source: Caselaw Access Project

author: Bird, C. J.

license: Public Domain

text:
    MURPHY v. BIG RAPIDS WATER POWER CO.
    1. Waters and Watercourses — Flowage Rights — Riparian Rights — Grant—Reservation.
    In a proceeding by tbe owner of lands along a river bank to compel defendant to lower its dam, a record showing that the flowage rights vesting in defendant’s and plaintiffs common grantor were reserved, held, sufficient to sustain the finding of the court below that defendant had not obtained such flowage rights by grant.
    2. Same — Prescription—Evidence—Sufficiency.
    Conflicting testimony as to height of water carried in defendant’s dam in the past, held, insufficient to establish its right of increased flowage of plaintiffs land by prescription.
    3. Same — Flooding Lands — Damages—Decree.
    Decree of court below, providing as an alternative to lowering the dam the furnishing of an electric pump and electricity to operate same perpetually to compensate plaintiff for destruction of spring water and hydraulic ram by flooding, modified by substituting a money consideration of $1,500 as an alternative.
    See notes in 59 L. R. A. 817, 874; 28 L. R. A. (N. S.) 156.
    Appeal from Mecosta; Miner, J., presiding.
    Submitted April 12, 1918.
    (Docket No. 75.)
    Decided February 7, 1919.
    Bill by Michael J. Murphy against the Big Eapids Water Power Company to compel defendant to lower the height of a dam. From a decree for plaintiff, defendant appeals.
    Modified, and affirmed.

      Nichols & Nichols, for plaintiff.

      Broomfield & Worcester, for defendant.
   Bird, C. J.

Plaintiff filed his bill in the Mecosta circuit court, in chancery, praying for a mandatory injunction to compel defendant to lower the height of its dam across the Muskegon river at Big Rapids. The trial court granted plaintiff relief and defendant appeals.

Defendant is a corporation by virtue of Act No. 232 of the Laws of 1863, and amendments thereto (2 Comp, Laws 1897, §§ 6767-6822 [2 Comp. Laws 1915, §§ 8867-8919]). It was incorporated in 1881 and its corporate powers were renewed in 1911. Its members, or stockholders, are seven in number: One municipal corporation, one copartnership and five industrial corporations, all of which utilize the water power.

Plaintiff owns lots 1 and 2 of Chew’s addition to the city of Big Rapids; also lots 5 to 13 inclusive in River block, Brown’s addition to the city of Big Rapids. These lots lie immediately west of the river and are situate about 80 rods above the dam. The banks of the river at this point are somewhat bluffy. Soon after the plaintiff purchased these premises in 1901 he discovered three springs at the rear of one of the lots in a small indentation or bay, located two or three feet above high water mark. In 1912 he installed an hydraulic ram, which elevated the spring water into his. house, barn and lawn tank, thereby furnishing him an excellent water system. A flood in 1913 carried away the old dam which had been in existence since 1866, and a new one was erected in 1914. The new one was erected so that the water could be carried much higher than with the old one. Soon after the new dam was erected the water commenced to gradually rise and continued until plaintiff’s springs were submerged and the hydraulic ram choked, in consequence of which his water system was destroyed. His position is that the water has been raised by the new dam and is carried from two to three feet higher than it was with the old dam. The defendant denies this and asserts that:

(1) The water is carried no higher with the new dam than with the old.

(2) That if it be higher it has the right by grant to so carry it.

(3) That it has a prescriptive right to carry it to the present level.

Considerable testimony was offered by the parties bearing upon the height of the water under the old and new dams, and at the conclusion of the hearing the chancellor found the water was carried higher with the new dam than with the old, and that defendant had no right to do this, either by grant or by prescription, and an alternative decree was made providing that defendant should install an electric pump for plaintiff and furnish him and his heirs and assigns electricity to operate it, or lower the height of the dam 15 inches. From this decree defendant appeals and discusses the same questions which were raised and discussed in the trial court.

1. We agree with the chancellor that defendant has not established the right of flowage by grant. Formerly the flowage rights appurtenant to plaintiff’s lands, as well as to the factory sites now owned by the constituent members of defendant, rested in the Tioga Manufacturing Company. When the Tioga Manufacturing Company conveyed the fee of these lands it reserved the flowage rights. The Tioga Manufacturing Company was a corporation and was at that time engaged in the manufacturing business on the river. Its assets subsequently passed into the hands of J. Platt Underwood, as trustee. They included these flowage rights, and so far as the record shows, they still reside there. This being so, it follows that neither defendant nor plaintiff is possessed >of the flowage rights appurtenant to plaintiff’s lands. It is, therefore, clear that defendant cannot exercise this right on the theory of a grant.

In holding that defendant is not protected by grant we have not overlooked the argument of defendant’s counsel, in which it is urged that the practical construction given to prior grants by plaintiff’s and defendant’s predecessors in title would fix the height at which the water might be carried. This argument might have some persuasive force were it not for the fact that it rests upon a question of fact, namely, whether the water was really carried as high at that time as at the present time. This question of fact is the same question of fact that is involved in the other claim of defendant, namely, that it has a prescriptive right to flow the lands up to the present height.

2. We are not impressed that defendant has established its right off increased flowage of plaintiff’s land by prescription. The testimony was, of course, in conflict. Several witnesses testified that the water was being carried no higher than it had been in the past with the old dam. Plaintiff’s proofs show that the water is carried much higher with the present dam and that the increased capacity of the new dam' has been utilized in part. Witnesses who have been familiar with the springs for many years, some of whom helped to install plaintiff’s water works, testified that the water was carried at a level much below the springs. It is also shown that the water from these springs was utilized by some of plaintiff’s predecessors in title, and that plaintiff has used the water from these springs for domestic purposes since his purchase in 1901, and that now they are submerged.

3. Much attention has been given by counsel in their briefs to the character of the relief granted plaintiff by the trial court. Defendant’s counsel contend that if this court disagrees with their contention upon the merits that it is a case where injunctive relief ought not to be granted but damages instead should be fixed because the injury which would result to defendant if it were obliged to lower the dam would greatly outweigh the grievance of the plaintiff. Fox v. Holcomb, 32 Mich. 494; Hall v. Rood, 40 Mich. 46 (29 Am. Rep. 528); City of Big Rapids v. Comstock, 65 Mich. 78.

During the progress of the hearing plaintiff offered in open court to discontinue the case if defendant would pay the costs, on condition that it would install an electric pump and furnish plaintiff, his heirs and assigns, electricity to operate it. In view of this offer and the very large industrial interests which rely on this water power, we think the chancellor was right in recognizing and applying this principle to the extent at least of permitting defendant to compensate plaintiff without injury to its water power. We are not impressed, however, that one of the alternatives laid down by him is. the best that can be prescribed. To install a pump, keep it in operation and furnish electricity to operate it, practically in perpetuity, is not as desirable as a money consideration. Such an arrangement would require much bookkeeping and accounting on the part of the defendant and would give rise to endless controversy, and if, at the end of defendant's corporate existence, its charter should not be renewed, another difficulty would arise. There is not much testimony in the record bearing on the question of damages. The only direct proof of the damages comes from the testimony of the plaintiff, who stated that they were $1,500. To supply an equally efficient service plaintiff would be obliged to connect with the city system, the nearest hydrant of which is 700 feet away. Or a windmill or an electric pump could be installed. Either one of the latter methods would give plaintiff the benefit of the spring water for domestic purposes. The other method, of course, would not. Any one of these methods involves installation and maintenance charges. To be deprived of a system of water works as inexpensive as the present one, and one furnishing as wholesome water as it does for domestic purposes, is to be deprived of a valuable right, and where the courts apply this equitable rule full compensation should be awarded. We are disposed to alter the decree by substituting a provision for the payment of $1,500, for the alternative that defendant should install an electric pump and furnish electricity to operate the same. Defendant will be required to make and file an election within 30 days after this opinion is filed. In the event that no election is filed and no payment is made within that time, the dam will be reduced in height in accordance with the decree of the trial court.

