examined by the defendant, and after the plaintiff rested, the defendant, to maintain the issue on its part, produced witnesses, who were duly examined and cross-examined, and the case was submitted to the jury under instructions of the court, and the jury rendered a verdict in favor of the plaintiff for $1,110.02, upon which judgment was' duly entered.

The defendant has brought the case here upon writ of error, and the first assignment of error is that:

(1) The court erred, over objection of counsel, in permitting plaintiff to introduce any testimony in the case.

(2) The court erred in denying defendant’s motion when defendant objected to the introduction of any testimony for the reasons:

(a) That notice of appeal, together with reasons therefor, was not filed by said Frank J. Sokup within the time directed by the statute in such case made' and provided.

(b) That the appeal bond of said Frank J. Sokup in said matter was not brought to the attention of, and approved by the probate judge for the county of Kent on or before the date of expiration of the time for appeal in said court.

(3) The court erred in denying defendant’s motion to dismiss said appeal for the reasons stated in the previous assignment of error.

1. It is the claim of the appellant here that the judgment rendered in the court below should be reversed because of the first assignment of error, for the reason that notice of appeal was not served by said Frank J. Sokup within the time directed by the statute, the circuit court having no jurisdiction to hear the case or render a judgment.

Section 9 of chapter 65 of the judicature act (3 Comp. Laws 1915, § 14153) is as follows:

“The appellant shall give notice of such appeal to the adverse party, with his reasons therefor, in such manner as the probate court shall direct, within fifteen days from the date of the order directing the manner of such service unless the adverse party shall, in writing, filed in the circuit court, waive such notice.”

Here, as appears by the record, the notice of appeal was not served on the defendant, or adverse party, within 15 days, as shown by the proof of service. The order of the probate court, as appears by the journal entry bearing date January 24, 1918, directed notice of the appeal to be given personally. As appears by the record, this notice was not given until February 9, 1918, more than 15 days from the date of the order. There is no claim that the defendant waived notice of the service. We think the statute requiring this service within a certain time is mandatory, and one affecting the jurisdiction of the circuit court. Merriman v. Jackson Circuit Judge, 95 Mich. 277; Bennett v. Hickey, 110 Mich. 628; Hosey v. Ionia Circuit Judge, 120 Mich. 280.

It will be observed that no motion was made for a delayed appeal in this case. The plaintiff was content to stand upon the orders of the circuit court denying the motions to dismiss the appeal. We agree with what was said to have been stated by the circuit judge who heard these motions, that the certificates of the probate judge cannot be considered as impeaching the records of the probaté court. It appears by the journal entry and the approval of the bond, on January 24, 1918, that certain acts were performed on the days therein named. No certificate of the probate judge, or affidavit of any person can be considered as impeaching this record. If the facts are not there stated truly, the proper practice would have required an amendment of the return. We are constrained, therefore, to hold that the first point relied upon by appellant, that the service of notice of appeal to the adverse party was not made within‘the time required by the statute, is well taken. This was a matter affecting the jurisdiction of the circuit court that could be raised at any time in the subsequent progress of the case. It was raised and urged on at least three occasions.

2. Were we to consider and give effect to the certificates of the probate judge the plaintiff would be in no better position, for it would then appear that the approval of the bond instead of being upon the 24th day of January, 1918, as appears by the record, was after the 27th day of January, 1918, more than 20 days from January 7, 1918, when the order was made approving the report of the commissioners on claims. Section 3 of the same chapter (3 Comp. Laws 1915, § 14147) provides as follows:

“Any * * * creditor may appeal from the decision and report of the commissioners on claims, to the circuit court for the same county, if application for such appeal be made in writing, filed in the probate office, within twenty days after the returning of the report of the commissioners: Provided, the probate judge may extend the time for taking such appeal as provided in section one of this chapter.”

The decisions of this court relating to the necessity of the approval of the bond within the statutory period are very clear. Bartlett v. Wayne Circuit Judge, 133 Mich. 604; McNamara v. Kent Probate Judge, 154 Mich. 201.

So in any view which we are able to take of the case, we are constrained to hold that the circuit court was without jurisdiction, and that the motions to dismiss the appeal should have been granted. This is not>a case where an application for a delayed appeal has been made and considered by the circuit court. It is a case where that court has failed to obtain jurisdiction of the case, by reason of noncompliance with the statutory requirements. It cannot be that this objection was waived by the defendant by taking part in the trial, especially where, as here appears, repeated motions were made to dismiss the appeal, and at the trial objection was made to the introduction of any evidence by the plaintiff. Under the statutes and authorities, we cannot do otherwise than to hold that the appeal should have been dismissed by the court below.

The judgment is therefore reversed and no new trial granted, with costs lo the appellant.

