text:
    KNOWLTON v. GIBBONS.
    1. Mechanics’ Liens — “Cost Plus” Contract — Principal and Agent.
    Where plaintiff contracted to build a garage for defendants on the “cost plus” plan, he to superintend its construction, and to provide and pay for materials and labor and to receive as compensation for his services 5 per cent, of the total cost of labor and materials, he was entitled to the right of lien given by the statute (3 Comp. Laws 1915, § 14796), and defendants’ contention that the relationship was one of principal and agent is not sustained by authority.
    2. Same — Evidence—Sworn Bills Evidence Unless Denied Under Oath — Statutes.
    Under the statute (3 Comp. Laws 1915, § 14805), proceedings to enforce the lien must be by bill in chancery, under oath, and all bills sworn to are evidence of the matters therein charged unless denied by answer under oath.
    3. Same — Evidence—Sufficiency.
    On a bill to enforce a mechanic’s lien, which charged that plaintiff, under the contract, had- furnished labor and material for erecting the building, and the separate answers ' of defendants, which were not sworn to, did not deny the truth of such allegation, the court below was justified in finding that plaintiff was entitled to the'relief prayed.
    4. Same — Commingling Claims — Waiver of Lien — Identification of Claims.
    Although plaintiff mingled the claim for which lien is given with other claims not so privileged, where the accounting was such that the claims could be readily distinguished and ascertained, field, that the lien was not waived.
    5. Same — Acceptance of -Notes Not a Waiver of Lien in Absence of Agreement.
    In the absence of an agreement to that effect, the taking of defendants’ notes, some of which were not due when the statement of lien- was filed, by plaintiff for his claim, would not be a waiver of the lien.
    Authorities discussing the Question of acceptance of Commercial paper as extinguishment of mechanic’s lien are collated in a note in 35 L. R. A. (N. S.) 93.

      6. Same — Filing Lien Before Notes Dee Not a Waiver.
    And the statement of lien may be filed before the notes are due.
    7. Same.
    If for the claim notes are given, the due dates of which are within the time within which the lien may be enforced, the lien is not waived unless as provided by statute there is an express agreement therefor.
    8. Same — Time of Filing Bien — Statutes.
    Under 3 Comp. Laws 1915, § 14800, the important question is not the correctness of the dates given in the statement of lien, but whether the statement was in fact filed within 60 days from the furnishing of the last of the materials or the performing of the last of the labor — a question of fact which the court below correctly decided against defendants.
    9. Same — Error in Amount Does Not Avoid Lien in Absence of Fraud.
    Where no fraud is intended, an honest error in the amount claimed by the statement of lien does not avoid the lien.
    10. Same — Right to Lien Where Completion of Contract Prevented by Owner.
    The contention of defendants that plaintiff was not entitled to a lien because the building was not completed according to contract, and because plaintiff was to handle the property and have part of the amount due him from rents and income of the building, is without merit, where defendants, before the statement of lien was filed, took possession of the building, placed another in charge, and caused it to be rented, and instructed the banks holding defendants’ notes given to plaintiff to collect them of plaintiff.’
    11. Same — Decree to Provide for Cancellation of Owner’s Notes.
    The decree properly required the plaintiff, before satisfaction of his claim, to cancel and deliver to the clerk of the court all notes of defendants received by him in connection with the building.
    Appeal from Kent; Perkins (Willis B.), J.
    Submitted April 14, 1920.
    (Docket No. 61.)
    Decided June 7, 1920.

      Bill by James F. Knowlton against Mary L. Gibbons and another to enforce a mechanic’s lien. From a decree for plaintiff, defendants appeal.
    Affirmed.

      Hatch, McAllister & Raymond, for plaintiff.

      Corwin & Norcross, for defendants.
   Clark, J.

The bill of complaint seeks to enforce a mechanic’s lien. Defendants, owners of a lot in the city of Grand Rapids, entered into what is known as a “cost plus” contract with plaintiff for the erection of a garage building on the lot, by the terms of which contract the plaintiff was to superintend the construction of the building, was to provide and pay for materials and labor, and was to receive as compensation for his services 5 per cent, of the total cost of labor and materials, and defendants agreed to pay plaintiff for such labor, materials and services and for that purpose the funds were to be provided by mortgage of the property and by notes. After a hearing decree was entered granting, substantially, the relief prayed by plaintiff. Defendants have appealed and their contentions here are:

That in the undertaking plaintiff was not a contractor, subcontractor, laborer, or materialman, to whom the right of lien is given by statute, but was the agent of defendants and therefore without right of lien. 3 Comp. Laws 1915, § 14796. The trial court found that plaintiff had contracted with the owners and as such contractor had furnished labor and materials for the erecting of the building. The statute (3 Comp. Laws 1915, § 14805) provides that the proceedings to enforce the lien shall be by bill in chancery, under oath, and that all bills sworn to shall be evidence of the matters therein charged unless denied by answer under oath.

The bill charged that plaintiff, under the contract, had furnished labor and materials for erecting the building. The answer of one of the defendants neither admitted nor denied the truth of such allegation, while the answer of the other defendant admitted it. Neither answer was made under oath. In addition to the evidence of the bill itself there was testimony supporting such allegation. The record clearly sustains the finding of the court. And defendants’ contention that under the “cost plus” contract there was between the parties the relation of principal and agent is not sustained by authority.

In Carleton v. Machine Products Co., 199 Mich., at page 159, Justice Fellows, delivering the opinion of the court, said:

“We may take judicial notice that the arrangement of paying cost, plus a percentage as a contract price for a completed job, is growing in favor, and is becoming a common plan adopted by contractors in place of a lump sum payment. The Federal government has let contracts involving the expenditure of enormous sums of money on this plan. The change is only in the method of computing payment. There is no change in the relation of the parties from that which exists where the payment is a lump sum. The manner of computing payment for the completed job is not controlling; a change in this regard does not convert an independent contractor into an employee.” * * *

See, also, Fox v. Manufacturing Co., 197 Mich. 687.

That the lien was waived by commingling claims for which lien is given with other claims not so privileged. From the funds provided, plaintiff was directed by defendants to pay certain claims other than for labor and materials for the building. The claims related to the building and were for taxes, interest, etc. At the hearing no books of account' were produced. From time to time, before the statement of lien was filed, plaintiff had given defendants general statements as to cost and expense of the building. Plaintiff testified that' defendant Mary L. Gibbons had asked for a statement “showing the' total expenses we had incurred and what we had paid out.” In some of the statements reference was made to the claims, other than for labor and materials, which had been paid. For the purpose of the lien the method of stating the account was to deduct from the amount paid plaintiff by defendants the total of the other claims and to apply the remainder toward the payment of the claim for labor and materials. There may be such mingling of claims for which the law gives a lien with claims not so privileged as to waive the lien. J. E. Greilick Co. v. Taylor, 143 Mich. 704. In the case at bar the claims may be readily distinguished and ascertained.

It was held in Union Trust Co. v. Casserly, 127 Mich. 183, that the fact that an account contained other charges than those relating to the building in question did not of itself show waiver of lien.

“It very often happens that a contractor purchases from a materialman material for different jobs at practically the same time and the same are charged against the contractor in the books of the material-man in a general running account. This does not render the lien void if the materialman is able to distinguish from his books the material that he furnished for the particular job on which-the lien is claimed.” Wilkinson on Mechanics’ Liens, p. 58.

By the method of accounting the lien was not waived.

That plaintiff waived the lien by accepting several of defendants’ notes aggregating nearly $4,000, some of which notes were not due when the statement of lien was filed, but were to become due several days thereafter. It was not agreed that by the taking of the notes the lien should be waived, and in the absence of express agreement that'the taking of the notes was to be a waiver of the lien, the lien was not waived. 3 Comp. Laws 1915, § 14820. Smalley v. Gearing, 121 Mich. 190; Smalley v. Ashland BrownStone Co., 114 Mich. 104; Marquette Lumber Co. v. Albee, 196 Mich. 127. And the statement of lien may be filed before the notes are due. Smalley v. Ashland Brown-Stone Co., supra. And if for the claim notes are given, the due dates of which are within the time within which the lien may be enforced, the lien is not waived unless as provided by statute there is an express agreement therefor. 27 Cyc. p. 269; Cushwa v. Building Ass’n, 45 W. Va. 490 (32 S. E. 259); Flenniken v. Liscoe, 64 Minn. 269 (66 N. W. 979) ; Wykes on Mechanics’ Liens, p. 70; 3 Comp. Laws 1915, §§ 14820, 14804.

That the statement of lien was not filed within 60 days from the date on which the last of the materials was furnished or the last of the labor performed. 3 Comp. Laws 1915, § 14800. The important question is not the correctness of the dates given in the statement of lien, but was the statement in fact filed within 60 days from the furnishing of the last of the materials or the performing of the last of the labor. Union Trust Co. v. Casserly, supra. This was a question of fact. The trial court correctly found against defendants’ contention.

That the claim of lien is excessive and fraudulent and therefore void. The amount claimed to be due upon the statement of lien was $4,733.53. The amount found due upon decree was $4,327.12, to which interest was added, making a total of $4,579.53. That the difference by which the amount claimed by the statement exceeded the amount found due by the decree was not included in good faith is not shown by the proofs. When no fraud is intended an honest error does not avoid a lien. Fairbairn v. Moody, 116 Mich. 65; Halpin v. Garman, 192 Mich. 71; Scheibner v. Gohnen, 108 Mich. 165; Union Trust Co. v. Casserly, supra. From a review of the evidence we find no occasion to disturb the trial court’s computation of the amount due.

That for other reasons plaintiff had no lien. The contention of defendants that plaintiff was not entitled to a lien because the building was not completed according to contract and because the plaintiff was to handle the property and have part of the amount due him from rents and income of the building is without merit for the reason that defendants, before the building was fully completed, arbitrarily, it would seem from the record, revoked plaintiff’s right to incur further expense in regard thereto, and defendants, before the statement of lien was filed, took possession of the building, placed a person other than plaintiff in charge and caused the. building to be rented, and defendants instructed the banks, to whom the notes had been negotiated, to collect them of plaintiff. The decree properly required the plaintiff, before satisfaction of his claim, to cancel and deliver to the clerk of the court all notes of defendants received by him in connection with the building. Wilkinson on Mechanics’ Liens, p. 128; Clement v. Newton, 78 Ill. 427.