Subject to this change the decree may be affirmed without costs to either party in this court.

Ostrander, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


author: Steere, J.

text:
    FIRST NATIONAL BANK OF YALE v. HARNDEN.
    1. Frauds, Statute of — Interest in Lands — Parol Agreement.
    A parol agreement between a son and bis father and stepmother whereby the son worked an 80-acre farm, the title to which was in himself and a brother subject to a life estate in the parents and survivor, whether it be called a trust or power over or concerning the land, or an estate or interest in lands, or a lease exceeding a year, was void under the statute of frauds (3 Comp. Laws 1915, § 11975), and at most was good onlyras a lease for a year.
    2. Creditors’ Bill — Amount Due Judgment Debtor — Inferences.
    A creditor’s bill, filed to reach assets of a father in the hands of a son who worked a farm for the father and stepmother under a parol agreement with no definite time of tenure or payment to give them their support, where nothing was shown or inferable as due, was properly dismissed.

      See notes in 15 L. R. A. (N. S.) 330; L. R. A. 1915E, 563.

      3. Fraudulent Conveyances — Reservation of Life Estate — Creditors’ Bill — Imputation of Fraud.
    No fraud in the conveyance of a farm from parents to a son, reserving a life estate, can be imputed to them on suit by judgment creditor’s bill for a debt incurred by the father 15 or 16 years after the conveyance.
    See note in 42 L. R. A. (N. S.) 1213.
    Appeal from St. Clair; Law, J.
    Submitted October 18, 1918.
    (Docket No. 93.)
    Decided February 7, 1919.
    Judgment creditor’s bill by the First National Bank of Yale, Michigan, against Andrew J. Harnden and others. From a decree dismissing the bill, plaintiff appeals.
    Affirmed.

      Jay B. Weymouth, for plaintiff.

      C. F. Gates, for defendants.
   Steere, J.

On November 2, 1899, defendants Andrew J. Harnden and Mary, his wife, conveyed to defendant George Hamden by warranty deed the S. W. % of the S. E. % of section 35, town 10 north, of range 14 east, in the county of Sanilac, for an expressed consideration of one dollar, with the following reservation:

“It being especially provided that the said parties of the first part hereby reserve the entire use, profit, possession and control of the said premises for and during their natural lives, jointly, and also during the life of the survivor. It is also especially provided and agreed that the said party of the second part shall pay all taxes and assessments against said premises; also agreed that the said party of the second part shall clear said premises from all existing incumbrances and shall keep the same clear with the exception of a mortgage of $250 to be made and fully paid according to its terms by the said party of the second part.”

On the same day they conveyed to Eber Harnden by warranty deed the southeast quarter of the northeast quarter of the same section for an expressed consideration of one dollar with the same reservations and recitals above quoted. These instruments were duly recorded in the office of the register of deeds of Sanilac county.

Andrew J. Harnden is the father of the grantees George and Eber Harnden. Mary J. Harnden, whom he married not very long before the date of these conveyances, is his second wife and their stepmother. He was at that time about 60 years of age, and she about 40. The land conveyed as stated was for many years owned, cultivated and occupied by Andrew J. Harnden with his wife and family, until his children were grown and his home broken up by the death of his then wife. He thereafter lived at the old home with his son George until his second marriage, in 1899, when he went to live with his present wife, who then ran a store and had a house in the village of Yale, some ten miles distant from his old home farm, which George occupied and worked.

What, if any, occupation Andrew J. Harnden followed or what other resources he had after 1899 does not appear, but in September, 1915, he gave a promissory note for $75, due September 1, 1916, to William McIntyre of Roseburg, which was sold to plaintiff before maturity, and on April 1, 1916, he gave a note to the Yale State Bank for $22.60, due six months after date, in renewal of a former note, which was sold to plaintiff prior to April 16, 1917.

On April 16, 1917, plaintiff brought suit upon those notes in a justice’s court of St. Clair county against defendant Andrew J. Harnden, recovering a judgment of $106.83, with $3 costs, and on April 26, 1917, removed the judgment by certified transcript to the circuit court of St.. Clair county. Execution was then issued out of that court, on the transcript of judgment, running to the sheriff of Sanilac county, who, on the 80th day of April, 1917, levied on the right, title, and interest of Andrew J. Harnden in and to the 80 acres above described, recording said levy in the office of the register of deeds of Sanilac county.

Certain garnishment proceedings were also had in the circuit court of St. Clair county in which it is claimed to have been shown that the interest of defendants Andrew J. Harnden and Mary, his wife, in said premises, though evidenced by a life lease reserved to them in the deeds, was in fact and effect by understanding of the parties only a mortgage by George Harnden to secure the performance of a contract to support them for life; whereupon said levy was discharged by the sheriff of Sanilac county and the execution returned nulla bona, as was also an execution issued to the sheriff of St. Clair county in August, 1917.

On October 6, 1917, plaintiff filed this bill of complaint in the circuit court of St. Clair county as a judgment creditor’s bill to reach the proceeds from defendant Andrew J. Hamden’s, interest in the Sanilac county land. Defendants duly answered issuably, claiming amongst other things that whatever rights in said land were reserved in the deeds of 1899 were joint between Andrew J. Hamden and Mary J. Hamden, and therefore not holden for the debts of either of them separately.

The relief prayed for in plaintiff’s bill is an accounting between Andrew J. Harnden and wife and George Harnden, that George Harnden be decreed to pay the judgment and costs to plaintiff if the sum he is shown to owe his father and stepmother be found sufficient; and if not that he be decreed a trustee for plaintiff’s benefit of any future sums which may become due from him to his father and wife until the accumulation thereof is sufficient to pay the judgment, and that he be restrained in the meantime lrom making any payments to Andrew J. Harnden and wife, or either of them, until such judgment is satisfied.

Upon the hearing a transcript of the testimony of George Harnden as garnishee defendant in an action by plaintiff - against his father to recover the debt involved here was introduced in evidence against the objection of defendant Mary J. Harnden that it was taken in proceedings to which she was not a party nor in any way interested. The transcript showed that he then testified he lived on the 40 acres deeded to him as above described and there never was any written agreement as to his occupation and use of the farm, but when he went on the place and took charge of both 40’s his father told him to “go on and work the place and all I want is a living, you can see I am taken care of”; that at first, while his father was living on the farm before he married again, the arrangement did not of course apply to his second wife. Of the situation after that event he said:

“I have always worked both 40’s and gave my father and mother their living off them. I agreed to do that at the time the deed was signed in 1899. I have kept no record of what I have paid my father during those years. I don’t think it would be $500 worth of stuff. * * * I never kept any account of it. No bargain was ever made as to what I was to let him have. * * * I am not supposed to be paying rent for the land. I took title to the property and am supporting my father and mother for ft. I am to keep them as long as they live.”

He also said:

“My father gets his living from me in lieu of rent. * * * I pay him in everything, some money and some provisions.”

His conclusions as to the nature of their relations, on suggestive interrogation of counsel, were as follows :

“Q. Then the reservation of the use, operation, possession and control of each of these 40’s reserved in the deed — that has always been regarded by you as security for his living off the farm, is that right?
“A. Yes, I have always ever since I have been on the place and I expect I will yet, if I went off the place I would keep him.”

The records of the Yale State Bank, in which Andrew J. Harnden had a small account at times, show that during the years 1914-15 a total of $283.64 was deposited to his credit by checks from George Harnden.

In dismissing plaintiff’s bill the trial court said in part:

“If the situation is such that defendants Andrew J. and wife have lost their life estate and that the only interest they now have in the land is in the nature of a lien or mortgage to secure their support, such interest would not be subject to execution, levy and sale. Chandler v. Parsons, 100 Mich. 313. Plaintiff’s attorney contends that this is the situation. But I fail to understand how the legal relation that the defendants bore to one another under the deed of November 2, 1899, could be varied or altered by parol or by a long continued custom. After the deed was made and delivered, defendant George was the owner of the reversion, and the father and stepmother, the other defendants, were the owners of the life estate. A life estate is a freehold and cannot be conveyed by parol or in any other way than by a written instrument. Defendants Andrew J. and wife are now the owners of a life interest in the land in question, as much as they were when the deed was made and delivered.”