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


text:
    FLETCHER v. FLETCHER. KING v. FLETCHER.
    1. Appeal and Error — Judgment—Res Judicata.
    Where the Supreme Court filed an opinion reversing the decree of the court below, and, pending the settlement of the decree, denied a petition for an order to remand the record for the purpose of further testimony, or leave to file a bill of review, and sent the case down to the circuit court, in chancery, for the purpose of an accounting, “without prejudice to the rights of the parties hereto to have determined any claims they may have, other than the existence of the general copartnership as alleged in the bill of complaint,” the action of the court below, in allowing an amendment, taking further testimony as to a joint adventure, and entering a decree, which, aside from the preamble and recitals, is, word for word, the same decree as the one reversed, is unjustifiable.
    2. Joint Adventures — Definition.
    A “joint adventure” may be defined as an association of two or more persons to carry out a single business enterprise for profit.
    Appeal from Alpena; Emerick, J.
    Submitted April 8, 1919.
    (Docket No. 7.)
    Decided May 29, 1919.

      Bill by Frank WV Fletcher against Frank W. Fletcher and Allan M. Fletcher, executors of the will of George N. Fletcher, deceased, and Grace Fletcher King for an accounting. From the decree rendered, all parties appeal.
    Reversed.

      H. E. Spalding and Charles R. Henry, for plaintiff.

      I. S. Canfield, for defendant Fletcher.
    /. O. Murfin, for defendant King.
   Stone, J.

This is the second time this case has been before us. Our first decision will be found reported in 197 Mich. 68. A reference to the former opinion will show all the facts necessary to a proper understanding of this litigation down to that time. In that opinion Chief Justice Kuhn, speaking for the court, among other things, said:

“While the plaintiff has failed to establish by competent evidence the existence of the copartnership, it is also convincing that the existence of such a partnership would be inconsistent with the established methods of George N. Fletcher in doing business and his often expressed desire to have his children share equally in the distribution of his estate. * * *
“Being constrained to find that no copartnership has been established, many of the other questions with reference to an accounting as to various items discussed at length in the briefs are eliminated. The various accounts should be balanced as of the date of Mr. Fletcher’s death, and a proper distribution of the $300,000 additional stock of the Fletcher Paper Company be made.
“The decree of the lower court will be reversed, and a decree here entered in accordance with this opinion, with costs to the defendant Grace Fletcher King, but without prejudice to the rights of the parties hereto to have determined any claims they may have other than the existence of the general copartnership which is alleged in this bill of complaint.”

That opinion was handed down June 27, 1917, On September 14, 1917, the decree not yet having been settled, a petition and brief on behalf of Frank W. Fletcher, complainant and cross-appellant, were filed for an order to remand the record for the purpose of further testimony, or leave to file a bill of review. On the same day a motion and brief for rehearing were filed, on behalf of said Frank W. Fletcher. In the first petition it was stated as follows:

“Complainant and cross-appellant presents to this, honorable court this petition and brief in support thereof for an order remanding the record to the circuit court for the county of Alpena, in chancery, or for leave to file a bill of review, at the same time in separate proceedings, presenting to this court a motion and brief for rehearing of said cause in this court.”

In the petition for an order to remand the record, certain claimed newly-discovered evidence was set forth, among other things: that on the 18th day of May, 1895, George N. Fletcher had testified in the State of Massachusetts, in the case commonly known as Brown v. Fletcher, that the firm of George N. Fletcher & Sons consisted of George N. Fletcher, Frank W. Fletcher and Allan M. Fletcher. Said petition was supported by numerous affidavits. The said petition to remand the record, or for leave to file a bill of review, and the motion for a rehearing both came on for hearing at the January, 1918, term of this court, and both the petition and the motion were denied by this court on March 28, 1918. The decree was settled and entered on April 2, 1918. The first clause of said decree provides:

“The decree of the circuit court for the county of Alpena, in chancery, shall be, and the same is hereby reversed and vacated, but without prejudice to the rights of the parties hereto to have determined any claims they may have, other than the existence of the general copartnership as alleged in the bill of complaint.
“2. George N. Fletcher & Sons was never a co-partnership ; the business done by the name of George N. Fletcher & Sons was not a copartnership; the property standing and being in the name of George N. Fletcher & Sons was not copartnership property; George N. Fletcher, Frank W. Fletcher and Allan M. Fletcher were never copartners doing business under the name of George N. Fletcher & Sons.
“3. All the accounts of the estate of George N. Fletcher, Frank W. Fletcher and Allan M. Fletcher relating in anywise to the business conducted in the name of George N. Fletcher & Sons, shall be balanced as of the date of the death of George N. Fletcher, November 5, 1899.
“4. A proper distribution of the $300,000 additional stock^of the Fletcher Paper Company, and all other-property and assets shall be made pursuant to the' respective interests of the parties based upon the accounting referred to in paragraph 3 of this decree,, and pursuant to such decree as the circuit court for the county of Alpena may hereafter make as to such, stock, property and assets.
“5. This cause shall be, and is hereby remanded to the circuit court for the county of Alpena, in chancery, wherein the accounting herein referred to shall be made, and the rights and interests of the respective parties shall be determined by such decree as said lower court shall hereafter make.”

The decree concluded by ordering costs to Grace Fletcher King to be taxed.