We have considered the other questions raised by counsel. The decree is equitable and it is affirmed, with costs to the plaintiff.

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


source: Caselaw Access Project

author: Clark, J.

license: Public Domain

text:
    McCUE v. DETROIT UNITED RAILWAY.
    1. Evidence — Witnesses — Attorney and Client — Privileged Communications — Rejection—Waiver.
    In an action against a street railway company for personal injuries, where plaintiff denied the truth of a statement in a bill for divorce .filed by her some time previously that about five years before she had had a stroke of paralysis, and she testified that she told her attorney that she had nervous prostration, any error in rejecting the testimony of her attorney, as privileged, as to what she told him, held, not prejudicial, in view of the fact that there was abundant evidence that at the time of the accident sued on and prior thereto plaintiff was and had been in good health, and it is not claimed that paralysis or nervous prostration is the cause of her present trouble or that it is related in any way with her previous illness.
    2. Impeachment — Evidence as to Material Matters.
    Evidence for impeachment should relate to matter material to the issue.
    3. Appeal and Error — Excessive Verdict to be Raised by Motion eor New Trial.
    A complaint that the verdict is excessive will not be reviewed on error unless first brought to the attention of the trial court by a motion for new trial.
    4. Same — Trial—Remarks by Court — Curing Error.
    A statement by the trial court, in rejecting certain evidence, that counsel for defendant was “trying to smuggle in something that the law does not recognize,” held, not prejudicial where the court, on the following day, on his attention being called to the statement by plaintiff’s attorney, stated to the jury that he had no intention of Imputing any trick or anything of a wrong nature to counsel, for whom he had the utmost respect, to which statement counsel for both parties assented.
    6. Same.
    Although a sentence in a statement by the court to a physiclan, defendant’s witness, taken alone, might be prejudicial, held, not reversible error when it is taken with the context, and the circumstances under which it was uttered are taken into consideration.
    Error to Wayne; Hosmer (George S.), J.
    Submitted April 27, 1920.
    (Docket No. 92.)
    Decided June 7, 1920.
    Case by Grace McCue against the Detroit United Railway for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Corliss, Leete & Moody (A. B. Hall, of counsel), for appellant.

      Keena, Lightner, Oxtoby & Hanley, for appellee.
   Clark, J.

On January 17, 1917, two of defendant’s street cars were in collision and plaintiff, a passenger, was thrown against a fare box and to, the floor and injured, the principal injury claimed being an injury of the sacro iliac joint. Upon trial plaintiff had verdict and judgment. Defendant made a motion for a new trial, claiming newly-discovered evidence, viz.: that in a bill for divorce filed by plaintiff prior to the accident, admissions as to plaintiff’s physical condition were made, principally that about March, 1912, as a result of ill-treatment, she had suffered a stroke of paralysis. A new trial was granted, which resulted in a verdict and judgment in favor of plaintiff.

Several of defendant’s assignments of error relate to the exclusion of the testimony of Edward R. Kehoe, the attorney for plaintiff in the divorce proceedings. Plaintiff, on direct examination, without objection, testified that when she signed the bill for divorce she had no knowledge that it contained the statement respecting paralysis, that she made ño such statement to the attorney but that she did in fact tell him that about March, 1912, she had had an attack of nervous prostration, and she further testified that she had never had paralysis. Defendant called Mr. Kehoe as a witness and sought to have his testimony as to the communication to him by plaintiff, his client, in the divorce case, respecting which communication plaintiff had testified. Objection being made, the court refused to receive the testimony, holding that the communication was privileged.

Regardless of whether, by the testimony of plaintiff as to the statements made to the attorney, there was a waiver of the privilege, we think there is nothing in this case to show affirmatively that defendant was prejudiced by the ruling. Plaintiff’s illness of March, 1912, was nearly 5 years before this accident. There was abundant testimony that at the time of the accident and prior thereto plaintiff was and had been in good health. The claim of plaintiff, supported by the testimony of physicians, was that because of the collision and her being thrown as stated she suffered an injury to the sacro iliac joint, resulting in a bony overgrowth or outgrowth or spur, causing pain and suffering, lameness, and loss of motion in the joint. Plaintiff’s physicians characterized this trouble as ex-ostosis, being the formation or throwing out of bony tissue, also as traumatic arthritis, meaning an inflammation of the joint due to injury. Defendant’s contention, likewise supported by the testimony of physicians, was that plaintiff’s trouble was arthritis deformans, which is inflammation of the joints, the result of which is that the bones become hard, bare and icy, producing deformity, and that in plaintiff’s sacro iliac joint there was deficiency of cartilege, arthritis deformans. Plaintiff was first examined by a physician of defendant nearly 5 years after her illness of March, 1912, and a later examination, upon which defendant’s medical testimony was based in part, was nearly 7 years after such illness. Defendant’s medical witnesses, supporting the theory of arthritis deformans, gave numerous causes of that trouble, including several Infectious diseases, but nowhere is paralysis or nervous prostration claimed as a cause, nor is there any testimony, as we read the record, by which even a remote connection's claimed between plaintiff’s later trouble and her illness of 1912. There being no affirmative showing of prejudice, the error, if any was committed, must be regarded as harmless. And evidence for impeachment should relate to matter material to the issue.

Defendant says that in the argument of counsel for the plaintiff there was error in that counsel stated:

“Now, you all know, of course, the change that there has been in the value of a dollar, in two years. They are now called dollarettes by some people, because you can buy so little. So, in figuring this amount, you should figure on the basis what a dollar is worth today —what the purchasing power is.”

The dollar is the measure and standard of value. To determine damages according to the purchasing power of money is in effect to use purchasable articles or commodities as a measure and standard of value rather than money itself. This would be tracking back toward the confusion in standards of value of early colonial days. Such argument is not favored. The substance of defendant’s complaint is that the probable effect of the argument was to increase the amount of the verdict, to render the verdict excessive in amount. We think that could be the only effect, if any. If a verdict is claimed to be excessive, such question will not be reviewed unless first brought to the attention of the tidal court by a motion, for a new trial. Brockmiller v. Industrial Works, 148 Mich. 642. Following the second verdict and judgment there was no motion for a new trial. The matter, therefore, was waived.

During a colloquy between court and counsel respecting the admissibility of certain evidence, the court said to counsel for defendant:

"Incompetent. I think you are trying to smuggle in something that the law does not recognize.”

It is insisted that this was prejudicial error. Upon the court’s attention being called to the statement the matter was cured by the following colloquy:

“Mr. Hanley: Just one thing, your honor, I don’t know whether I should say it, or not; but I want to be absolutely safe on this record in this case. Yesterday, during part of the examination, there was more or less strenuous argument between Mr. Seely and mysélf, and your honor made the remark that Mr. Seely appeared to be trying to smuggle in something in the way of proof. Now, I know the way in whiph your honor made that, and Mr. Seely does; but I think it should be made clear to the jury that there was no insinuation on your part Mr. Seely was doing anything wrong or- improper.
“The Court: There is no question, gentlemen; I. didn’t for a moment intend to refute (impute) any trick or anything, of a wrong nature to Mr. Seely. I have too much respect for him, gentlemen.
“Mr. Hanley: I knew you didn’t, but I wanted it to appear on the record.
“The Court: I don’t think Mr. Seely would think I would think of such a thing.
“Mr. Seely: That is the last thing I would think of, your honor; to do anything of that kind.
“The Court: My relations with Mr. Seely have been very pleasant, and, as I said before, I have the utmost respect for Mr. Seely. I certainly didn’t mean any such intimation should be made.
“Mr. Hanley: I knew you didn’t mean it.
“Mr. Seely.: It never occurred to me. That thought was entirely out of my mind.”

Error is assigned upon a statement made by the court to a physician, defendant’s witness. By considering the sentence itself some plausibility is given to this contention, but when the sentence is put with the context and the circumstances under which it was uttered are taken into consideration, we do not think it can be said that the remark was so prejudicial that the case should be reversed for that reason.

The several other assignments of error, briefly referred to by counsel, have been considered.

The judgment is affirmed.

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


text:
    PEOPLE v. GRABIEC.
    1. Indictment and Information — Criminal Law — Pleading — Negativing Exceptions.
    An information based upon section 2 of Act No. 338, Pub. Acts 1917, as amended by Act No. 53, Pub. Acts 1919, charging defendant with having unlawfully transported and having in his possession spirituous and intoxicating liquors, is not defective because exceptions contained in the amended act, and adopted by reference in section 2, were not negatived, since section 2 is an enacting clause, and under the rule in force in this State where the exceptions are not set forth in the enacting clause the pleader need not negative them.
    2. Ceiminal Law — Intoxicating Liquors — Evidence — Super cienct.
    In a prosecution for illegally transporting and having in possession spirituous and intoxicating liquors, evidence as to defendant’s guilt, held, sufficient to present a question of fact for the jury.

      3. Same — Duplicity—Election of Counts.
    Election between, counts cannot be required on tbe ground that distinct offenses are charged, where they are committed by tbe same acts, at the same time, and the same testimony must be relied on for conviction.
    Exceptions before judgment from Ottawa; Cross (Orien S.), J.
    Submitted April 16, 1920.
    (Docket No. 116.)
    Decided June 7, 1920.
    Rehearing denied July 20, 1920.
    Louis Grabiec was convicted of violating the liquor law.
    Affirmed.

      Charles E. Misner, for appellant.

      Fred T. Miles, Prosecuting Attorney, for the people.
   Clark, J.