Plaintiff’s counsel say in their brief:

“In this we claim he is in error. It must be borne in mind that at the 'time these transfers were made they were made with the intention on the part of Andrew J. Harnden and wife to part with the title to said land for all time, reserving a life lease, which as we have pointed out above, was nothing more or less than a mortgage to secure the performance of the agreement on the part of defendant George Harnden to support them for life. They- did not own a life estate absolute, it was only operative in case the defendant George Harnden failed to support them. * * * It is the same proposition as a deed absolute in form, being given as security for the payment of money or the performance of another obligation. In case of the payment of the money, or the performance of the obligation, parol evidence is always admissible to show the true condition and to effect a redemption.”

The basic infirmity of this proposition is that George Harnden never gave his father and wife a deed absolute in form, or any other instrument in writing as security for payment of money, or performance of any other obligation. They conveyed to him and his brother, by separate warranty deeds, each a 40 acres of land, reserving to themselves a life estate, “jointly, and also during the life of the survivor,” imposing upon each, separately, as to his 40 acres, payment of taxes, a $250 mortgage, or his half of a $500 mortgage upon the 80 acres, and an obligation to keep the same clear from incumbrances. Each son had a fee title to his property, subject to an incumbrance of $250, which he was obligated to pay, and burdened by a life estate under which Andrew J. Harnden and wife had the right of possession, use, and control of the property during their lives. Whatever further arrangement they made with George Harnden under which he took possession of and worked both 40’s rests in parol. Whether it be called a trust or power over or concerning the land, or an estate or interest in lands or a lease exceeding a year, as the testimony seems to indicate, it was void under the statute of frauds (section 11975, 3 Comp. Laws 1915), or at most only good as a lease tor a year with unliquidated rent contingent on the necessities of the parents for that year. At the end of the year George could quit or they could dispossess him, regardless of how faithfully he had performed during the year.

This is a bill in equity filed in St. Clair county claiming under a parol agreement a denied construction of the reservation of a life estate in a warranty deed to lands located in Sanilac county, by which it is contended that, under conditions shown, the only interest Andrew J. Harnden and wife have in the land is their support for life “analogous to an annuity,” as to which an accounting is prayed for, a trusteeship in George Harnden asked, and that he be enjoined from any payment to his parents for use of the farm. His possession and use of the land is but as a tenant under life tenants who own a freehold interest in the land to the extent of an estate for life carrying the right of possession, use, and income of the property so long as either survives. His right of tenancy rests in parol and whether it be at will, sufferance, or from year to year is unimportant, for in any event it can soon be terminated by either party. The rent is limited, so far as any agreement is shown, to the indefinite amount of the parents’ needs, with no fixed time of tenure or payment, and nothing is shown or inferable as due. He bore no trust or contract relations with plaintiff, and it certainly cannot be claimed that in this proceeding fraud is imputable to any of the defendants by reason of the conveyances from Andrew J. Harnden and wife to the two sons given and duly recorded in 1899, some 15 or 16 years before Andrew J. Harnden incurred the debt which plaintiff is now seeking to recover.

We find no occasion to disturb the conclusions reached by the trial court and its decree dismissing plaintiff’s bill is affirmed, with costs to defendants.

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


author: Moore, J. Stone, J.

text:
    PEOPLE v. MALOY.
    1. Witnesses — Evidence—Criminal Law — Privilege—Testifying Against Self — Constitutional Law.
    Testimony by a witness in a divorce case in response to a subpoena, without being advised of his constitutional rights, was not admissible in a prosecution against him for adultery without his consent, being in violation of his right to exemption from testifying against himself under the 5th Amendment to the Constitution of the United States, and article 2, § 16, Constitution of Michigan. Ostrander and Stone, JJ., dissenting.
    2. Criminal Law — Evidence—Confession—Motion to Strike.
    Where no objection was made to the sheriff testifying to an alleged confession of defendant in a criminal prosecution, made in response to questions by the prosecuting attorney in presence of the sheriff, the denial of a motion, made the next day, to strike out the testimony, was not reversible error.
    3. Same — Evidence—Letters and Papers — Identification.
    Letters and papers found in a room occupied by defendant should not have been offered in evidence until properly identified.
    4. Same — Conduct of Counsel — Trial—Witnesses.
    The conduct of the prosecuting attorney, in a prosecution for adultery, in indorsing upon the information the name of the woman who had been complained against with the defendant, and calling her as a witness against him, thus forcing her to claim her constitutional privilege, while showing great zeal, did not amount to reversible error.
    See note in 4 L. R A. [N. S.] 1144.
    Exceptions before judgment from Ottawa; Cross, J.
    Submitted October 17, 1918.
    (Docket No. 120.)
    Decided February 7, 1919.
    Claude Maloy was convicted of adultery.
    Reversed.

      Louis H. Osterhous and John M. Dunham, for appellant. _

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

The circuit judge charged the jury in part as follows:

“In the information filed in this case the people charge this respondent, Claude Maloy, with the offense of adultery. It is the claim of the people that on the 23d day of February, 1918, the respondent Claude Maloy left Grand Rapids with Mrs. Jessie Emmons and that they went to Holland in this county and there went to the Hotel Bristol and engaged a room and remained there in the room Saturday and Sunday nights and until Monday morning; that there was only one bed in the room and that the parties there had sexual intercourse and thereby committed adultery; that the parties were not married to each other; that Claude Maloy was at the time a married man, and had a lawful wife, and that the said Jessie Emmons was at the time the wife of Hayes Emmons, and the people claim that the respondent is guilty of the offense of adultery, as charged in the information in this case.
“It is the claim of the respondent in this case not only that the allegations made by the people in the complaint, warrant and information filed in this case are false and untrue, but that there has been a total failure of proof upon those allegations.
“It is the claim of the respondent that he did not commit the crime charged ih the information at the time and in the manner and form therein charged. He claims further that this prosecution was instigated by Hayes Emmons, the husband of Jessie Emmons, who was also arrested and charged with the same crime or participating in the same crime as respondent, and that the said Hayes Emmons seeks conviction of the respondent in this case and the said Jessie Emmons for the sole purpose of - defeating her claim for permanent alimony or any right to the property now held by the said Hayes Emmons.
“The respondent claims further and there is no dispute upon the fact that a divorce case is now pending in the circuit court for the county of Kent, in chancery, wherein the said Jessie Emmons is the plaintiff, and the said Hayes Emmons is defendant, and that said suit was begun sometime in the month of March, 1918, and prior to the complaint in this case. That in the divorce case the respondent is represented by William J. Barnard of Paw Paw, who was his attorney in a former divorce case, and it is the claim of the respondent that the said attorney acting for his client, endeavored to get- said Jessie Emmons to sign off and release her interest in her husband’s property prior to the filing of the said divorce case, and when she refused, threatened her with arrest for adultery; that the only motive in this case is to convict this respondent and the said Jessie Emmons so that Hayes Emmons may not have to pay any alimony in said divorce case.”

The jury returned a verdict of guilty. The case is here upon exceptions before sentence.

The assignments of error raise three questions:

1. Was the testimony of the respondent given, because subpoenaed as a witness in the divorce case, competent evidence in this trial upon the main case?

2. Was the so-called confession made to Sheriff Dornbos competent?

8. Did the conduct of the prosecuting attorney throughout the trial of this case constitute prejudicial error?

The record shows an anomalous condition. Mr. Maloy was subpoenaed as a witness in the divorce case by the defendant. He was called as a witness by the plaintiff. He had given 15 pages of testimony before there was a suggestion that he had the constitutional right to claim privilege from testifying. All that occurred then was a suggestion.

“The Court: I suppose he has a right to claim his constitutional privilege at any time.”