While no specific allegation of the original bill of complaint had claimed compensation to Frank W. Fletcher for his services in the management of George N. Fletcher & Sons’ business, in the briefs filed in this court on his behalf, among other things, it had been said:

“Can it be assumed that Frank W. Fletcher and Allan M. Fletcher, who devoted their time and services to the enterprise, thereby contributing the best years of their life to the business, should share equally with their sister?”

Also quoting the words of H. M. Campbell as follows:

“It is inconceivable that any person would expect that they should devote their entire business lives to the building up of a great business without either a salary or an individual interest in it. The question then is, What was the extent of that interest?”

And in the oral argument counsel called attention to the same subject.

This court having in mind that upon the accounting some claim might be presented by Frank W. Fletcher for compensation for his services, inserted the clause both in the opinion and in the decree that the decree of the circuit court should be reversed,—

“but without prejudice to the rights of the parties hereto to have determined any claims they may have, other than the existence of the general copartnership as alleged in the bill of complaint.”

The case having been remanded to the circuit court for the county of Alpena, in chancery, the parties appeared in that -court on July 2, 1918. Notwithstanding the fact that this court had denied the petition to remand the record for further testimony and for leave to file a bill of review, and had denied the motion for a rehearing, a motion was presented in the circuit court that the bill of complaint be amended as follows:

_ “ (a) By inserting in said bill of complaint an additional paragraph to be numbered 13a, as follows:
“That the decision of the Supreme Court made in this cause June 27, 1917, and the decree entered pursuant thereto, as complainant is advised and avers, determines that George N. Fletcher & Sons was not a general copartnership, and that George N. Fletcher, this complainant, and Allan M. Fletcher were not co-partners therein, but does not determine the title to the property held in the name of George N. Fletcher & Sons or resulting from the business carried on under that name, or what persons are interested in said property and business or the nature, extent and proportions of the interests therein or the legal relations between the parties so interested. That said decision and decree were made without prejudice to the rights of the parties to this suit to have determined therein any claims that they may have other than the existence of the general copartnership alleged in the original bill of complaint.
“That after the death of George N. Fletcher in 1899, and from that time down to the time of said decision of the Supreme Court, as well as before the death of said George N. Fletcher, the business and property of George N. Fletcher & Sons were carried on and managed upon the theory and in the belief that George N. Fletcher & Sons was a copartnership and that the-complainant and the defendant Allan M. Fletcher were the surviving partners thereof and entitled to the management and control of said business and property ; that up to about the commencement of the present suit, the propriety of continuing said business' without liquidation or distribution of the property thereof was not questioned by anyone.
“That complainant has had the principal part in the management and control of said business and property and that the property of George N. Fletcher & Sons and the value thereof has largely increased since the death of said George N. Fletcher and that said result is largely due to the complainant’s management thereof.
“That complainant is advised and avers that if said George N. Fletcher & Sons was not a copartnership, the concern known by that name was organized and its business was conducted by said George N. Fletcher, this complainant, and Allan M. Fletcher as a joint adventure and one in which and in the property and profits resulting from which they were equally interested and no one else was interested.
“That in view of the facts above set forth, the property accumulated in said business, whether before or after the death of said George N. Fletcher, belongs one-third to the estate of George N. Fletcher and one-third each to the complainant and to Allan M. Fletcher.
“That in view of the disputes that have arisen and in order that a proper accounting may be had and a proper determination of the interests of the several parties hereto in the property of said George N. Fletcher & Sons, and that a proper distribution thereof may be had, it is necessary that further testimony be taken on the several issues involved.
“(b) And by inserting also in the prayer of said bill of complaint the following section: i
“(e) That such further testimony may be taken as may be necessary for the determination of the rights and interests of each of the parties hereto in the property and business of George N Fletcher & Sons, including all property accumulated since the death of said George N. Fletcher and necessary for the determination of the principles upon which the accounting herein should be had and for the statement of a proper account herein, and that upon such testimony the court may make such order or orders and such final decree as may be necessary to determine the rights and interests of the parties hereto in said property and for the division and distribution thereof.
“2. That the court by proper order may direct the taking of testimony pursuant to the prayer of the bill, as amended, and thereafter may by order direct an ^ accounting and determine the principles upon which the account shall be stated, to the end that after the statement of such account, final decree may be entered herein.
“This motion is based on the records and files in this case and the testimony heretofore taken therein, including the affidavits of Frank W. Fletcher, of Charles R. Henry and a copy of the affidavit of Marion E. Brown filed in the Supreme Court of Michigan with the petition for an order to remand this cause, and also upon the affidavit of Frank W. Fletcher hereto attached and herewith filed.”

When this motion was presented to the circuit court discussion arose between court and counsel, in which it appears that counsel for the defendants Grace Fletcher King and Allan M. Fletcher objected to the proposed amendment, claiming that the circuit court could not properly permit the amendment to be made after the 'final decree of this court settling the rights of the parties; that there was no practice that would justify such an amendment at that stage of the proceeding, and attention was called to the provisions of sections 1 and 3 of chapter 16 of the judicature act (3 Comp. Laws 1915, §§ 12478, 12480) relating to amendments.