Defendant was convicted under an information charging him with having unlawfully transported and had in his possession a quantity of spirituous and intoxicating liquors.' The information was based upon section 2 of Act No. 338, Pub. Acts 1917, as amended by Act No. 53, Pub. Acts 1919: '

“Sec. 2. It shall be unlawful for any person, directly or indirectly, himself or by his clerk, agent or employee, to manufacture, sell or keep for sale, give away, barter, furnish or otherwise dispose of, or to import, transport, or have in possession any vinous, malt, brewed, fermented, spirituous or intoxicating liquors; or any mixed liquor or beverages, any part of which is intoxicating; or to keep a saloon or any other place where such liquors are manufactured, sold, stored, possessed, given away or furnished in this State, on and after the first day of May, nineteen hundred eighteen, except as herein otherwise provided.”

Defendant contends that the information is defective in not negativing the exceptions contained in the amended act and in not stating:

“The said intoxicating liquors not being then and there so possessed for medical, chemical, mechanical, scientific or sacramental purposes.”

With this contention we do not agree. Said section 2 is an enacting clause.

“The rule, however, in this State is well established that in declaring on a statute where there is an exception in the enacting clause, the pleader must negative the exception, but where there is no exception in the enacting clause, but an exemption in the proviso to the enacting clause or in a subsequent section of the act, it is a matter of defense and must be shown by the defendant.” People v. Kenyon, 201 Mich., at page 651.

See, also, Meyers v. Carr, 12 Mich., at page 71; People v. Phippin, 70 Mich. 6; People v. Pendleton, 79 Mich. 317; People v. Schuler, 136 Mich. 161.

And it seems that when the exceptions are not set forth in the enacting clause, but are adopted into such clause merely by reference, the pleader need not negative the exceptions. In People v. Kenyon, supra, the information was based on section 7, Act No. 237, Pub. Acts 1899 (2 Comp. Laws 1915, § 6730). Said section 7 contained a mere reference to the exceptions and it was held that the information need not negative the exceptions.

Defendant requested that a verdict be directed in his favor claiming that there was no evidence that he was guilty of the offense charged. There was testimony that on the afternoon of May 14, 19-19, defendant and one Popolowski came from Muskegon to the home of one Kochel in Grand Haven where they remained until about 9 o’clock that evening when defendant at Kochel’s request went to a livery and hired a driver and automobile to go to Muskegon, paying therefor the sum of $10. The driver with defendant then went to Kochel’s home where defendant assisted in loading into the car 2 kegs of whisky, 5 suitcases and a burlap sack containing whisky in bottles, in all 40 gallons. The three men above named then got into the car with the driver and the trip to Muskegon was' begun. When the car had gone some 10 or 15 feeTi officers stopped them and defendant’s arrest followed. There was also testimony that defendant had a business errand to Grand Haven that day, that he was to ride back to Muskegon in the car as Kochel’s guest and that, although he assisted in loading the liquor into the car, he did not know that the packages contained intoxicating liquor until after his arrest. The trial court properly determined that there was an issue of fact for the jury.

Defendant also complains that the information, warrant, and complaint are bad for duplicity, charging two offenses, viz.: transporting spirituous and intoxicating liquors, and having the same in possession, and that the court was in error in not granting defendant’s motion made at the beginning of the trial that the prosecution elect upon which charge it would proceed.

“While it is true that, as a general rule, where several cognate acts are forbidden in one section of a statute disjunctively, the indictment may ordinarily charge them conjunctively in one count, if the reference is to one transaction, for which a single penalty is incurred, it is also true that where each forbidden act may be set up as a distinct offense, 'but several are united, the count is good in such case as for one combined act.” People v. Keefer, 97 Mich., at page 17.
“Election between counts cannot be required on the ground that distinct offenses are charged, where they are committed by the same acts, at the same time, and the same testimony must be relied on for conviction.” People v. Warner, 201 Mich., at page 553.

See, also, Van Sickle v. People, 29 Mich. 61; People v. McKinney, 10 Mich. 54; People v. Dyer, 79 Mich. 480; People v. Sweeney, 55 Mich. 586; People v. Summers, 115 Mich. 537.

The testimony related to one transaction. In such a .case; under the authorities above cited, no election is necessary for defendant’s protection. Defendant’s contentions in this regard are not sustained.

We have examined the other assignments of error. No reversible error appearing, the conviction is affirmed. The cause is remanded. The court may proceed to judgment.

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


text:
    REYNICK v. SAGINAW CIRCUIT JUDGE.
    1. Mandamus — Practice—Pleading—Return Conclusive if Not Controverted.
    In mandamus proceedings to compel the circuit judge to vacate an order extending the time to settle a hill of exceptions, the return of the judge that the order was based on the consent in open court of counsel representing both parties, not being controverted by plea, is conclusive.
    2. Exceptions, Bill of — Extending Time for Filing — Consent in Open Court.
    Counsel by written stipulation, and without procuring the stenographer's certificate required by 3 Comp. Laws 1915, § 12634, may extend the time for settling a bill of exceptions not exceeding the time limited by statute, and an order entered upon the journal of the court by consent of counsel in open court is equally effective.
    3. Same — Filing Bond by State Not Required.
    The language of the order requiring the State, which was a party to the proceedings, to file a bond as a condition for extending the time to file a bill of exceptions was written inadvertently and should be disregarded, since under 3 Comp. Laws 1915, § 13762, a bond could not be required of thg State.
    4. Same — Good Cause foe Extending Time — Abuse of Discretion.
    Tbe order of tbe court granting or denying a further extension of time for good cause shown will not be disturbed except in a case of clear abuse of discretion.
    5. Same.
    The order extending the time upon a showing of cause by the attorney general, by affidavit, that there was a press of public business in his office, and “that the legal questions involved in said cause, the determination of which is sought by appeal, are of great importance to the people of the State,” held, not such a palpable abuse of discretion, affirmatively shown, as to call for interference by this court.
    Mandamus by Charles J. Reynick and others, executors of the last will of Ezra Rust, deceased, to compel Ernest A. Snow, circuit judge of Saginaw county, to vacate an order extending the time to settle a bill of exceptions.
    Submitted April 13, 1920.
    (Calendar No. 29,166.)
    Writ denied June 7, 1920.

      Weadoek & Weadoek (Cavanaugh & Burke, of counsel), for plaintiffs.

      Alex, J. Groesbeek, Attorney General, and Ducme H. Hosier, Assistant Attorney General (Leland W. Carr, of counsel), for defendant.
   Clark, J.

Plaintiffs are executors and executrix of the will of Ezra Rust, admitted to probate by the probate court of the county of Saginaw. On behalf of the State a petition was filed in said court the purpose of which was to reach certain mining leases, so-called, covering lands in Minnesota, in which Mr. Rust had been lessor, it being the contention of the State that the leases are personal property and that their transfer under the will is subject to the inheritance tax law of the State. The probate court dismissed the petition. On appeal, defendant, circuit judge, directed a verdict against the State and judgment was entered thereon June 9, 1919. An order was then obtained and entered on the journal of the court granting 20 days in which to move for a new trial or settle a bill of exceptions with stay of proceedings and a further extension of 60 days on condition that a bond be filed. There was no motion for a new trial. On November 26, 1919, counsel for the State filed in the cause a motion, supported by affidavit, for an extension of time to settle a bill of exceptions. The motion was heard December 15, 1919, and on December 22, 1919, defendant, circuit judge, made an order extending the time to and including January 26, 1920. Plaintiffs seek by mandamus to set aside this order.

3 Comp. Laws 1915, § 12634, provides:

“The court or the circuit judge at chambers may allow such time as shall be deemed reasonable to settle such exceptions and reduce the same to form: Provided, That no more than twenty days shall be allowed for such purpose, except upon the production of a certificate from the stenographer of said circuit stating that the party desiring such extension has ordered a transcript of the testimony necessary for the preparation of said bill of exceptions, and that the same will be furnished as soon as possible by said stenographer. If a motion for a new trial is made within said twenty days, and such motion be denied .the time to settle a bill of exceptions may be extended twenty days from the date of such denial without the production of such certificate.”

Circuit Court Rule No. 66 contains the following:

“Section 1. A party shall have not less than twenty days after entry of judgment or decree for the settlement of a'bill of exceptions, in actions at law, or of a case containing the evidence for review in the Supreme Court in actions in equity, but the stay of execution or other proceedings during that time shall be discretionary with the court.
“Sec. 2. Subject to the limitations prescribed by-statute, and upon such terms and conditions as shall be deemed just, the court may grant such further reasonable time as shall be deemed proper for a settlement of a bill of exceptions or case, and may extend such time when proper. But no more than sixty days further time shall be granted for that purpose, except for good cause shown by affidavit on special motion after notice to the adverse party, or on the written stipulation of the parties.”

Plaintiffs say that the order sought to be set aside is void for the three following reasons:

The State did not procure and produce the certificate of the stenographer required by the statute and the production of the certificate was not waived and the circuit court, therefore, was without jurisdiction to grant an extension of time in which to settle a bill of exceptions. On this point the return of the defendant, circuit judge, states that the order granting 80 days in which to settle a bill of exceptions was based on the consent in open court of counsel representing both parties. The return, not being controverted by plea, is conclusive. 3 Comp. Laws 1915, § 13440; Yerkes v. Antrim Circuit Judge, 200 Mich. 443. Counsel by written stipulation, and without procuring the stenographer’s certificate, may extend the time for settling a bill of exceptions not exceeding the time limited by statute. Brevoort v. Wayne Circuit Judge, 203 Mich. 388. An order entered upon the journal of the court by consent of counsel in open court is equally effective.

A bond was not filed as required by the order. As to this it may be said that the language of the order requiring the State to file a bond was written inadvertently and should be disregarded. A bond could not be required of the State. 3 Comp. Laws 1915, § 13762.