There is nothing to indicate that he was advised of what his constitutional rights were or that he had knowledge of what they were. Indeed counsel on both sides seemed eager to get his testimony and neither of them objected to the testimony.

Testimony taken under these circumstances was permitted to be read in the criminal case, not by way of impeachment, for Mr. Maloy was not sworn in that case, but as substantive proof of a criminal offense, thus making him against his protest a witness against himself.

Mr. Maloy was in attendance upon court in the divorce case in response to a subpoena. He was sworn as a witness. His testimony was not voluntarily given. Before it could be used as an admission against him in a criminal ease not yet in existence it must appear that he was advised of his constitutional rights. This does not appear. See Constitution of United States, 5th Amendment; Michigan Constitution, art. 2, § 16; People v. Lauder, 82 Mich. 109; In re Mark, 146 Mich. 714; In re Allison, 156 Mich. 34; People, ex rel. Taylor, v. Forbes, 143 N. Y. 219 (38 N. E. 303). It was error to admit this testimony.

2. Was the testimony of Sheriff Dornbos competent? This testimony was given without objection. The cross-examination drew out the fact that respondent knew he was talking with the prosecuting attorney in the presence of the sheriff, and he was told he need not answer the questions unless he wanted to. The next day a motion was made to strike out the testimony. This was not done. There is no doubt the court if requested would have charged the jury properly as to how they should regard the evidence. See Tiffany’s Criminal Law, p. 633. As to this feature of the case the record does not show reversible error.

3. Did the conduct of the prosecuting attorney throughout the trial of the case constitute prejudicial error? The claim that it did is based upon the calling of Mrs. Emmons as a witness and the offering in evidence of certain letters and written papers found in the drawer of a piece of furniture in a room which had been used by the respondent.

We quote from the brief of counsel:

“Why did the prosecutor indorse upon the information the name of Jessie Emmons, and call her as a witness on behalf of the people? She was complained against with the respondent, although they were informed against singly. He knew that she would not take the stand and give testimony favorable to the people. She must be presumed to have the average degree of intelligence. It was done so questions might be asked of her before the jury and compel her or her counsel to make a claim of privilege. This would and did prejudice the jury.
“Why did the prosecutor repeatedly endeavor to get into evidence certain letters which the witness Tracy Ogden claimed she found in a dresser of the room occupied by respondent long after he had left her place? There was no showing that these letters belonged to respondent, were written by him, received by him, or had ever been seen by him. This was done for the sole purpose of forcing respondent’s counsel to repeatedly object to them and convey to the jury the impression that these letters were dangerous and must be kept out of the ease at all hazards.”

Mrs. Emmons was instructed and cautioned as to her privilege to decline to answer the questions. When she claimed the privilege her claim was sustained but most of the time she seemed willing to testify and denied most emphatically much of the incriminating testimony of the people’s witnesses. The prosecuting attorney should not have offered the letters or papers referred to in evidence until they had been properly identified. The court sustained counsel’s objection to their introduction. While the record shows great zeal on the part of the prosecuting attorney we cannot say his conduct amounted to reversible error.

For the reason stated the case must be reversed and a new trial ordered.

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

Stone, J.

(dissenting). We are unable to agree with, the conclusion reached by Justice Moore in this case. From the record it appears that the admissions, or incriminating statements received in evidence, were made in the divorce case, after the respondent had been, by the court, sufficiently informed of his right to claim his constitutional privilege, and were, we think, voluntary. The fact that they were made under oath, and in another case, is no ground for their rejection. They were competent as substantive evidence, and their weight was for the jury. Underhill on Criminal Evidence (2d Ed.), p. 254, § 131; 12 Cyc. p. 474.

The following relevant cases are, among others, found in our own reports: People v. Gould, 70 Mich. 240; People v. Prague, 72 Mich. 178; People v. Gallagher, 75 Mich. 512, 525; People v. Lauder, 82 Mich. 120; People v. Taylor, 93 Mich. 638, 641; People v. Butler, 111 Mich. 483; People v. Henwood, 123 Mich. 317; People v. Rich, 133 Mich. 14, 17; People v. Robinson, 135 Mich. 511; People v. Hoffmann, 142 Mich. 531, 571; People v. Owen, 154 Mich. 571 (21 L. R. A. [N. S.] 520).

In People v. Gallagher, supra, the testimony of the respondent on the trial of another person, was admitted as substantive evidence against the respondent upon his trial, and its admission was held to be proper.

In People v. Lauder, supra, the majority of the court held that:

“In all cases where a personal privilege exists for a witness to testify or not, if such witness does testify without objection, he will be deemed to have done so voluntarily.”

In our opinion the court did not err in admitting in evidence the testimony of the respondent in the divorce case, and the conviction should be affirmed.

Ostrander, J., concurred with Stone, J.


author: Moore, J.

text:
    HULL v. HULL.
    Insurance — Life Insurance — Change of Beneficiaries — Assignments — Estoppel.
    Where insured indorsed upon forms furnished for that purpose by the insurer a change of beneficiaries in life insurance policies from his daughters to his wife, but failed to send the certificates to the company in time to have the transfer completed before his death, and the daughters expressed a desire to the agent of insurer to have the money paid to the wife in accordance with the intention of insured, and voluntarily assigned said policies to her, a bill by them to enjoin the wife from disposing of the proceeds of the policies was properly dismissed.
    See notes in 34 L. R. A. (N. S.) 277; L. R. A. 1915A, 580.
    Appeal from Wayne; Webster, J.
    Submitted October 11, 1918.
    (Docket No. 37.)
    Decided February 7, 1919.
    Bill by Evelyn R. Hull and another against Marie Hull and another to enjoin the disposal of the proceeds of certain policies of insurance, and for an accounting. From a decree dismissing the bill, plaintiffs appeal.
    Affirmed.

      J. O. Murfin and Harold McIntyre, for plaintiffs.

      Lodge & Brown, for defendants.
   Moore, J.

This litigation arises over the proceeds of two policies of insurance upon the life of the father of the plaintiffs, issued to him October, 1898.

At the beginning of the trial the following occurred:

“Mr. Lodge: Cannot we stipulate that on or about the 4th day of December, 1898, two policies for $2,000 each were issued to Frank W. Hull by the Bankers Life Association, which provided for the payment, in the event of his death, to Emma Hull, his wife, of the amounts of the two policies; that subsequently his wife, Emma Hull, died and thereafter Frank W. Hull made a change of the beneficiary by which one of the policies was made payable to Ethel F. Hull and the other to Evelyn R. Hull, plaintiffs in this case; that subsequently Frank W. Hull married Marie Hull, defendant, by whom he had three children and the five lived together prior to the time of his death as one family; that shortly prior to his death he began to take steps to change the beneficiary in the policies from. Ethel and Evelyn, his daughters, to Marie, his wife. He did this first by writing on the 18th of April to the insurer asking for two blanks for change of beneficiaries. That on the 20th of April the insurer wrote him a letter saying that under their rules it was necessary that they have the name and relationship of the proposed beneficiary before supplying the blank, and asked him to give them that information. That on the 28th of April, 1916, he indorsed upon each of the forms a change of beneficiary: T, Frank W. Hull, holder of the within certificate/ giving the number, ‘hereby revoke all directions by me heretofore made as to the disposition of the benefits accruing thereunder and now direct that the said benefits shall be paid to Marie Hull, bearing to me the relation of wife’; that those were dated and witnessed and sent on to the company and the company, by letter dated May 3, 1916, acknowledged receipt of the forms; that they had recently mailed him with a view to a change of beneficiary and said:
“ 'But you failed to send us the certificates themselves in accordance with instructions. We are therefore unable to complete the change at this time, but are inclosing a new set of blanks. An exact copy of these blanks should be written upon the back of your- certificate of membership or policies, after which the printed instructions are to be carefully followed, both the certificates and inclosed forms being mailed to this office for our stamp of approval. If a copy of the forms which you sent us has been already indorsed upon your certificates all that will be necessary is for you to mail the certificates to this office for the completion of the change.’
“Those are the certificates upon which he indorsed on the 28th of April this change of beneficiary; that the certificates were subsequently sent to the company and the money has been paid under circumstances which I will leave you to show. We can save a lot oí time by stipulating these facts.
“Mr. Murfin: I think counsel has stated them correctly; I will make one suggestion: proper proof of loss was furnished the company.”