It was the contention of counsel for Frank W. Fletcher that the practice found justification in the case of Bush v. Haire, 197 Mich. 85. But counsel for the defendants contended that to permit this proposed amendment would be the retrying of the entire case, and attention was called to the following language in the opinion:

“‘Considering, however, what clearly appears and is practically conceded, that it was the desire of George N. Fletcher to have his property equally divided among his children, we are of the opinion that the plaintiff has failed to produce that strong and convincing proof to establish a partnership relation which would result in depriving his only daughter of substantially two-ninths of his estate.”

And it was urged that the opinion of this court, predicated upon the prayer in the original bill, had specifically determined that this property, subject to adjustment since the death of George N. Fletcher, belongs in equal parts to these three parties. And attention was called to the clause that the various accounts should be balanced as of the date of Mr. Fletcher’s death and a proper distribution of the stock had. The learned circuit judge, in the course of the discussion, very properly said:

“We must follow the light of the opinion and decree rendered. There was an adjudication. What was adjudicated by this decree? One thing was — and a very important matter — that the property, nominally and in form transferred by George N. Fletcher to George N. Fletcher & Sons, was never copartnership property. They determined that by their decree. And why? What reason did they have for it? Well, the most cogent reason that they gave was because it appeared on the whole case that he never intended to deprive Grace of her equal rights as his heir to all his property, including the property which he had transferred to George N. Fletcher & Sons. What reason do they give to sustain their conclusion that there was no copartnership? They say that Mr. Fletcher— it was apparently intended that his children should share equally in all his property, and surely he would not then have made a disposition of his property which practically deprived his daughter of two-ninths of all of such estate of his as he transferred to George N. Fletcher & Sons. That is one reason they give. And, second, in reference to the item of $500,000 which George N. Fletcher transferred from his own account —from his own property to the property of George N. Fletcher & Sons — they said he would riot have done that if he hadn’t supposed that she had an interest in it.
“It is the very spirit of the opinion and the decree which follows it, that the capital and property of George N. Fletcher was not owned by any one to the exclusion of Grace as an equal heir to all the property of her father. That is the spirit of this finding. Now, it wouldn’t seem to me that it would be permissible, calling this new relation a joint adventure,.rather than a copartnership, to change th,e whole finding and determination of the Supreme Court. They say George N. Fletcher never intended to form a copartnership and transfer a great bulk of his property to it, so as to exclude his daughter from that property so transferred. I think I am right. I know I am right in my quotation — my citation from the opinion of the court. Now, therefore, he would riot have formed a copartnership having that effect, or which would result in that effect. Well, he wouldn’t do it any more in the form of a joint adventure than he would a copartnership.
“It is not possible that the Supreme Court have reversed this case simply because of a wrong name for the business relation which existed between those two men composing George N. Fletcher & Sons. They wouldn’t do that, I don’t think. But the fact remains that they have said, as I read from the decree, ‘without prejudice to the rights of the parties to have determined any claims that they may have, other than the existence of a general copartnership.’ Now, you conceive that you have a right to raise this question. Maybe you have. As affecting the interest of Grace Fletcher King in the property, I don't think you have.
“But it is not for me to cut you off at this stage of the case; and while I do not think the amendment is necessary to permit proper proofs — now, I say proper proofs — on proper items, it would do no harm to allow it, and I do not think it will result in any inconvenience.
“You have a right here to take proofs upon subjects which.are not already foreclosed by the decree of the' Supreme Court; and as to what subjects are foreclosed you have a right to take the opinion of the appellate court, and I am not going to shut you off from doing it.”

The amendment was therefore allowed over the objections stated, and Frank W. Fletcher was sworn and testified at great length to the amounts which he drew, and amounts which he paid in to George N. Fletcher & Sons, from its inception down to his father’s death in 1899; there were also introduced in evidence numerous letters from his father; also testimony of George N. Fletcher taken in -what is termed the “Brown litigation,” some of which called forth from the court the expression: “You ought to have hunted that up before your former hearing.” And the answer of Frank W. Fletcher, “I thought I had enough.” The same testimony of George N. Fletcher contained in the petition to remand, was introduced in evidence, and also additional testimony in the same case was offered and received in evidence.

During the cross-examination of Frank W. Fletcher the following colloquy between court and counsel is significant, as tending to show what counsel understood might have been in the mind of this court in inserting the clause in the decree so often referred to: Mr. Murfin, in cross-examining Frank W. Fletcher, said:

“I take it that the testimony offered, as Mr. Spalding stated, was for the purpose of laying the ground for you to be given compensation, wherever that is coming from, or whatever interest it is coming from. I ask you again, when did you first decide to charge your brother and sister anything for the services you rendered?
“Mr. Spalding: Let me make a statement before that question is answered. It is our contention that the interests of George N. Fletcher & Sons are substantially in thirds, and that Frank Fletcher is entitled to one of those thirds. If the court should ultimately hold that we are incorrect in that connection, I desire to be in position upon this record, or to have record in such shape, that the court may be able to make such equitable allowance as under all the circumstances they think proper. There has been no. determination, such as counsel’s question-is directed, toward, at all. But I think it proper to have this, record show the character and extent of the services; that Mr. Fletcher has performed in all these interests,, to have the matter submitted to the sound discretion of the court.
“Mr. Murfin: Then he is not going to ask compensation?
“Mr. Spalding: I should certainly ask, as I have said, the court in their final determination and adjustment of these interests to take that into consideration, in the event that they should find that our theory that he is entitled to a third interest in the property is not warranted.
“Mr. Murfin: I submit my question in view of counsel’s statement is a very proper one. It is evident that there is nothing else to do. It has been in his mind all this time.
“The Court: Well, it is very different, indeed, from, a man’s coming in and claiming compensation for something which he must have known from the start, that if he was to have anything that he should make a claim. As I understand the statement of counsel— I am not making any statement on behalf of the court whatever, I am not making any statement on behalf of the court — as I understand the position of counsel it is this: That it is their contention now that the partners are not — that the property of George N. Fletcher & Sons belongs to the three heirs of George N. Fletcher in equal thirds.
“Mr. Spalding: No, your Honor. I was unfortunate in expressing myself. My contention is not that the property of George N. Fletcher & Sons belongs to the three heirs in equal shares, but that they belong one-third to Frank W., one-third to Allan, and one-third to the estate of George N. Fletcher.
“The Court: In other words, Grace would own one-ninth and each of the brothers four-ninths; that is their claim that they are entitled to certain aliquot portions of his property; but if that shall be found against him, then you claim they shall. be compensated for their services for all the years in which this property has been managed by them, and they may not have intended to charge anything along years back, at all. I think Mr. Fletcher understands the situation and can answer the question shorter than we can talk about it.
“Q. When did you first decide to ask your brother and sister to pay for the services you had rendered?
“A. I had supposed from 1890 — thirty years ago that I had been handling George N. Fletcher & Sons as a partner and in consequence of my part of the partnership was to give my services. I have just found by the Supreme Court decision that I am not. Therefore, as my counsel says, the question is open as to what my services shall be. _ And there has been no consideration prior to the decision of the Supreme Court to render — to have any salary from George N. Fletcher & Sons.
“Q. In other words, until the Supreme Court decided this case, you had no intention of charging your brother and sister for any services you had rendered?
“A. To George N. Fletcher & Sons.
“Q. Or anybody else?
“A. To George N. Fletcher & Sons.
“Q. Had you ever expected at any time before this decision to charge Grace Fletcher King for any service you had rendered for any interest which she had in them?
“A. Yes, I have had the question in abeyance a good while, whether I should ask compensation for services as administrator or not.”

Notwithstanding what was said by. the learned circuit judge during the proceedings in the circuit court, in chancery, on the 9th day of August, 1918, he filed an opinion on the settlement of the final decree, in the course of which he said:

“It is the present position of plaintiff that, while the actions and doings of the several persons connected with the concern known as George N. Fletcher & Sons were each correctly stated in his bill of complaint herein, it was a mistake and a misnomer to call the same a copartnership, and that the decree above recited, only decides that there was no general copartnership and leaves the legal status of such persons and property, otherwise than as partners, wholly undetermined ; that the business carried on for several years under the name of George N. Fletcher & Sons was a joint adventure in which each of the partners named had a one-third interest, and that the property accumulated should be distributed in that proportibn. The most tangible reason given by the court for its determination that there was no' copartnership, or co-partnership property is this:
“George N. Fletcher at all times intended his daughter Grace to share his estate equally with his sons. Hence, he would not form a copartnership with them and transfer to it his property, so that the effect would be to deprive Grace of ‘substantially two-ninths of his estate’; and neither would he give $500,000 to the business of George N. Fletcher & Sons if he had not ‘thought that his daughter was interested in that business and would not be deprived of her share by the transfer so made by him.’ It is of the very spirit of the opinion that the capital and property of George N. Fletcher & Sons was not owned by anyone to the exclusion of Grace as an equal heir to all the property of her father.
“And, if he would not so transfer his property to a copartnership for the reasons stated, surely he would not to a joint adventure if the result would be precisely the same as to the interest of Grace in this property. True it is, that the reason given by the Supreme Court for its determination is not what was adjudicated. That is limited to the very decree. But, where a decree that there was no copartnership rests so fundamentally upon the asserted intention of George N. Fletcher that his daughter should share equally in his estate, I would not deem it becoming for this court practically to reverse such holding by finding the business of George N. Fletcher & Sons to have been a joint adventure upon the same proofs.
“But the proofs now taken are not the same as those before the Supreme Court, and are quite sufficient to show, and I think do show, that to the perfect knowledge of George N. Fletcher and his sons, the business of Fletcher & Sons was a joint adventure, in which he and his two sons had each an equal one-third interest as the presumption would be in law, and as he said.”