The State did not by its motion make any showing of good cause which would authorize the court to grant such extension of time. On this point we state that beyond the 20 days, to which a party is entitled as a matter of right, and beyond the 60 days which may be granted on ex parte application on production of the stenographer’s certificate, the court has power to grant a further extension not . exceeding the statutory limitation upon a showing of good cause by affidavit on special motion after notice to the adverse party, and as was stated by Justice Kuhn in Brevoort v. Wayne Circuit Judge, supra, these regulations are subject to the exception that not exceeding the time limited by statute the extension may be had by written stipulation, and as we here hold, by an order entered by consent of counsel in open court. The special motion and showing of good cause may be made after the 80 days have expired (Roach v. Wayne Circuit Judge, 117 Mich. 242), and the order of the court in granting or denying the extension so sought will not be disturbed except in a case of clear abuse of discretion. Here the showing of cause by affidavit was the press of public business in the attorney general’s office and “that the legal questions involved in said cause, the determination of which is sought by appeal, are of great importance to the people of the State.” We do not find from the record such a palpable abuse of discretion, affirmatively shown, as to call for interference by this court. Smilansky v. Wayne Circuit Judge, 186 Mich. 463; Pettinger v. Montmorency Circuit Judge, 164 Mich. 463.

Writ denied, with costs to defendant.

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


author: Bird, J.

text:
    HARTINGH v. IOSCO CIRCUIT JUDGE.
    1. Quo Warranto — Mandamus — Court Stenographer — Remedy to Try Title to Office.
    Where the circuit judge suspended the court stenographer for alleged misconduct and incompetency, and appointed another in his stead, quo■ warranto and not mandamus was the proper remedy of the suspended official, since the office is filled by a de facto incumbent.
    2. Same — “Official”—Statutes.
    Under 3 Comp. Laws 1915, § 14469, the court stenographer is an “official,” rendering quo warranto proceedings applicable to determine the suspended incumbent’s right to hold the office.
    3. Courts — Hearing on Suspension of Official — Conclusion a Matter of Record.
    Under 3 Comp. Laws 1915, § 14468,'a suspended court stenographer is entitled to a hearing, and the conclusion of the court as to his reasons for not rescinding the order ' of suspension should be filed and made a matter of record and not rest in inference.
    Mandamus by Nicholas C. Hartingh to compel Albert Widdis, circuit judge of Iosco county, to vacate an order suspending plaintiff from the office of circuit court stenographer, and to decide a motion to rescind such order of suspension.
    Submitted April 6, 1920.
    (Calendar No. 29,089.)
    Writ denied on first part and granted as to second June 7, 1920.

      Stoddard & McMillan, for plaintiff.

      Herman DehnJce, for defendant.
   Bird, J.

Plaintiff was appointed official stenographer of the 23d judicial circuit by the governor on March 28, 1895. He held the office continuously until' the 20th day of June, 1919, upon which date the defendant caused to be entered in the records of the Iosco circuit court an order suspending him as official stenographer and assigning his reasons therefor. A copy of this order was served upon plaintiff and a copy was transmitted to the governor.

Following this, on July 8th, a motion was made and filed in said court by plaintiff to rescind said order. This motion was supported by the affidavit of plaintiff, denying in the main the acts of incompetency and misconduct, and challenging the jurisdiction of the court to make the order. This motion was argued before the court on the 15th day of July, 1919, and at the conclusion thereof defendant announced he would determine the motion within a few days, but notwithstanding repeated requests of plaintiff’s counsel defendant has refused and neglected to file his conclusions thereon.

The petition shows further that during the time said motion was pending said defendant made an order and caused it to be entered in the journal of said court, appointing one Fred Carson as official stenographer of said judicial circuit; that said Carson accepted the appointment and entered upon the duties of the office, and is now discharging the duties thereof.

On November 20th plaintiff filed his petition in this court reciting the several steps in the proceedings and praying for the following relief:

“Wherefore, your petitioner prays that a mandamus may issue, requiring and compelling said Albert Widdis, circuit judge, to vacate and set aside the order of June 20, 1919, suspending your petitioner from the office of circuit court stenographer of said twenty-third judicial circuit court, if this is refused
“That a mandamus issue, requiring and compelling said Albert Widdis, circuit judge, to decide the motion made, filed, heard and submitted before said judge on the 15th day of July, 1919, and to render and file his decision upon said motion within such period of time as the court may allow therefor.”

The First Prayer. Plaintiff denies or explains the acts of misconduct which are recited as a ground for the order of suspension, and denies the alleged incompetency. He insists that 'the court was without jurisdiction to enter the order suspending, him, and 'that the order appointing Carson is a nullity. The raising of these questions results in raising the whole question as to whether he is entitled to the office of official stenographer. If the office were vacant and no one was claiming it, we might determine the question on mandamus, but there being a de facto incumbent discharging the duties of the office we think the situation presented is one which should be determined ,by quo warranto proceedings. Harrington v. Otsego Circuit Judge, 204 Mich. 327, and cases there cited. The facts in the case cited were much like those in the present case, and we held there that quo warranto was the proper remedy.

But it is argued that plaintiff was not an official. We cannot agree with this contention. He receives his appointment from the governor of the State. He is required, by statute, before entering upon the duties of his office, to take and subscribe the constitutional oath of office, which oath of office is required to be •filed in the office of the secretary of State. His salary is fixed by the legislature and is paid from public funds and the statute refers to the office of court stenographer as an office, and expressly makes the incumbent an officer of court. Section 14469, 3 Comp. Laws 1915. We think this clearly brings him within the definition of an official as a basis for quo warranto proceedings.

The Second Prayer. The section of the statute authorizing the court to act provides:

“Every such stenographer, whether holding office at the time this act takes effect, or hereafter to be appointed under the provisions of this act, shall hold his office during the pleasure of the governor: Provided, That the court shall have power to suspend him for incompetency or misconduct; and in case of such suspension, he shall thereafter cease to hold the office of stenographer, unless by order of the court, until his suspension be rescinded. If such suspension be not rescinded within thirty days after the order of suspension, the office shall be deemed vacant.” 3 Comp. Laws 1915, § 14468.

This section obviously contemplates that one who is under suspension' shall have opportunity to move to have the order rescinded and it seems just as obvious that the application should be made to the court which made the order. By this practice the way is opened to one under suspension to have a hearing, on the reasons assigned for suspension. If this be true, then plaintiff had a right to make the application and have a hearing thereon. If he had this right we think it would follow that he would be entitled to have his motion determined. Of course, it may be said that the court’s refusal to decide the motion was inferentially a refusal to rescind the order. This may be so for some purposes, but we think the conclusion of the court should be a matter of record and not rest in inference. We are of the opinion that the first prayer should be denied and the second prayer granted, and that defendant should be given 30 days after a copy of this opinion is served upon him to make and file his conclusions and determination of plaintiff’s motion. If there should be any occasion for a writ to issue, after the defendant’s attention is called to the opinion, one may issue as prayed. No costs will be granted.

Moore, C. J., and Steere, Brooke, Fellows, Stone, and Clark, JJ., concurred. Sharpe, J., did not sit.


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    CONSUMERS POWER CO. v. IOSCO CIRCUIT JUDGE.
    X. Judges — Mandamus—Venue—Calung in Another Judge.
    There is no authority in the statute (3 Comp. Daws 1915, § 12342) for a litigant by mandamus to compel the pre-' siding judge, who refuses to consider himself disqualified, to call in another judge to hear the case.
    2. Same — Transfer to Another Circuit.
    Where the presiding judge refuses to admit his disqualification to sit in a case, and refuses to call in another judge, litigant’s remedy is to apply for a transfer to some judge in an adjoining county, under 3 Comp. Daws 1915, § 12343.
    Mandamus and prohibition by the Consumers Power Company to compel Albert Widdis, circuit judge of Iosco county, to call another judge to try causes of action against plaintiff, and to prohibit defendant from trying the same.
    Submitted April 27, 1920.
    (Calendar Nos. 29,083-29,085.)
    Writs denied June 7, 1920.

      Bernard J. Onen (George W. Mechera, of counsel), for plaintiff.

      Coumans & Gaffney, for defendant.
   Bird, J.

This is an application for writs of mandamus and prohibition to compel defendant to call in another judge to hear certain cases pending in the Iosco circuit court, and to prohibit defendant from sitting in them. The petition shows that on or about August 13, 1919, there were three cases pending in the Iosco circuit court against plaintiff. The plaintiffs in those cases were John H. Kilmaster, Jennie Dameraux, by guardian, and Frank and Martha Merkle. On August 28th plaintiff filed a motion to dismiss in each case. While these motions were pending, and on September 12th, plaintiff petitioned the defendant to call in another judge to hear said causes, for the reason that he, defendant, was disqualified to sit therein on account of certain statements which he had made and which were published in the “Gleaner,” a farm journal circulating in the State, reflecting upon the personnel of the plaintiff corporation and also upon the business methods employed by it. Defendant did not regard himself as disqualified for the reasons advanced, and accordingly denied the prayer of the petition. The important section of the statute which is involved in this controversy is the following:

“Sec. 3. Whenever any civil suit or proceeding shall be pending in any circuit court in this State, either' on the law or equity side of said court, in which the judge of said court shall be interested as a party, or as a member of any corporation which is a party to said suit, or has heretofore been consulted or employed as counsel in the subject-matter to be litigated in said suit, or in which for any other reason he would be excluded from sitting as judge at the trial thereof the same may be transferred to some other circuit court in the manner hereinafter provided, or the judge of the circuit court in which such suit is pending may icall in any other judge not disqualified to sit in such cause.” 3 Comp. Laws 1915, § 12342.

The real controversy centers around the construction which should be given to the last lines of the section which appear in italics. Plaintiff contends that defendant, under the showing made, abused his discretion in refusing to call in another judge. The defendant contends that it is a matter entirely within the discretion of defendant, and further that plaintiff has an adequate remedy at law, therefore, under the rule, neither mandamus nor prohibition will be entertained.