The certificates themselves, though duly indorsed, were not sent to the company until after the death of Mr. Hull.

Testimony was taken as to the circumstances under which the money was paid to the defendant Marie Hull, and the trial judge made a decree dismissing the bill of complaint. The case is brought here by appeal.

We quote from the brief of appellant:

“There are two questions presented in this case:
“(1) As a matter of law had the late Frank W. Hull changed the beneficiary in these two policies so that the defendant was entitled to the proceeds of these policies?
“(2) _If he had not, under the facts as disclosed, did the plaintiffs, make a free and voluntary gift of this sum of money to their stepmother?”

The first of these questions, in view of the fact that the insurance company is not denying liability, presents a very interesting question. See Grand Lodge A. O. U. W. v. Brown, 160 Mich. at p. 448: Ladies of Modern Maccabees v. Daley, 166 Mich. 542, and the many cases there cited. We do not need to base a decision wholly upon the first question, but upon both of them, in the light of what is shown by the record.

After the death of Mr. Hull the insurer was notified and a claim was made for the insurance. This resulted in an invitation to the two plaintiffs and Marie Hull to visit the office of the Detroit representative of the insurance company. Ethel Hull and her stepmother visited the office and a letter was read to them from the home office to the Detroit office. Unfortunately this letter does not appear in the record, but enough does appear to show that the company in the letter recognized its liability and was willing to pay as soon as it could be protected. We quote some of the testimony as to what occurred at the office. We quote from the testimony of the manager:

“That is the letter that I read to those two. I advised them to get together on the matter and then I was informed that it was the wish of the young ladies, the daughters, that the widow should have the money. That is my memory of the conversation. ‘Well, then,’ I said, T think it can be easily fixed up by your signing an order on the company to pay this to Mrs. Hull/ and the young lady said that it would be all right.
“Q. Just look that over and see if you recognize the assignment.
“Witness: Yes, that is the one that was signed. The young lady, Miss Ethel Hull, I think it was, yes, signed it in my presence and witnessed by me and by Mrs. Haggerty, cashier. She said she would take it to her sister for her signature, and I do not remember whether it came back to me or was sent direct.”

We quote from the testimony of Mrs. Haggerty, the cashier, as follows:

“I was in my office when Ethel Hull and her mother came in and they came up to the wicket and spoke to me. * * * I brought out the letter from the home office advising that the change of beneficiary had not been completed. I got that letter out. I read it off; Mrs. Hull, and Miss Hull, I think, said — I told them that they would have to come to some settlement as to whom the claim would have to be paid to, and Miss Hull spoke and said: ‘Father intended that it should be paid to mother, and we want it that way/ And I says, ‘Will your sister be willing to sign off her claim?’ She said, ‘I know she will; we have talked it over. I know that she is willing/ and then — I was still talking to them, when Mr. Strong came into the office, and I introduced them to him and he took them into his room then and he read the letter over to them so that they fully understood it. The letter was read to them twice.”

We quote from the testimony of Miss McHugh:

“Ethel came In to get me to witness Evelyn’s signature for turning over the insurance to Mrs. Hull, that they were turning over this insurance to Mrs. Hull. I cannot tell the exact words, but they both said they were turning over the insurance to Mrs. Hull, a release from the Bankers Life. Their father had some papers drawn up before he died. That was what was said. I think it was Ethel said that. I don’t know for sure — Ethel was there. They both signed this paper to turn their insurance over to their mother.
“The Court: What did Ethel say about the father?
“A. Her father had some papers drawn up before he died, turning this insurance over, saying that the insurance was to be turned over to their mother.
“The Court: Well, what did Ethel say about that?
“A. Ethel said that she was willing that she should have it. Evelyn said she was willing the same as Ethel.”

The paper which was signed reads as follows:

“Detroit, Mich., May 15, 1916.
“Bankers Life Company,
“Des Moines, Iowa.
“Gentlemen:
“Please pay to Marie Hull, wife of Frank W. Hull, deceased, the full amount due under certificates.
' “No. 75786-7.
“Ethel F. Hull,
“Evelyn Hull,
“Daughters of the Insured.”

When this paper was signed Ethel was upwards of 26 years old and Evelyn was five years younger. The plaintiffs were witnesses and do not seriously dispute the testimony we have quoted. In Ethel’s testimony appears the following:

“This letter referred to the matter of the attempts that had been made by my father to change his beneficiary; and after he got through reading the letter to me I knew that my father had attempted to change the beneficiary in the policy from myself and my sister to my stepmother. I don’t remember much talk about the matter in the office. Mr. Strong did the talking. Mrs. Haggerty did none. My mother didn’t do any of it. It was just Mr. Strong then and myself. Outside of keeping house, my mother did not know much, anyway, in regard to business matters. She was ignorant of business matters. She had to be kind of steered in anything in the way of business. I did the steering with reference to this insurance matter — as much as I knew, I did. After Mr. Strong had read the letter and said what he had to say, it was then that I expressed my willingness that this money should be paid to my mother. * * *
“I went down when the money was paid over with my mother. And then went with her to the Wayne County Savings Bank and helped her open that account there, and showed her how to deposit the money. I helped her deposit the money in her own name. I don’t think that that money has been withdrawn from that day to this. * * *
“My father’s death was expected for some time. I knew of different things that he did in readiness for his approaching death.; he was getting his affairs in order. After he was sure he was going to die, naturally a person would. He did not talk about some of these things to me. He didn’t talk about sending for me to see about getting a title to the house down here. I never talked with him about the contract for the house running to him and his former wife, Emma. I never heard him talk about those things. I was home during his last illness in the evenings. My mother did not suggest that this money be paid to her. Why, no one suggested it, not even the insurance man down there.”

It should be stated that both plaintiffs testified that they did not suppose that by signing the paper they lost all right to the insurance money.

We have purposely avoided quoting from the testimony of Marie Hull.

There is no claim by the plaintiffs that any one brought any pressure to bear upon them to induce them to sign the paper. One cannot read this record without being, impressed with the idea that the plaintiffs knew of the desire of their father to have his wife, the mother of his three little children, have the insurance, and were willing to give his attempt to bring about that result practical effect. We think they willingly and voluntarily signed the order drawn by Mr. Strong.

The deeree of the court below is affirmed, with costs.

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


author: Kuhn, J.

text:
    HILL v. HAYNES.
    1. Appeal and Error — Directed Verdict — Grounds.
    Where a directed verdict was asked upon two grounds, and it clearly appears that it should have been granted upon the first, it will be sustained by this court, although granted upon the second, without determining whether or not the court came to a correct conclusion with reference to the second.
    2. Master and Servant — Scope of Employment — Negligence— Liability of Master.
    An employee of a garage, who took a car left to be repaired, to go to his home for dinner, without the knowledge or consent of his master or the owner of the car, was not acting within the scope of his employment so as to render his master liable for damages caused by a collision between the car and a motorcycle while being so driven by said employee.
    See notes in 1 L. R. A. (N. S.) 214; 9 L. R. A. (N. S.) 1035; 14 L. R. A. (N. S.) 216; 21 L. R. A. (N. S.) 93; 26 L. R. A. (N. S.) 382; 33 L. R. A. (N. S.) 79; 37 L. R. A. (N. S.) 834.

      Error to Kent; Perkins, J.
    Submitted October 16, 1918.
    (Docket No. 57.)
    Decided February 7, 1919.
    Case by Fred E. Hill against Ralph Haynes and another for personal injuries. Judgment for defendants on a directed verdict. Plaintiff brings error.
    Affirmed.

      Smedley & Linsey, for appellant.

      Edward N. Barnard, for appellee Haynes.
   Kuhn, J.