Notwithstanding all that had been said by the learned circuit judge, a decree was entered which, aside from the preambles and recitals, is, word for word, the decree of April 4,1916, which this court said was a wrong decree. It would be difficult to find a precedent for such a remarkable result, under such circumstances. To sustain such a remarkable result it must be claimed that the circuit court for the county of Alpena, in chancery, had the right to permit the amendments proposed by counsel for Frank W. Fletcher, and to reopen the case for any testimony which he might choose to offer, notwithstanding the denial of this court of the petition for an order to remand the record to take further testimony, and for leave to file a bill of review. And after denying the motion for a rehearing. It is inconceivable that this was a proper practice, or that the course pursued was a proper one. The case was sent down to the circuit court, in chaneery, for the purpose of an accounting upon the basis of the finding and decree of this court.

“without prejudice to the rights of the parties hereto to have determined any claims they may have, other than the existence of the general copartnership as alleged in the bill of complaint.”

We think such course was unjustifiable and that this court should not look into, or pass upon such new evidence introduced under such circumstances. It may be said, however, in passing, that the new evidence, if it has any probative force whatever, tends to show a general copartnership in which there was a community of property, a community of interest, and a community of profits, in a general business carried on for years; and not a joint adventure, which may be defined as an association of two or more persons to carry out a single business enterprise for profit. Rowley on Partnership, § 975, and numerous cases cited. See title “Joint Adventure,” 15 R. C. L. p. 500, and numerous cases therein cited. In nearly all the cases cited by counsel upon the subject of joint adventure, it appears that the adventure related to a single and isolated transaction. It is true that there are some exceptions to this statement, but in the main it will be found to be true. It is true in Brotherton v. Gilchrist, 144 Mich. 274 (115 Am. St. Rep. 397), and in Bush v. Haire, supra. It was distinctly said in the last-named case that:

“A careful study of this record forces the irresistible conclusion that such dealings as the parties had with one another were a series of independent transactions, each sepárate and distinct from the others, concerning which no general copartnership existed.” Citing cases.

In that case there was a reversal of the decree below, and a decree entered in this court dismissing the bill of complaint with costs, but without prejudice to the plaintiff to institute such proceedings as he deemed proper to obtain relief on the theory of a joint adventure. The course pursued in that case was simply authority for the institution of a new suit, which, as appears in Haire v. Charlevoix Circuit Judge, 201 Mich. 224, was brought later by filing another and an independent bill of complaint. That was not this case in either practice or principle. ' The instant case, when here before, was. not disposed of on any such narrow theory as that which is advanced by the plaintiff here. There can be no question that it was the intention of this court to foreclose the question of the rights of Frank W. Fletcher and Allan M. Fletcher to the property standing in the name of George N. Fletcher & Sons. In the language of the circuit judge, above quoted,—

“it is the very spirit of the opinion and decree which follows, that the capital and property of George N. Fletcher & Sons was not owned by anyone to the exclusion of Grace as an equal heir to all the property of her father.”

That was the spirit of the decree in this case. The accounting had in the court below was not in pursuance of the finding and decree of this court, notwithstanding the injection into the record of some testimony tending to show the extent of the services of Frank W. Fletcher. There is no finding of the court upon that subject.

Many pages of the brief, and much of the oral argument of plaintiff’s counsel were devoted to a reargument of the case as it appeared in the first record, urging that this court had reached a wrong conclusion; and it might properly be called a rehearing, although a rehearing had been denied by this court.

In the interest of proper practice and to carry out the spirit of the decision and decree of this court, the decree of the court below will be reversed. The same decree will be entered as before, except that the clause contained in the first paragraph will be so amended that it will read: But without prejudice to the rights of any of the parties hereto to have determined on such accounting any claims for services that they may have against the estate of George N. Fletcher. The defendant Grace Fletcher King will recover her costs in this court against Frank W. Fletcher to be taxed.

Bird, C. J., and Ostrander, Moore, Brooke, Fellows, and Kuhn, JJ., concurred. Steere, J., took 210 part in the decision.


text:
    CARTER v. BABCOCK.
    Garnishment — Justices of the Peace — Affidavits—Statutes.
    Where an affidavit in garnishment failed to state that it was made by plaintiff, his agent or attorney, as required by the statute (3 Comp. Laws 1915, § 14361), it was absolutely void, and conferred no jurisdiction upon the justice.
    Error to Berrien; White, J.
    Submitted April 15, 1919.
    (Docket No. 43.)
    Decided May 29, 1919.
    Assumpsit by Emma Carter against Bert Babcock for money had and received. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Reversed.

      O’Hara & O’Hara, for appellant.

      Gore & Harvey, for appellee.
   Stone, J.

This is an action in assumpsit in which the plaintiff in her declaration seeking to recover an indebtedness, of defendant, alleges that she was the assignee of one Grant Carter, who, on April 4, 1918, for a valuable consideration, sold, assigned and transferred said indebtedness to her, and that she was the owner thereof. It further alleges that on the day aforesaid the defendant was indebted to plaintiff’s said assignor in the sum of $1,000, under the usual common counts in assumpsit.

The plaintiff’s bill of particulars of her demand was as follows:

“One Grant Carter, plaintiff’s assignor, had an auction sale some three or four miles from the village of Three Oaks, in said county of Berrien, at which sale said defendant acted as Grant Carter’s clerk, and as such received into his possession, for the said Grant Carter, the proceeds of such sale, amounting to $205.00 in cash, and four promissory notes aggregating $399.-26, payable to the order of the said Grant Carter as follows.” (Describing the notes and further alleging said assignment of the demand.)