Assuming, for the purpose of the argument that defendant is disqualified to sit in the cases, it follows then that plaintiff’s remedy is to apply for a transfer to some judge in an adjoining county. 3 Comp. Laws 1915, § 12343. The quoted section, and the ones following, point out with much detail how transfer of causes may be accomplished. Counsel has made no application under these sections, but attempts to obtain a transfer, or the equivalent of one, by compelling the presiding judge to call in another judge. There is no authority in the statute for this procedure. The statute referred to -undertakes to, and does, furnish a method by which litigants may, upon their own initiative, apply for and obtain a transfer of their causes when the presiding judge is disqualified to sit. In addition to this the statute also furnishes a method whereby the presiding judge may, upon his own initiative, call in another judge when he considers himself disqualified; but this provision was never intended to furnish a short cut to litigants to force the transfer of a cause, or to force a hearing before another judge. As the record now stands, the provision authorizing the circuit judge to call in another judge has no applicability. It is only when the presiding judge admits his disqualification, or when it has been judicially determined, that this provision is applicable. There is no occasion at the present time to call in another judge because the presiding judge insists that he is not disqualified. It follows then that the question as to whether he is, or is not, disqualified, must be judicially determined. This can, and should, be done under the statute provided for that purpose

It clearly appearing that plaintiff has a remedy at law, both writs will be denied. Defendant will recover his costs in this court.

Moore, C. J., and Steere, Brooke, Fellows, Stone, and Clark, JJ., concurred. Sharpe, J., did not sit.


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    LONGCOR v. DETROIT HOMEOPATHIC COLLEGE.
    1. Contracts — Construction—Ambiguous Writing Open to Construction by Jury.
    Where the language' of a writing is ambiguous, the question of the intention of the parties may be left to the jury.
    2. Landlord and Tenant — Construction of Lease — Question for Jury.
    In an action for damages for the breach of a lease, the question whether the lessor was under obligation to connect with central heat in case the boiler proved inadequate as provided in the lease, in view of another agreement allowing lessee $1,000 on his rent to make repairs, held, properly submitted to tjie jury.
    3. Appeal and Error — Harmless Error.
    Where the jury reached the proper conclusion, defendant cannot complain because the court did not interpret the contract.
    4. Landlord and Tenant — Eviction Bars Right to Rent — Recoupment — Evidence.
    Where defendant had evicted plaintiff, its tenant, testimony, under notice of recoupment, as to its damages and loss by reason of plaintiff’s failure to pay rent was properly excluded on the ground that it had elected to evict plaintiff.
    5. Same — Eviction—Rent—Defenses.
    The eviction of a tenant from the demised premises either by the landlord or by'title paramount, is a bar to any demand for rent, because it deprives him of the whole consideration for which rent was to be paid.
    On the question of partial eviction upon liability for rent, see notes in 17 L. R. A. 275 and 41 L. R. A. (N. S.) 430.
    On eviction of tenant by failure to furnish heat, see notes in 37 L. R. A. (N. S.) 1217, L. R. A. 1916E, 742.
    Error to Wayne; Hosmer (George S.), J. Submitted April 22, 1920.
    (Docket No. 63.)
    Decided June 7, 1920.
    Assumpsit by Eugene J. Longcor against the Detroit Homeopathic College for breach of a written lease. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Lewis A. Stoneman, for appellant.

      M. F. McDonald, for appellee.
   Bird, J.

Plaintiff took a lease of defendant’s premises at the southwest corner of Lafayette boulevard and Third street, in the city of Detroit, for a period of five years from the first day of February, 1915, for the purpose of using it as a rooming house. The rent reserved was $150 a month for the first 3 years, and $200 a month for the remaining 2 years. The lease was the ordinary short form lease, with the additional provisions that plaintiff should pay the water tax and vacate the premises in 90 days in the event of a sale thereof. A further provision was inserted, which furnishes the irritant in the case. It was as follows:

“Said first party agrees that should the heating plant in building be defective and not properly heat building, it will install central heat.”

Another agreement having reference to the prem-. ises was made by the parties, which, after reciting the fact that the lease had been made and restating the rent reserved, provided as follows: ■

“Now, therefore, it is mutually understood and agreed that in order to put said building in a tenant-able condition, it is necessary to make certain alterations in the rooms, overhaul the plumbing and steam heating plant, and rewire the whole building for electric lights, and redecorate the rooms. This will cost between one thousand ($1,000) dollars and fifteen hundred ($1,500) dollars, said first party hereby agrees with said Eugene J. Longcor, party of the second part, that said second party is to make these improvements to said building, and upon satisfactory showing that the said improvements have been made to the satisfaction of the party of the first part, said first party agrees to allow said Eugene J. Longcor, party of the second part, the repair bills, to an amount not exceeding one thousand ($1,000) dollars.”

Following these provisions the agreement provided for an application of the money expended for repairs on the rent and for certain security for the payment of the rent. Whether this agreement was executed before or after the lease was executed is in dispute. But suffice to say both were executed and plaintiff proceeded to make the repairs and afterwards received credit on his rent, as agreed. Among the repairs made, plaintiff installed new grates in the boiler and made some further repairs thereto. With these repairs the boiler was used the.balance of the winter. The following winter he was obliged to use stoves as an auxiliary to the heating plant in order to make the rooms comfortable. In October, 1916, the boiler was condemned by the city inspector and plaintiff then demanded of defendant that it either install a new boiler or make a connection with the central heating system. Both requests were refused, whereupon plaintiff purchased the only available boiler he could get, and installed it, but this proved to be inadequate. Plaintiff retained the premises and paid the rent up to and including the month of. January, 1918, but failed to pay the rent for the months of February and March, 1918. Defendant served notice on him to quit, and instituted summary proceedings which resulted in his eviction on April 18, 1918. Before vacating the premises he removed the boiler which he installed. After being evicted he commenced this suit, claiming that by reason of the failure of defendant to keep its agreement to connect the system with central heat he was unable to heat the house, and thereby lost his roomers and was greatly damaged thereby. The matter was submitted to the jury and they returned a verdict for him of $1,500.

Appellant asserts that the lease and agreement should have been construed as one paper, and the court should have construed it himself instead of leaving it to the jury to find what the intention of the parties was. Plaintiff claimed that the additional provision inserted in the lease with reference to connecting the premises with central heat made it obligatory upon defendant to connect his heating plant with central heat when the boiler failed. Defendant contended that the lease and agreement construed together relieved it of any further obligation in regard to the heating apparatus during plaintiff's term. Just what the parties meant by these writings the court was uncertain. He thought the language of the two provisions taken together was ambiguous as to this question and, therefore, left it to the jury to determine what the parties meant by the language they used, with the instruction that if they found in accord with plaintiff’s contention he could recover; if they found with defendant’s contention plaintiff could not recover.

We are not prepared to hold that the court was in error in leaving the matter to the jury. We agree with the court that the intention of the parties as shown by the writings is more or less hazy. It is, however, aided to some extent by the extrinsic evidence which was admitted at the trial. Aided by the surrounding circumstances, we think the construction given to it by the jury was the proper one.

It is clear that if there had been no such provision in the lease and no accompanying agreement the defendant would have been under no obligation to connect the plant with central heat. By the insertion of the provision in the lease the defendant, without doubt, obligated itself to connect the premises with central heat in the event the boiler failed. The question therefore arises whether it was the intention of the subsequent agreement to relieve it from that obligation. It does not appear .to us that it has that effect. Both were agreed that repairs were necessary in order to make the house tenantable. It was agreed some repairs to the boiler were necessary. They agreed that it would cost $1,500, and defendant agreed that it would allow him on the rent $1,000 toward the repairs. To provide for these repairs the accompanying agreement was made. When these repairs were made and accepted plaintiff was entitled to no further repairs during his term except his right under the lease to have the heating system repaired or connected with central heat in the event that it proved inadequate. The reason for this lies in the fact that the lease dealt with rights which were continuing during the term of the lease, while the agreement dealt only with repairs which would make the premises tenantable at the time of the commencement of the term. We are unable to see'anything in the agreement which would relieve defendant from its obligation to connect the plant with central heat in the event of its failure to heat the premises. This being, as we think, the proper conclusion, and the jury having reached that conclusion, defendant was not harmed by reason of the fact that the court did not interpret the contract. Cutler v. Spens, 191 Mich. 603. The case comes within the rule that where the language of the writing is ambiguous the question of the intention of the parties may be left to the jury. 6 R. C. L. p. 862, and cases.

Defendant attempted to introduce testimony under its notice of recoupment to show its damages and loss .by reason of the failure of plaintiff to pay the rent during the balance of the term, but this was objected to and .excluded by the court on the ground that it had elected to, and had evicted the plaintiff. This is complained of. as error. We think the ruling was correct. It was said in Royce v. Guggenheim, 106 Mass. 201 (8 Am. Rep., 322), and approved by this court in Kuschinsky v. Flanigan, 170 Mich. 245 (41 L. R. A. [N. S.] 430, Ann. Cas. 1914A, 1228), that:

“The eviction of a tenant from the demised premises either by the landlord or by title paramount, is a bar to any demand for rent, because it deprives him of the whole consideration for which rent was to be paid.”

To the same effect is the case of Wreford v. Kenrick, 107 Mich. 389.

Defendant’s counsel, in support of this assignment, his cited the case of Stott Realty Co. v. Amusement Co., 195 Mich. 690. In that case the general rule was restated by Mr. Justice Fellows, and he drew attention therein to the peculiar wording of the lease which made it an exception to the general rule. As there is nothing in the lease before us which would make it an exception to the general rule, the authority cited is not in point.

The judgment of the trial court is affirmed.

Moore, C. J., and Steere, Brooke, Fellows, Stone, Clark, and Sharpe, JJ., concurred.


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    HELBER v. HARKINS.
    1. Negligence — Personal Injuries — Contributory Negugenoe— Evidence — Question for Jury.
    In an action for personal injuries caused to plaintiff by a collision witb some steps projecting over tbe curb into the pavement, placed there by defendant, tbe failure of plaintiff and his chauffeur to see the obstruction, field, not to constitute contributory negligence as a matter of law.

      On contributory negligence of person injured by material placed in street by individuals, see note in 46 L. R. A. (N. S.) 333.
    General rules as to effect of contributory negligence as affecting liability of municipal corporation for defects and obstructions in streets, see notes in 21 L. R. A. (N. S.) 614; 48 L. R. A. (N. S.) 628.