The testimony taken on the trial of this case discloses that on and prior to June 2, 1917, defendant Haynes was operating a small garage on National avenue in the city of Grand Rapids, where cars were storéd for owners and repairs made as desired. Defendant Haynes was absent from Grand Rapids on that day and the defendant Curren, who was employed in the work of the garage, was left in charge. One Conrad, who had a Chevrolet car stored in the garage, had left directions that a grease leak in the right rear wheel be stopped, and a direction to that effect was written upon a tag card and attached to the car. No further direction was contained upon the card and Curren received no further instruction either from his employer, Haynes, or from the owner of the car, Conrad, or from any other person, to do any other work upon the car. It appears from the testimony of Curren that he stopped the grease leak about 9 or 10 o’clock in the forenoon of June 2d, and made an entry upon the tag card to that effect, charging for three washers and one hour’s work done, and no further entry was made upon the card, which card served as a basis for the charge to be made to the owner, Conrad, for the services rendered. The car remained standing in the garage until noon, and Conrad had not called for it. At noon the defendant Curren took the car out, for the purpose, as he says, of testing the brakes, and drove it to his home in a distant part of the city to obtain his dinner. He did not stop on the way, and on his way back did not stop until a collision occurred with the plaintiff’s motorcycle at 1:15, at the intersection of Michigan street and Ottawa avenue, which is a business portion of the city of Grand Rapids. The plaintiff testified that as he was going south on Ottawa avenue, approaching the intersection of Michigan street, knowing that it was a bad corner because to the east was a steep hill, he slackened his speed to six or seven miles an hour; that he looked to the west and saw nothing but a team of horses, and then looked to the east and saw the defendant’s automobile some 250 feet away, and he continued on his way across the intersection looking to the west, and that he did not look again towards the east and towards the oncoming automobile until it was 10 feet away and when it was too late to avoid the accident, the two vehicles coming together and the plaintiff receiving the injuries complained of in this case. It was shown that by virtue of an ordinance of the city of. Grand Rapids, the plaintiff had the right of way coming down Ottawa avenue.

The case went to trial as to the liability of the defendant Haynes, as the defendant Curren made no defense, and at the close of the proofs counsel for the defendant Haynes made a motion for a directed verdict on the grounds: First, that there was no evidence tending to prove that the status of the defendant Curren as an employee of the defendant Haynes, at the time of the alleged collision with plaintiff’s motorcycle, was such that the defendant Haynes was responsible for any negligence on the part of Curren; and second, that a verdict should be directed because of the contributory negligence of the plaintiff in recklessly driving his motorcycle in front of the rapidly approaching car without taking such precaution as the ordinarily prudent person should take, under the circumstances. The trial judge directed a verdict for the defendant Haynes for the second ground alleged, and judgment was entered in his favor. Whether or not the court erred in directing a verdict upon the record as made is the question before us for review.

Without determining whether or not the court came to a correct conclusion with reference to the second proposition advanced, we are clearly satisfied that he could have properly directed a verdict for the defendant Haynes for the first reason urged by defendant’s counsel and that the result of his action, therefore, was a just and proper one. Accepting the testimony of Mr. Curren relative to taking the car out, under the circumstances of this case, in the light most favorable to the plaintiff’s claim, we are clearly satisfied that it shows no liability on the part of the defendant Haynes. The testimony of Curren relative to this phase of the case is as follows:

“Q. And isn’t that why you were telling the jury now you were under his (Haynes’) directions and were out testing cars?
“A. I was under his employ, yes, sir. The garage is about 100 feet back in behind the house.
“Q. He has a little bit of repair shop that he takes care of cars and stores cars?
“A. Yes, sir.
“Q. And you knew this car was in there for storage?
“A. Yes, sir. * * *
“Q. And you deliberately took this car out of this garage to take, it home to dinner?
“A. I had been working on the car.
“Q. You took it home to dinner?
“A. Yes, sir.
“Q. At twelve o’clock noon?
“A. Yes, sir.
“Q. And you were coming back on the hill at quarter to one?
“A. Yes, sir.
“Q. It happened when you were coming from lunch?'
“A. When I was coming from lunch.
“Q. And when you found you were going to be a party defendant in this case, you wanted to make this man Haynes to be the defendant in this case, and. make him bear the burden?
“A. Yes, sir.
“Q. You always enter up everything you do on a car?
“A. No, sir.
“Q. Keep a time slip?
“A. I do now.
“Q. Haynes could not charge for anything if you didn’t?
“Mr. Limey: Haynes.
“Q. You did that then?
“A. Yes, sir. * * *
“Q. Now, when you got through the work on this machine, you wrote it down on a card?
“A. I don’t remember whether I did or not.
“Q. He could not charge for it unless you did?
“A. A card was put in for the car before the repair work was done.
“Q. Was there anything said on that card about testing brakes?
“A. Didn’t say anything about testing brakes.
“Q. Of course it did not, and you knew that car was not in there for any brake testing purposes, didn’t you?
“A. Yes, sir, I did.
“Q. And you knew as a matter of fact that the only thing that car was in there for was to see why the rear hub on the right wheel was leaking grease?
“A. Yes, it was.
_ “Q. And you knew the rest of the time it stood right there, storage car, keeping it for him?
“A. Yes, sir.
“Q. And you know that that day it was noticed the wheel was leaking grease, and you were put there to fix the grease cup?
“A. Yes, sir.
“Q. That is all there was to it, wasn’t it? You went over and took that car because you wanted to go home to dinner?
“A. No, sir, I had been working on the brakes; I worked them on my own hook. * * *
“Q. You read the card, didn’t you?
“A. I read the card, certainly.
“Q. ‘Remarks: stop grease leak right rear wheel.’ There was nothing said anywhere that you knew of about brakes only of your own initiative, was there?
“A. No, sir. * * *
“Q. How far would you have to go out of the garage to see whether the brakes were tight?
“A. Well, you would have to go ten feet or twenty, or something like that. * * *
“Q. You could go out of — a hundred feet out of the garage as far as the little walk there, and have your brakes all tested?
“A. Yes, you could stay right in the garage there.
“Q. Mr. Haynes never told you to test those brakes?
“A. No.
“Q. And Mr. Conrad, the owner of the car, didn’t tell you to?
“A. No, sir. * * *
“Q. Why didn’t you run it out to the edge of the walk to see if the brakes worked — did you?
“A. No, sir.
“Q. Why didn’t you do it?
“A. I wanted to get home to dinner. * * *
“Q. Did any superintendent tell you to fix the brakes?
“A. No, sir, nobody only myself.
“Q. And when you got it fixed then and didn’t have any memorandum on this car, there was no way he could charge for it?
“A. No.”

The testimony of the witness is very convincing that. his claim that he was testing the car out with reference to the brake is merely an afterthought. He had no authority or direction either from his employer, Haynes, or the owner of the automobile, Conrad, to do anything whatever with reference to the automobile except to remedy a leakage from the grease cup in the hub of the right rear wheel. He admits that he was taking the machine out for the purpose of going to his dinner, and we are of the opinion that there was no testimony that would warrant submitting to the jury the question of whether he was acting within the scope of his authority in taking out the car as he did. His act in taking and driving the car, under the circumstances, was clearly wholly outside his functions or duties as an employee of Haynes. In the recent case of Eberle Brewing Co. v. Motor Co., 194 Mich. 140, it was said:

“The rule which plaintiff invokes is the rule which makes an employer responsible for the conduct of his servant, a part of which is that the servant must be acting within the scope of his employment. In recent cases the doctrine and its application were considered, and it was said:
“ ‘The phrase “in the course or scope of his employment or authority,” when used relative to the acts of a servant, means while engaged in the service of his master, or while about his master’s business.’ Riley v. Roach, 168 Mich. 294 (134 N. W. 14, 37 L. R. A. [N. S.] 834); Brinkman v. Zuckerman, 192 Mich. 624 (159 N. W. 316).
“It would be an invasion of the rule, and a false application of it, if it was held that a servant may, at any time, volunteer to borrow a car and carry a passenger, or for his own use drive it, at his master’s risk.”