The bill of particulars concludes as follows:

“This suit is brought to recover the value of the said cash and notes, the defendant having refused to turn them over to plaintiff, as demanded by her.”

The plea was the general issue with an amended notice thereunder, that said alleged assignment was without consideration; was made for the purpose of defrauding John J. O’Brien, one of the creditors of said Grant Carter; that said assignment was, made on the very date that said plaintiff commenced suit against defendant, and was- made for the purpose of enabling said plaintiff to -make some claim against the defendant. Said notice also averred that at the time said assignment was made said Grant Carter, the assignor thereof, had been made a defendant in a suit by John J. O’Brien before Charles Holmes, justice of the peace in and for said county, and that prior to April 4,1918, the date of said assignment, the above named defendant had been served by a writ of garnishment issued by said justice of the peace, in favor of said John J. O’Brien against the defendant as garnishee; that thereafter, and on or about April 6, 1918, this defendant, as he was commanded in said writ of garnishment, made a disclosure to said justice of the peace, wherein said garnishee, this defendant, disclosed that as clerk of the sale mentioned in the plaintiff’s bill of particulars herein, he had in his possession and under his control the cash and notes stated in said bill of particulars; that thereafter this defendant was declared against by said John J. O’Brien before said justice, and thereupon said justice issued a summons to this defendant as garnishee of said John J. O’Brien, commanding this defendant to appear before said justice in his office at the village of Three Oaks aforesaid, on April 13, 1918, at 10 o’clock a. m., and show cause, if any he had, why judgment should not be rendered against him in favor of the above named John J. O’Brien; that such summons were issued in each of two suits brought against said Grant Carter, as principal defendant, by said O’Brien, and in each of which said suits this defendant was named as garnishee; that at the time and place specified this defendant appeared and filed his answer and plea to the plaintiff’s declaration in garnishment; that in said answer this defendant showed to the court that he held said moneys and said notes for the benefit of' said Grant Carter; that this defendant was served by summons in this action on April 5, 1918; that defendant was not able to determine to whom he was to pay said cash and notes; that he made no claim thereto, and that he was ready and willing to turn said notes and cash over to the person, or persons, legally entitled to receive the same; and that such proceedings were had in said justice court; that a judgment was rendered in one of said suits against this defendant and in favor of John J. O’Brien for the sum of $300, with costs to be taxed, and that a judgment was rendered in the other of said suits against this defendant in favor of said O’Brien, plaintiff, for $125.15, together with costs to be taxed, and that executions were duly issued and said money and notes levied upon.

Upon the trial, the defendant, to maintain the issue, offered in evidence the two affidavits in garnishment. They were exactly alike, except in the amount of indebtedness. We copy one of them here:

“State op Michigan, )
“County of Berrien, [ ss*
“Lucille D. O’Brien, being duly sworn, deposes and says that Grant Carter is justly indebted to John J. O’Brien in the sum of three hundred dollars or thereabouts, upon express contract, and that for the recovery of said demand, John J. O’Brien has commenced suit before Charles Holmes, one of the justices of the peace in and for said county. And this defendant further says that she has good reason to believe, and does believe, that Bert Babcock has property, money and effects in his hands and under his control, belonging to said Grant Carter from sale of personal property, and that the said Grant Carter is indebted to” the said John J. O’Brien, and further says not.
“Lucille D. O’Brien.
“Subscribed and sworn to before me this 21st day of March, A. D. 1918. ,
“Charles Holmes, “Justice of the Peace.”

The admission in evidence of these affidavits was objected to by plaintiff’s counsel, together with all subsequent steps in the garnishee proceedings because there had been a failure to set forth the elements that j the statute requires. Counsel said:

“The statute requires an affidavit in garnishment be made by plaintiff, his agent or attorney, and that, must be set forth somewhere in the affidavit, by way of recital at least, before the court can obtain any jurisdiction to issue a writ. Here is an affidavit made by a stranger to the record. And that it is necessary under all the decisions, under the statute, to have, at least by way of recital, the fact that Lucille D. O’Brien makes it in his behalf — in behalf of the husband, that she is agent or attorney, or in his behalf. And nothing of that kind appears here, and the whole proceedings are founded on those affidavits.”

The objection was overruled and the affidavits were received in evidence.

The statute, being section 1 of chapter 76 of the judicature act (3 Comp. Laws 1915, § 14361), provides :

“In any action commenced before a justice of the peace founded upon contract, or upon or after judgment, if the plaintiff, his agent or attorney shall make and file with such justice an affidavit stating that he has good reason to believe, and does believe that any person, naming him, has property, money or effects in his hands, or under his control, belonging to the defendant, or any, or either of the defendants in such suit, judgment or decree, or that such person is indebted to such defendant, or any or either of the defendants, and further stating whether or not the amount due from the garnishee defendant to the principal defendant is for the personal work and labor of such principal deféndant, or any member of his family, the justice shall issue a summons,” * * *

The plaintiff requested the court to charge the jury as follows:

“3. The garnishee proceedings were absolutely void. The justice never obtained jurisdiction in these proceedings, because no such affidavit as the law requires was made and’ filed with the justice, and therefore he had no authority to issue the summons in garnishment. The affidavit upon which the justice acted, did not show upon its face that it was made by the plaintiff himself, or his agent or attorney. Nor did it even show that such affidavit was made on plaintiff’s behalf.”