      2. Same.
    If candid and intelligent men might reach different conclusions on the facts, the question of plaintiff’s contributory negligence was one for the jury.
    S. Same — Proximate Cause.
    It cannot be said that a reasonably prudent person could deliberately put an obstruction in the traveled part of a main thoroughfare in a city without contemplating that some vehicle might collide with it. '
    4. Same — Peeading—Evidence—City Ordinance.
    A city ordinance, counted upon in plaintiff’s declaration, inhibiting the placing of building materials in the street without permission of the board of public works was admissible in evidence as tending to show that defendant was guilty of negligence in placing some steps so that they projected into the traveled way.
    Error to Washtenaw; Sample (George W.), J.
    Submitted April 20, 1920.
    (Docket No. 98.)
    Decided June 7, 1920.
    Case by Adolph Helber against Howard Harkins for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Reversed.

      Andrew J. Sawyer and Henry A. Baker, for appellant.

      Frank B. DeVine and Arthur Brown, for appellee.
   Bird, J.

This is a personal injury case in which a verdict was directed for defendant on the ground that plaintiff was guilty of such negligence, as a matter of law, that he was not entitled to recover. On the morning of May 27,1919, plaintiff was delivering milk to his .customers in the city of Ann Arbor with a Ford truck. ¡Fred Weber, a young man 17 years of age, was driving the truck and plaintiff was delivering the milk. They were going east on the south side of Huron street. They made a delivery at Mr. Crippen’s residence immediately west of defendant’s premises. When the truck started plaintiff stepped onto the runing board to be in readiness to make the next delivery, which was nearby. As the car passed defendant’s premises plaintiff’s legs were struck by some old stairs which protruded over the pavement. This forced his legs against the rear fender with such violence that both ankles were broken. It appears that defendant was rebuilding his house and had placed the stairs on the grass plat between the sidewalk and curb in such a manner that they extended over the pavement about. 18 inches. , The testimony discloses that they had been in this position for several weeks, and that defendant’s attention had been called to their dangerous position by one of the city employees, whose duty it was to see that the street was kept clean.

Was plaintiff guilty of contributory negligence, as a matter of law? The trial court was of opinion that he was. Plaintiff’s counsel insist that the question was one for the jury. The trial court appears to have been moved to its conclusion by the fact that the obstruction was in plain view and ought to have been observed by plaintiff or his chauffeur. The record does show that it was daylight and that the protruding end of the stairs could have been seen if one were looking in that direction. The chauffeur testified that he did not see it, that his attention was taken in starting the car and looking out for passing traffic. Plaintiff testified he did not observe it, that as he stood on the running board he was facing the sides of the car and looking to the north. We are unable to see in the acts of either plaintiff or his chauffeur such a departure from what an ordinarily prudent person would have done, under similar circumstances, that we should say plaintiff was guilty of contributory negligence, as a matter of law. The attention of the average driver is taken, to some extent, when starting his car. Besides this he is usually concerned about keeping clear of other people using the street. The ordinary obstruction encountered along a paved way is usually of sufficient size and proportion to arrest the attention. The one in question was small, near the ground, and did not extend far into the traveled way. We cannot escape the conclusion that these, and other considerations, lead the question into the domain of fact. If candid and intelligent men might reach different conclusions on these facts, the question was. one for the jury. Amanta v. Railroad Co., 177 Mich. 280. It is possible that either plaintiff-or his chauffeur should have observed the obstruction and avoided it, and maybe a jury, under all the circumstances, will so conclude, but we do not feel that we should say so, as a matter of law.

The court, in disposing of the case, said to the jury:

“The damages which are to be recovered in a court action must always be the natural and approximate consequences of the wrongful act complained of. If a new force or power has intervened that is sufficient to stand as the cause of the mischief or injury, the first must be considered as too remote, that is, the wrongful or negligent act must be the direct cause of the injury complained of. I think this act of driving this automobile in the street is an independent, intervening act, which could not have been contemplated or anticipated by the defendant when he placed the stairs in the position that they were.”

This is only another way of stating that plaintiff was guilty of contributory negligence, as a matter of law. Of course, if plaintiff was guilty of negligence, which caused or contributed to his injuries, his negligence would be the proximate cause of his injuries. 29 Cyc. p. 505. But if the court was going to treat the question from that aspect he should have submitted the question of proximate cause to the jury.

We are unable to concur in the court’s conclusion that the “driving of the automobile in the street was an independent, intervening act, which could not have been contemplated or anticipated by the defendant when he placed the stairs in the position that they were.” Huron street is one of the main thoroughfares of Ann Arbor. It was constructed and is maintained for the passage of pedestrians, teams, and vehicles, and for no other purpose. We hardly think it should be said that a reasonably prudent person could deliberately put an obstruction in the traveled part of the way without contemplating that some vehicle might collide with it.

Plaintiff counted, in his declaration, upon a city ordinance, which inhibited the placing of building materials in the street without permission of the board of public works. Upon the trial this ordinance was offered in evidence by plaintiff, but was excluded by the court. We think this was error. The ordinance was admissible as tending to show that defendant was guilty of negligence in placing the obstruction in the street. Westover v. Railway Co., 180 Mich. 373.

Inasmuch as there must be a retrial, we think it will be unnecessary to consider the other questions raised. The judgment is reversed, with a new trial. Plaintiff will recover his costs in this court.

Mooee, C. J., and Steeee, Beooke, Fellows, Stone, Claek, and Shaepe, JJ., concurred.


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    STEVENS v. N. Z. GRAVES CORPORATION. LANG v. SAME.
    1. Continuance — Illness oe Witness — Discretion oe Court— Abuse oe Discretion.
    Where the conduct of defendants’ counsel was not such as to inspire a belief in the mind of the court that they intended to make a good-faith defense on the merits, the denial of a continuance on an oral application on the ground that defendants’ president was ill, held, not an abuse of discretion.
    2. Same — Not a Matter oe Right.
    The allowance of a continuance on account of the illness of a party or an important witness is not a matter of right, but rests in the sound discretion of the court.
    Continualice because of illness of party, see note in 42 L. R. A. (N. S.) 660.
    Error to Wayne; Webster (Clyde I.), J.
    Submitted April 9, 1920.
    (Docket Nos. 33, 34.)
    Decided June 7, 1920.
    Separate actions of assumpsit in justice’s court by Albert I. Stevens and Edward P. Lang against N. Z. Graves Corporation and another for services rendered. There were judgments for plaintiffs by default, and defendants appealed to the circuit court where the cases were consolidated. Judgments for plaintiffs. Defendants bring error.
    Affirmed.

      Guy W. Moore and Hal P. Wilson, for appellants.

      Sherman D. Callender, for appellees.
   Bird, J.

Both of these cases were begun in justice’s court. Inasmuch as both were dependent upon the same state of facts they were, by agreement of counsel, tried together in the circuit court and judgments followed for the plaintiffs. The cases are here for review on complaint of defendants that the trial court was in error in refusing a continuance therein on their application.

The record discloses that the cases were at issue in justice’s court on May 24, 1918. Six adjournments followed on the representation of counsel that defendants desired to bring witnesses from the east to testify therein. Later counsel appeared to have agreed that there was something due plaintiffs, but they were unable to agree on the exact amount. On August 26, 1918, judgment by default was taken against defendants and in favor of Stevens for the sum of $464.51, and one in favor of plaintiff Lang for $460.34. On August 31st defendants appealed therefrom to the circuit court and the cases were on the docket for the June term of the circuit court. When reached defendants’ counsel requested a continuance on the ground that N. Z. Graves could not be present. This was finally agreed to by plaintiffs’ counsel on condition that the cases should be disposed of iif the September term of court without further adjournments. When the cases were reached at the September term defendants’ counsel made an oral application for a continuance on the ground that N. Z. Graves, president of the defendants, was ill. No affidavit was filed, nor showing made except the statement of counsel. The motion was denied and the cases were heard by the court without the aid of a jury, and judgments rendered therein. Subsequently a motion was made for a new trial because of the denial of the motion for continuance, and affidavits were then, filed showing the illness of N. Z. Graves, but this motion was denied.

We think there is nothing in the history of these cases upon which we could base' a holding that the trial court had abused its discretion in denying the application for continuance. The conduct of defendants’ counsel, from the inception of the cases in justice’s court up to the time of talcing judgment in the circuit court was not such as to inspire a belief in the mind of the court that they intended to make a good-faith defense on the merits. Ordinarily the first application for continuance on account of the illness of a party, or an important witness, is given careful consideration by the courts, but even the allowance of the first application on account of illness, is not' a matter of right, but rests in the sound discretion of the court. People v. Eamaus, 207 Mich. 442.

Finding no abuse of discretion on the part of the trial court, the judgments must be affirmed.

Moore, C. J., and Steere, Brooke, Fellows, Stone, Clark, and Sharpe, JJ., concurred.


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    BRYANT & DETWILER CO. v. PETERMAN.
    1. Garnishment — Dismissal—Pleading—Counts.
    In an action for damages on a contract which defendant refused to perform, where plaintiff had made an advance payment of $750, the court properly refused to dismiss a suit in garnishment on the ground that the damages under the special count were uncertain, speculative, and unliquidated, since if plaintiff should take the position that it had paid defendant for a privilege which was subsequently denied it, and that the consideration had failed, it would he entitled to recover the $750, with interest, under the common counts without the aid of the special . count.

      2. Same — Claim of Plaintiff — Failure to Demand Bill of Particulars.
    Where defendant failed to demand a hill of particulars advising him of plaintiff’s claim, he cannot talie the position that plaintiff will mate no claim other than the one presented in the special count.
    Certiorari to Wayne; Goff (John H.), J.
    Submitted April 13, 1920.
    (Docket No. 45.)
    Decided June 7, 1920.
    Assumpsit by Bryant & Detwiler Company against Joseph S. Peterman for damages caused by breach of a contract, at the same time instituting garnishment proceedings for moneys paid under the contract. From an order denying a motion to dismiss the garnishment proceedings, defendant brings certiorari.
    Affirmed.