This is the rule which should be applied here.

The judgment is, therefore, affirmed.

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


author: Per Curiam.

text:
    DETROIT UNITED RAILWAY v. WAYNE CIRCUIT JUDGE.
    Courts — Federal Courts — State Courts — Jurisdiction.
    Where a suit attacking the validity of an ordinance of the city of Detroit fixing the maximum rate of fares on certain street railway lines in said city was pending in the Federal court, it had exclusive jurisdiction, and the State court was without jurisdiction to issue an injunction also involving the validity of said ordinance.
    Mandamus by the Detroit United Railway to compel Harry J. Dingeman, circuit judge of Wayne county, to dissolve an injunction, and for a writ of prohibition to prevent further consideration of the case.
    Submitted October 22, 1918.
    (Calendar No. 28,548.)
    Writ granted February 7, 1919.

      Bernard F. Weadock (Stevenson, Carpenter, Butzel & Backus and Donnelly, Hally, Lyster & Munro,. of counsel), for plaintiff.

      Allan H. Frazer (Richard I. Lawson, of counsel), for defendant.
   Per Curiam.

The common council of the city of Detroit enacted an ordinance on August 9, 1918, fixing the maximum rate of fares which plaintiff could charge on certain lines in the city of Detroit. This ordinance took effect on August 13th. Early on that day the city filed its bill of complaint in the circuit court of Wayne county and secured an injunction restraining the plaintiff from collecting any fares in excess of those specified in the ordinance. On August 12th, after the ordinance had been passed, but before the city filed its bill in the State court, plaintiff filed its bill in the district court of the United States, attacking the validity of the ordinance. Later plaintiff filed its answer to the bill filed on behalf of the city and moved the court to dissolve the injunction. This motion being denied by defendant, the plaintiff has applied to this court for a writ of mandamus to compel the defendant to dissolve the injunction, and also for a writ of prohibition to prevent further consideration of the case in the State court.

In both of these suits the same issue is presented for determination, namely, the validity of the ordinance. It appears without dispute that plaintiff’s suit was begun in the Federal court on August 12th, and that the city did not file its bill in the State court until August 13th. Applying the well established rule of practice that where a court has taken jurisdiction of a matter it will retain it to decide the issues, to the exclusion of another court of co-ordinate jurisdiction, it follows that the State court was without jurisdiction in the premises. Maclean v. Wayne Circuit Judge, 52 Mich. 259; E. T. Barnum Wire & Iron Works v. Wayne Circuit Judge, 59 Mich. 272; Bates v. Alpena Circuit Judge, 82 Mich. 91 (21 Am. St. Rep. 554); Allen v. Allen, 188 Mich. 532; Pinel v. Campsell, 190 Mich. 347; Harkrader v. Wadley, 172 U. S. 148 (19 Sup. Ct. 119).

The writs prayed for will issue.


text:
    HALL v. DICKINSON.
    1. Venue — Change of Venue — Municipal Corporations.
    While a municipality may not be sued outside of its own county, a suit begun therein may be transferred to another county under 3 Comp. Laws 1915, §§ 12341-12347, providing for change of venue.
    2. Same — Stipulation by Attorneys — Validity.
    In a civil action against a municipal corporation, a stipulation for change of venue signed by the attorneys for the parties and acted upon by all parties, was not invalid because not signed by the parties themselves.
    3. Same — Presumptions—Mandamus—Judgment.
    Where the action was litigated to final judgment without the authority Of defendant’s attorneys to stipulate for change of venue being questioned, such authority will be presumed in mandamus proceedings to enforce the judgment, in the absence of evidence to the contrary.
    4. Same — Change of Venue — Stipulation—Authority—Attorney and Client — Ratification—Inferences.
    As a general rule, attorneys have the power, without expressly specified and granted authority, to bind their clients in those things incidental to, or deemed necessary or advisable for, the management and guidance of the case in the client’s interest relating to the remedy being pursued, and ratification of their acts is inferable from acquiescence and participation with full knowledge of the circumstances.
    5. Same — Municipal Corporations — Ratification — Supervisors —Principal and Agent.
    In a civil action against a township, where change of venue was effected by stipulation of attorneys, ratification is Inferable from acquiescence and participation by the supervisor, who, under section 2115, 1 Comp. Laws 1915, is the agent of the township for the transaction of its legal business, with full knowledge of the circumstances.
    6. Judgment — Proceedings to Enforce — Mandamus—Collateral Attack.
    A mandamus proceeding against the supervisor to compeí the levying and collection of a tax to provide funds for the payment of a judgment against the township, is collateral to the judgment and no inquiry into its regularity or validity can be permitted therein.

      See notes in 25 L. R. A. (N. S.) 711; L. R. A. 1915F, 1029.

      7. Same — Contribution—Municipal Corporations — Joint Judgment Debtors.
    It is the general rule that a judgment creditor may at his option proceed to collect his judgment from any or all of the defendants against whom his judgment runs, and the rule is not essentially different as to municipal corporations; and if a township is compelled to pay the entire judgment against it and a city codefendant it has an adequate remedy against the city for its proportion of the indebtedness.
    8. Venue — Change of Venue — Jurisdiction to Enforce Judgment.
    Under section 14563, 3 Comp. Laws 1915, the court to which a .cause has been transferred by change of venue retains jurisdiction to enforce the judgment.
    9. Mandamus — Municipal Corporations — Enforcement of JudgMENT.
    Mandamus to compel a tax to be assessed and collected is the proper remedy to enforce a judgment against a municipal corporation in case of refusal of the officer or officers whose duty it is to assess and levy a tax to pay the judgment after proper notice and request.
    10. Venue — Change of Venue — Enforcement of Judgment — New Action.
    The court to which a cause was transferred by change of venue has jurisdiction in a mandamus proceeding to enforce the judgment, such proceeding not being a new and distinct civil action, but incidental and auxiliary to the original or main action.
    Certiorari to Alpena; Emeriek, J.
    Submitted January 7, 1919.
    (Calendar No. 28,542.)
    Decided February 7, 1919.
    Mandamus by Augusta O. Hall, administratrix of the estate of De Vere Hall, deceased, to compel William H. Dickinson, supervisor of AuSable township, to spread an assessment for the amount of a judgment. From an order granting the writ, defendant brings certiorari.
    Affirmed.

      Joseph H. Cobb, for appellant.

      Fred W. De Foe and Henry & Henry, for appellee.
   Steere, J.

On May 4, 1917, plaintiff, a resident of Bay county, obtained a judgment for $2,248.49 in the circuit court of Alpena county against the city of AuSable and township of AuSable, municipal corporations located in Iosco county. The action was begun in the circuit court of Iosco county, where reputable attorneys appeared for each of the defendant municipalities. After the cause was at issue the venue was changed to Alpena county under the following stipulation of counsel and order of the court:

“Whereas, It appears in the above entitled cause that the defendants are not prepared to try the case at the June term of said court, and further that in case of the trial thereof the defendants desire to demand a jury trial; and, ¡
“It further appearing that if such continuance be granted and a jury trial demanded by the defendants and granted by the court, that it will be necessary for the plaintiff in order to protect her interest to move for a change^ of venue from said Iosco county owing to local conditions affecting the rights of the parties, and in order to settle all of the foregoing questions between the parties without costs or expense to them, it is hereby stipulated and agreed by and between their respective attorneys:
“First. That said cause may be continued over the June term of said court.
“Second.' That said defendants may at any time before the trial of said cause file a written demand for a jury trial therein.
“Third. That if said cause be tried that a change of venue be granted therein to Alpena county, all parties hereto agreeing that sufficient grounds exist for the granting thereof. That such order for change of venue may be made upon application of the plaintiff to said court without notice to the defendants herein.
“It is further agreed that in case of a transfer and trial of said cause that said trial will be had at the September, 19X6, term of the Alpena circuit court.
“Dated at' Alpena, Mich., June 15th, 1916.
“Fred. W. DeFoe,
“Attorney for plaintiff.
“John A. Stewart,
“Attorney for defendant city of AuSable.
“A. W. Black,
“Attorney for defendant township of AuSable.”
“State of Michigan.
“The Circuit Court for the County of Iosco:
“Augusta O. Hall,
“Adm’x of Estate of DeVere Hall, Deceased.
“Relator,
“v.
“William H. Dickinsion,
“Supervisor of Township of AuSable,
“Respondent.
“On reading and filing a stipulation signed by the attorneys for the respective parties in this cause consenting and agreeing to a change of venue therein to Alpena county, and on motion of Fred. W. DeFoe, attorney for plaintiff, it is ordered that the venue of this case be changed from the county of Iosco to the county of Alpena, and that the issue herein be tried in the circuit court for the county of Alpena aforesaid; and,
“It is further ordered that the clerk of said circuit court do forthwith transmit to the clerk of said circuit court for the county of Alpena all of the original files and papers in this cause, together with certified copies of all rules and orders made and entered in said cause.
“Albert Widdis,
“Circuit Judge.”