The trial court refused to give said request, and upon motion of defendant directed a verdict and judgment to be entered for the defendant; and the same were entered accordingly.

The court was of the opinion that the case was governed by the case of Katt v. Swartz, 199 Mich. 51. The plaintiff has brought error.

. By appellant’s 3d, and also by her 11th assignment of error, the question of the sufficiency of the affidavits in garnishment is squarely raised, and the 16th assignment of error is to the effect that the court erred in directing a verdict for defendant.

In our opinion the affidavits in garnishment were fatally insufficient to confer jurisdiction upon the justice to issue the garnishee summons. The statute quoted requires the affidavit to be made by the plaintiff, his agent or attorney. Here, there was not even a recital of that fact. We think that this is a jurisdictional question.

The rule is well stated in 1 Stevens’ Mich. Practice, § 85, where the author says:

“It is settled that if the affidavit fails to comply substantially with the requirements of the statute, the court acquires no jurisdiction and the proceedings are void, unless at least there is a waiver of the defects. A waiver of fatal defects by the garnishee may possibly bind him; but it will not protect him from an action by his creditor, the principal defendant.” Citing Weimeister v. Manville, 44 Mich. 408; Conway v. Ionia Circuit Judge, 46 Mich. 28; Ettelsohn v. Insurance Co., 64 Mich. 331.

See, also, Rood on Garnishment, §§ 250, 251, 270, 271.

In Ettelsohn v. Insurance Co., supra, it was said:

“If a creditor seeks to collect his debt under this statute, the reasons are abundant and manifest why he should pursue the statute strictly, and under the most strict construction. The proceeding is founded upon the_ affidavit required by the statute. If this affidavit is defective, the court acquires no jurisdiction. It is not a case in which jurisdiction can be acquired by voluntary appearance of the parties, or aided by presumptions. Neither can any substantial requirements of the statute be waived in any of the proceedings by the debtor garnished, because others have an interest in the result q.uite equal with those of the parties to the suit.” Citing in addition to the above cases, Iron Cliffs Co. v. Lahais, 52 Mich. 394.

In the Ettelsohn Case the court was equally divided upon the question of strict construction, but all agreed that the statute should be strictly construed, so as to protect the rights of parties. We think the same rule should be applied as in attachment cases. In Borland v. Kingsbury, 65 Mich. 59, it was held that it was essential that it should appear upon the face of an affidavit for an attachment that it was made either by the plaintiff, or by some person in his behalf. Citing Burnside v. Davis, 65 Mich. 74. See, also, Stringer v. Dean, 61 Mich. 196.

In Wetherwax v. Paine, 2 Mich. 555, the affidavit in garnishment was made by one Bothwell, who described himself as the agent of the plaintiffs, and it was held to be sufficient. In the instant case there was no such recital. See, also, Keister v. Donovan, 173 Mich. 328, at page 334, as to the necessity of observing statutory requirements in such proceedings.

Authorities in other jurisdictions are abundant to the same effect. Wiley v. Aultman & Co., 53 Wis. 560 (11 N. W. 32) ; Willis v. Lyman, Sears & Co., 22 Tex. 268; Manley v. Headley, 10 Kan. 88; Mohr v. Manufacturing Co., 3 Alberta L. R. 252; Lee v. Sumner, 2 Manitoba L. R. 191.

The last two cited cases were garnishee proceedings, and are directly in point, the affidavits having been defective in the same particular as in the instant case.

We are of the opinion that the court was in error in holding that Katt v. Swartz, supra, was controlling in this case. This court was there dealing with section 9 of chapter 76 of the judicature act (3 Comp. Laws 1915, § 14369), where the money owing was for personal work and labor performed by the principal defendant, or some member of his family, and the distinction between that and other sections, especially section 12, was pointed out, and the mandatory language of section 9 was emphasized. In the instant case there was no claim that the money owing was for personal work and labor, and the affidavits failed to comply with the statute in that regard — a point not distinctly raised in the case. The distinction between the cases will appear upon careful examination.

In our opinion the affidavits in garnishment were absolutely void, and conferred no jurisdiction upon the justice, and the subsequent proceedings were nugatory, and constituted no defense to this action. The court erred in receiving the affidavits in evidence, in refusing to charge the jury as requested, and in directing a verdict for the defendant. Whether the assignment of the claim to the plaintiff was valid or not, presented a question of fact which should have been submitted to the jury under proper instructions.

The judgment is reversed and a new trial granted, with costs to the appellant.

Bird, C. J., and Moore, Steere, Brooke, Fellows, and Kuhn, JJ., concurred. Ostrander, J., did not sit.