      James M. Cleary, for appellant.

      Clark, Emmons, Bryant, Klein & Brown, for appellee.
   Bird, J.

The parties to this suit entered into a contract by which defendant agreed to furnish plaintiff a dumping ground on the rear of his lot, No. 1510 Jefferson avenue, east, in the city of Detroit, for a large quantity of earth, and plaintiff agreed to, and did, make an advance payment of $750 for the privilege. For some reason, which does not clearly appear,' defendant refused to carry out the contract, so plaintiff began this suit in assumpsit to recover its damages, and also began a suit in garnishment against the Peninsular State Bank. Defendant moved to dismiss the suit in garnishment principally for the reason that the claim made in the special count of the declaration, for which damages were sought, was uncertain, speculative and unliquidated. The trial court denied the motion. The trial court rested his refusal to dismiss the garnishment proceedings upon the ground that the declaration included the common counts. This appeals to us as an adequate reason. As the pleadings now stand it is uncertain what the nature or extent of plaintiff’s claim will be upon the trial. If it should take the position that it had paid defendant $750 for a privilege, which was subsequently denied it, and that consequently the consideration had failed, it would be entitled to recover the $750, with interest thereon, under the common counts without the aid of the special count. Wright v. Dickinson, 67 Mich. 580; Ripley v. Case, 78 Mich. 126; Fitzpatrick v. Hoffman, 104 Mich. 228; Murphy v. Dalton, 189 Mich. 79.

Other claims in assumpsit might be made, which are recoverable under the common counts. Until it is known that plaintiff’s particular claim is not recoverable under the common counts the proceedings ought not to be dismissed. Had the declaration contained nothing but the common counts, it could hardly be urged that the motion should have been granted. But counsel says all the declaration shows is the claim for damages, and that no other claim is made. Had counsel demanded a bill of particulars under the common counts he would have been advised whether plaintiff made any other claim. Not having done so he is not in a position to state whether plaintiff will make any other claim than the one presented in the special count. We think the conclusion reached by the trial court was the proper one.

In view of our having reached this conclusion it will be unnecessary to consider the question, which is much argued in the briefs, whether the special count will support the garnishee proceedings.

The writ of certiorari will be dismissed, with costs to the plaintiff.

Mooee, C. J., and Steeee, Beooke, Fellows, Stone, Claek, and Sháepe, JJ., concurred.


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    NIEMETTA v. TEAKLE.
    1. Specific Performance — Courts—Equity—Jurisdiction of Subject Matter.
    In a suit by the lessees for tbe specific performance of a lease of property" situate in the city of Detroit, after its expiration, where plaintiffs prayed for.the discharge of a mortgage on property in Macomb county executed by them to secure the faithful performance of the lease, the circuit court of Wayne county had jurisdiction whether the action was local or transitory, since the dispute arose oyer property situate in said Wayne county, and both parties resided therein and were before the court and subject to its orders, and although under 3 Comp. Laws 1915, § 12340, subd. 12, it could not send its decree into Macomb county and give it full force, it could compel defendant to execute a release, which when placed on record would give plaintiffs the relief they seek.
    2. Same — Jurisdiction—Adequate Relief — Pleading.
    Where defendant had asked for no affirmative ■ relief upon the merits, he could not question the jurisdiction of the court on the ground that it could not give him adequate relief by decreeing foreclosure of the mortgage on property situate in another county, since whether adequate, relief may be had is usually tested by the relief prayed for in the pleadings, and not by what the parties may conclude to ask for at some future time.
    3. Same.
    In view of the fact that all parties were before the court and no serious barriers in the way which would prevent an equitable .adjustment of the matters involved, the decree dismissing the bill will be reversed and the cause remanded to the court below for further proceedings.
    Appeal from Wayne; Webster (Arthur), J.
    Submitted April 15, 1920.
    (Docket No. 86.)
    Decided June 7, 1920.
    Bill by Charles G. Niemetta and another against Kobert T. Teakle for the specific performance of a lease. From a decree dismissing the bill, plaintiffs appeal.
    Reversed, and remanded.

      Frederic T. Harward, for plaintiffs.

      Charles R. Robertson, for defendant.
   Bird, J.

Defendant rented to plaintiff Charles G. Niemetta the “OlanCho apartments,” situate at 295 and 297 Cass avenue, in the city of Detroit, for five years at $300 a month, and gave him a written lease therefor. The lease contained a clause providing that plaintiff should, at his own expense during the continuance of the lease, keep the premises and every part thereof in as good repair as when taken.. In order to secure the payment of the rent plaintiff deposited $300 with defendant which was to apply on and pay the rent for the final month of his term. In addition to this, plaintiff and his wife executed a mortgage in the sum of $2,000 on certain real property which he owned in the county of Macomb, and delivered the same to defendant to secure the faithful performance of the stipulations in the lease. The lease refers to the mortgage and provides for a discharge thereof upon performance of its conditions.

At the expiration of the lease plaintiff vacated the premises and demanded a release of the mortgage. Defendant refused to comply with the demand on the ground that plaintiff had not performed his engagement to keep the premises in repair, and for the further reason that he had committed waste on the premises. The parties being unable to • agree as to their respective rights and duties, plaintiff filed this bill in the Wayne circuit court praying for a specific performance of the lease.

The issue on the merits before the chancellor was, therefore, whether plaintiff had discharged his obligations under the lease. Considerable testimony was taken bearing thereon. At the close of the testimony defendant raised the question which he had given notice of in his plea and answer, that the court was without jurisdiction to decree adequate relief by reason of the fact that the mortgaged premises were situate in the county of Macomb. After some discussion the chancellor took defendant’s view of the jurisdictional question and dismissed plaintiff’s bill. Plaintiff is here on appeal insisting that the trial court was wrong in this conclusion.

Defendant, to support his plea, argues that plaintiff should have commenced his suit in the county where the mortgaged premises are situate, and cites the statute which provides that “every suit in chancery shall be commenced in the circuit court for the county in which the property in dispute is situated, if the subject matter is local,” etc. 3 Comp. Laws 1915, § 12340, subd. 42.

It is clear that the Wayne circúit court had jurisdiction of the controversy growing out of the lease because that dispute arose over property situate in Wayne county, and both parties resided therein and both were before the court. And this is true whether the action be local or transitory. If the chancellor had reached the conclusion that plaintiff had discharged his obligations under the lease, it is equally clear that he could have ordered defendant to execute a release of the mortgage, and had he refused he could have compelled obedience by attachment. Noble v. Grandin, 125 Mich. 383. In the case cited the Wayne circuit court refused to set aside a deed to lands in Missouri .and order a reconveyance thereof, and the decree was reversed by this court. In doing so, the court cited, with approval, what was said in Gardner v. Ogden, 22 N. Y. 327 (78 Am. Dec. 192), on the power of the court to make decrees affecting property beyond its jurisdiction. In part the New York case says:

“The supreme court of this State, as a court of equity, could not, therefore, take jurisdiction of an action for the recovery of lands situate in another State, where the proceeding was in rem; but, where it has jurisdiction of the proper parties, it may by its judgment or decree compel them to do equity in relation to lands located without its jurisdiction. The court in such case acts in personam. We regard this as so well settled by authority that it cannot longer be seriously questioned.”

See, also, Dunlap v. Byers, 110 Mich. 109; Niles v. Lee, 169 Mich. 474.

In the instant case the court had jurisdiction of the parties and they were subject to its orders. It is quite true that, by reason of the statute cited, the Wayne circuit court could not send its decree into Macomb county and give it there the same force as a regularly executed release would have, but it could compel defendants to execute one, and when placed on record in Macomb county, plaintiffs would have the relief which they seek. Were this a suit in rem, counsel would be right in his contention that the court would be without jurisdiction to grant adequate relief because its decree filed in Macomb county would not operate to release the mortgage, and defendant could not be compelled to release because not before the court.

But defendant argues that the relief is noi>adequate because the Wayne county court could not decree foreclosure of his mortgage, if it should find plaintiff had not discharged his obligations under the lease. One very good answer to this is that defendant has asked for no such relief. The question whether adequate relief may be had is usually tested by the relief prayed for in the pleadings, and not by what the parties may conclude to ask for at some future time. Defendant has asked for no affirmative relief upon the merits. But in the event that he had, and the court had found that the plaintiff had not discharged his obligations under the lease, the decree of the court would find the sum due defendant and order plaintiff to pay it as a condition of release. If the condition were not performed defendant could foreclose his mortgage by advertisement as the mortgage contains a power of sale which expressly authorizes him to foreclose by making a sale of the property at public vendue.. In this way he would avoid further litigation.

To support, his contention that the relief is inadequate counsel places much reliance on the case of Wipfler v. Warren, 163 Mich. 189. We think that case is clearly distinguishable from the one under consideration. There were other questions involved in that case beside the cancellation of a mortgage, as will be disclosed by the concluding language of the opinion:

“But to the extent that we are called upon to determine those issues, effective and complete determination involves a disposition óf a fund still in the hands of a receiver of a court other than the court asked to render the required decrees.”

In view of the fact that all parties were before the court we see no serious barriers in the way which would prevent the Wayne circuit court from compelling an equitable .adjustment of the matters involved.

The decree will be vacated and the record remanded to the trial court for such further proceedings as are consistent with the rules and practice of that court. Plaintiffs will recover costs of this court.

Moore, C. J., and Steere, Brooke, Fellows, Stone, Clark, and Sharpe, JJ., concurred.


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      In re BROWN’S ESTATE. BROWN v. BROWN.
    1. Executors and Administrators — Probate Courts — Appeals— . Delayed Appeal — Statutes.
    Where a showing is made that an heir has been misled to his prejudice by the administrator of the estate, who profits by it, a case is made for relief under the statute authorizing delayed appeals from the probate court (3 •Comp. Laws 1915, § 14156).
    2. Same — Attorney’s Fees — Claims Against Estate.
    If the needs of the estate did not require the income or proceeds of the real estate, the administrator would have no authority to bind the estate for his own and counsel’s services in attending condemnation proceedings.
    3. Appeal and Error — Abuse op Discremon — Delayed Appeal— Probate Courts.
    While orders of the circuit court in respect to delayed appeals from probate courts under 3 Comp. Laws 1915, § 14156, are discretionary and not reviewable except for abuse of discretion, the denial of an appeal, on the ground that plaintiff had an adequate remedy at law, after .a showing entitling her to relief, held, to be an abuse of discretion.
    On liability of estate to attorney employed by representative, see note in 25 L. R. A. (N. S.) 72.
    Appeal from Wayne; Driscoll (George O.), J., presiding.
    Submitted April 8, 1920.
    (Docket No. 19.)
    Decided June 7, 1920.
    Rehearing denied October 13, 1920.
    Petition by Anna Brown against Charles F. Brown for an appeal from an order of the probate court allowing defendant’s account as administrator of the estate of Henry C. Brown, deceased. From an order denying the petition, plaintiff appeals.
    Reversed.

      James Swan, for plaintiff.

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

Plaintiff made application to the Wayne circuit court to have a delayed appeal from probate court allowed under 3¿’Comp. Laws 1915, §§ 14156, 14157. The circuit court refused to grant the appeal and we are asked to review its order of denial. It appears from plaintiff’s petition that she is the owner of a one-fourth interest in the estate of Henry C. Brown, deceased. That soon after purchasing the said interest from her husband she employed counsel to look after it because she was then, as well as now, a resident of the city of Chicago. That while said counsel was so employed she had a talk with Charles F. Brown, an owner of a one-fourth interest in said estate, and also the administrator thereof, who advised her that it was unnecessary for her to have an attorney, and that she had better get rid of him as there were no claims against the estate. Acting upon this advice she discharged her attorney and has not since been represented by counsel in any of the probate proceedings. After discontinuing the services of her counsel, the city of Detroit began condemnation proceedings against the real estate left by the said Henry C. Brown, and each heir or assignee was made a party thereto. Neither the administrator nor the estate was made a party. Notwithstanding this the administrator employed counsel to look after the estate at the time of the hearing of the condemnation proceedings and paid him therefor the sum of $600, and also charged the estate for his own services in looking after said proceeding the sum of $300. It is further shown by the petition that other illegal claims were paid amounting in all to $1,292. It is further stated that the administrator’s account was allowed on the 4th day of May, 1917, but that plaintiff did not learn of it until March, 1918, and that in April, 1918, she filed this application in said court for permission to appeal therefrom.

The statute authorizing delayed appeals provides that:

“If any person aggrieved by any act of the judge of probate, or by the determination of commissioners on claims, shall from any cause, without default on his part, have omitted to claim or prosecute his appeal, according to law, the circuit court, if it shall appear that justice requires a revision of the case, may, on the petition of the party aggrieved, and upon such terms as it shall deem reasonable, allow an appeal to be taken and prosecuted with the same effect as if it had been done seasonably.” 3 Comp. Laws, § 14156.

The showing made by plaintiff, 'if true, would appear to entitle her- to relief. It clearly shows that she was misled to her prejudice by her brother-in-law, the administrator. If the needs of the estate did not require the income or proceeds of the real estate, the administrator would have no authority to bind the estate for his own and counsel’s services in attending the condemnation proceedings. Beside these claims it is asserted that other illegal claims were allowed against the estate. Where a showing is made that an heir has been misled to his prejudice by the administrator of the estate, who profits by it, a case is made for relief under this statute. Indeed, the trial court appears to have been impressed that plaintiff was entitled to some relief, but he suggested she had a remedy at law. If plaintiff is entitled to relief we think it desirable that it should be granted in this proceeding rather than in a separate proceeding.

While these orders are discretionary with the court and are not reviewable, except for abuse of discretion (Smith v. Wayne Circuit Judge, 82 Mich. 93; Sanborn v. St. Claire Circuit Judge, 94 Mich. 519, 526), we think, under all the circumstances of this case, we should hold that there was an abuse of discretion in denying the application. The order will be set aside and one entered allowing the appeal as prayed upon such terms as the court deems just. Plaintiff will recover costs in this court.

Moore, C. J., and Steere, Brooke, Fellows, Stone, Clark, and Sharpe, JJ., concurred.


author: Sharpe, J.

text:
    NEIDHOLD v. HENRY.
    1. Equity — Pleading—Contribution—Showing—Sufficiency.
    Allegations thati the parties were sureties • upon certain notes, copies of which were annexed to the bill, that they were jointly and severally liable thereon, that plaintiffs had been compelled to pay them, and that defendant had refused to contribute his share thereof, TielA, sufficient to entitle plaintiffs to relief, and although there may have been a discrepancy in the date of some of the notes, such defect was amendable.
    2. Process — Error in Date — Irregularities.
    Errors in the dates of issuance and return day of a subpoena were mere irregularities which in no way misled the defendant, since he was notified that he must enter his appearance within 15 days after service; the only purpose of stating a return day therein being to advise the officer within what time such service must be had.
    3. Judgment — Equity—Reiief for Fraud.
    A court of equity has power to grant relief from a decree obtained by fraud.
    4. Same — Fraud—Burden of Proof.
    The neglect of a defendant who has been duly served to appear and defend the suit imposes on him the duty of establishing fraud in a suit by bim to set aside tbe decree.
    5. Same — Peejtjbed Testimony Insueetcient to Set Aside Decbee. Tbe charge tbat a decree was obtained on perjured testimony is not sufficient to set it aside for fraud.
    Appeal from Iron; Flannigan (Richard C.), J.
    Submitted April 14, 1920.
    (Docket No. 67.)
    Decided June 7, 1920.
    Rehearing denied October 13, 1920.
    Bill by Edward Neidhold against Louis A. Henry and others to enjoin an execution levy and sale. From the decree entered, plaintiff appeals.
    Affirmed.

      Julius J. Patek, for plaintiff.

      Clarence D. Dwyer (Fred H. Abbott, of counsel), for defendants.
   Sharpe, J.

On December 19, 1913, the defendants herein filed a bill of complaint in the circuit court for the county of Iron, in chancery, alleging that they had been required to pay three certain promissory notes on which the plaintiff was jointly liable with them as a co-surety, and praying that plaintiff should be decreed to pay to them the sum of $718.75, being his proportionate share of such amount. The calendar entries show the filing of the bill on the date above stated and that a subpoena was issued on the same day. The subpoena, however, bears date December 18th. It was in the usual form and required the defendant to appear within 15 days after service. The return day was erroneously stated to be the 19th day of January, 1913, instead of 1914. It was personally served on the plaintiff herein (defendant therein) on December 24, 1913. He neglected to appear, and on February 3, 1914, the bill was taken as confessed, and after proofs were submitted a decree rendered against him for $868.81 and costs, taxed at $22. Before enrollment, an execution was issued and levied on certain lands of defendant therein. While being advertised, the defendant filed the bill of complaint herein, in which he alleged that he signed the notes involved in the suit above referred to on the understanding that two other stockholders should also sign them; that certain lands were to be purchased with the proceeds thereof and the title taken in the name of the defendant Henry as trustee to secure the sureties against loss; that the property purchased was surrendered and conveyed by Henry to the trustee in bankruptcy of the maker of such notes, and that such act was, a fraud on the rights of the plaintiff. It also set up the errors, in the dates, of the issuance and return day of the subpoena, and alleged a want of jurisdiction to render the decree on account thereof. It also alleged that the execution issued before the enrollment of the decree and on which the levy was made was void. The prayer was for an injunction to prevent a sale of the land levied on, for vacating the decree and for general relief.

Defendants, answering, admitted the allegations relative to the subpoena, and, after demurring to the other charges in the bill, subsequently, without waiving their rights, answered generally, denying all the material allegations thereof.

At the conclusion of the proofs, plaintiff’s counsel, during the argument, asked leave to amend the bill to charge that he was not a surety but an accommodation indorser and that the notes were altered without his knowledge or consent and he released from liability thereby. The application to amend was refused by the circuit judge, who filed an exhaustive opinion, holding that no fraud had been proven, that the court had jurisdiction to render the decree in the pro confesso case, and that plaintiff was bound thereby. He, however, held that the execution had «been prematurely issued and restrained the defendants from further proceedings under it, but without prejudice to their right to issue a new execution when the decree should be enrolled. From the decree entered, which allowed costs to plaintiff, he now appeals.

It is insisted that the original bill did not contain a sufficient showing to entitle plaintiffs to relief. Without quoting from it at length, we agree with the trial judge that the allegations were sufficient to authorize and support the decree made. It alleged that the parties were sureties upon the notes, copies of which were annexed to the bill, that they were jointly and severally liable thereon, that defendants had been compelled to pay them and that plaintiff had refused to contribute his share thereof. While there might have been a discrepancy in the date of some of the notes, such a defect was amendable.

The errors in the dates of issuance and return day of the subpoena were mere irregularities. The plaintiff was in no way misled thereby. He was notified by the subpoena that he must enter his appearance within 15 days after its service on him. The only purpose of stating a return day therein is to advise the officer within what time such service must be had.

The plaintiff in no way accounts for his neglect to enter an appearance and defend the suit. He does not claim that he was prevented from doing so by any fraud or deception practiced on him. The order pro confesso was entered in due course and the decree, based thereon after proofs had been submitted, regularly obtained. The power of a court of equity to grant relief from a decree obtained by fraud is conceded. But the neglect of a defendant who has been duly served to appear and defend the suit imposes on him the duty of establishing such fraud. The charge that the decree was obtained on perjured testimony is not sufficient. In the somewhat recent case of Becker v. Welch, 206 Mich. 613, this court so held. The Michigan cases are therein collected and the question fully discussed.

After a careful reading of the record, we agr.ee with the trial judge that the proofs submitted were not sufficient to justify vacating the decree.

The decree is therefore affirmed, with costs to defendants.

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