A trial by jury was thereafter had in Alpena county at which officers of both the city of AuSable and township of AuSable were present assisting in the management of the case and acting as witnesses, one of such officers being defendant William H. Dickinson, then ancl yet supervisor of the township of Au-Sable. After verdict and judgment as above stated, both defendants by their attorneys made motions for a new trial which were heard, considered, and denied by the trial court in a written opinion filed in the cause. ’

On August 17, 1917, steps were taken by plaintiff to collect the judgment pursuant to the method prescribed by statute, certified copies of the judgment being served upon the assessing officers of the defendant municipalities with request that they spread upon their assessment rolls added taxes sufficient to pay such judgment, which was not done.

On July 8, 1918, like steps were again taken by plaintiff under the statute and demand for such assessment made, when the assessing officers of defendants expressly refused to assess such judgment for collection on their respective rolls. After serving a written demand and copy of the statute in such case provided upon defendant Dickinson and his refusal to act, application was made by plaintiff to the circuit judge of Iosco county for a writ of mandamus to compel compliance with such demand by Dickinson as supervisor of AuSable township. The circuit judge of Iosco county, after examining such application, returned the papers to plaintiff’s counsel and declined to entertain the same on the ground that the cause had been, transferred to Alpena county and in his opinion he had no further jurisdiction m the premises. Application was then made, with proper showing, to the circuit court of Alpena county for a writ of mandamus against defendant William H. Dickinson, as supervisor of the township of AuSable, to compel him to spread a tax upon his assessment roll for payment of said judgment. After hearing upon an order to show cause thereon, a writ of mandamus was granted by the circuit court of Alpena county as prayed for. Defendant then removed the proceedings to this court by certiorari to review the order of the Alpena circuit court granting such writ of mandamus.

Counsel for defendant urges as error against such order the following reasons:

“First. Because the judge of the circuit court for the county of Alpena acquired no jurisdiction to render judgment in said cause.
“Second. Because the judgment was against the city of AuSable and the township of AuSable and_ could not be enforced, against one of said municipalities independent of the other.
“Third. Because the judge of the circuit court for the county of Alpena had no jurisdiction to issue a writ of mandamus, such defendant municipalities being outside of his judicial circuit.”

Concededly a municipality in this State cannot be sued outside of its own county, but it does not follow that the venue may not thereafter be changed and the case transferred to another county for trial. Section 12341, 3 Comp. Laws 1915, provides for transfer of causes, or change of venue, as follows:

“Each of the circuit courts, upon good cause shown, may change the venue in any civil cause pending therein, and direct the issue to be tried in the circuit court of another county, and make all necessary rules and orders for certifying and removing such cause, and all matters relating thereto, to the court in which such issue shall be ordered to be tried, and such court shall thereupon have full jurisdiction of such cause, the same as though such cause had been originally commenced therein; and in every such case all expenses of such trial which would be chargeable to the county in which the suit originated, had the cause been tried therein, as determined by the circuit judge of the county to which said cause has been transferred, shall be a charge upon the county in which the suit was commenced.”

Section 12342 provides for transfer of causes in case of disqualification of the judge in the jurisdiction where the suit is pending. Section 12343 authorizes application to the judge of an adjoining circuit, not disqualified, for an order of transfer, and further provides :

“The parties to any such suit may, by stipulation in writing, consent to the transfer of such suit or proceeding without any application to the judge, in which case the stipulation shall have the same effect as an order duly made for transfer.”

Section 12346 also provides:

“In case the parties to said suit or proceeding shall by stipulation in writing or otherwise agree upon the circuit court of the county to which said cause shall be transferred, said circuit judge shall make an order of transfer in accordance therewith.” * * *

It is not questioned that the order of transfer, with all other original or certified files, records and papers in the case were duly transmitted in prescribed time and manner to and filed in the circuit court of Alpena in compliance with the statute. By section 12347, the

“court to which said suit or proceeding is by said order directed to be transferred * * * shall have jurisdiction of the same to the same extent as if said cause or proceeding had been legally commenced in Said court,” etc.

It is urged by counsel for defendants that the stipulation for transfer was invalid because signed by the attorneys and not by the parties themselves. Defendants are municipal corporations, artificial legal entities, or personalities, created by law, which can only act through legally constituted agents and attorneys. This is a civil action in which reputable attorneys whose authority as such is not questioned entered their appearance for defendants and in their professional capacity duly filed their pleadings and conducted the defense. The cause was properly planted, pending and at issue in Iosco county where counsel for hll parties in interest stipulated a change of venue. An order was made by the court transferring the same which recites that it was made on motion of counsel for plaintiff and pursuant to the .stipulation filed in said cause. The transfer was not only stipulated for but subsequently acquiesced in and acted upon by all parties, who without objection proceeded to trial in Alpena county and actively participated therein until final judgment.

Indicating that legal minds sometimes run in the same channel but in opposite directions, counsel for defendant made the contention some 40 years ago that a change of venue was invalid and the court to which the case was transferred without jurisdiction because the stipulation was signed by the party himself instead of his attorney. Goebel v. Stevenson, 35 Mich. 172. Of this the court said:

“The transfer was by agreement of record. Both, courts acquiesced. Aldrich and Innes entered into it voluntarily and freely. That it was executed by Innes in person rather than by attorney is no ground of objection. If strict practice required it to be done through his attorney, which we do not admit, it is sufficient that it was afterward acknowledged^ and acted on as regular. * * * We think this objection is without force. * * * They went in and were recognized as standing there as masters of the litigation, and the court took full cognizance of the cause. * * * The court got jurisdiction of Aldrich and Innes by their agreement and submission, and they cannot be heard to complain.” * * *

It is further contended that no agent or attorney could bind the defendant municipalities by such stipulation unless authorized to sign the same by resolution of their governing bodies duly passed and recorded. What action if any those bodies took and made of record relative to this litigation prior to or after this judgment is not shown. This case was litigated to final judgment followed by denial of motion for a new trial and expiration of time for appeal without any question being raised as to the authority of the agents and attorneys of defendants, or the legality and regularity of its transfer to another county for trial. The presumption in this supplemental proceeding is that they were duly authorized to act, and there is no proof to the contrary. Dickinson, who is the defendant here, then and now supervisor of AuSable township, attended, participated in and testified as a witness for the defense at said trial. He was by statute agent of his township for transaction of its legal business. Section 2115, 1 Comp. Laws 1915, provides:

“That the supervisor of each township shall be the agent for his township for the transaction of all legal business, by whom suits may be brought and defended, and upon whom all process against the township shall be served.”

As a general rule attorneys have the power without expressly specified and granted authority to bind their clients in those things incidental to, or under the circumstances which arise deemed necessary or advisable for, the management and guidance of their side of the case in their client’s interest relating to the remedy being pursued, and ratification of their acts is infer-able from acquiescence and participation with full knowledge of the circumstances. All parties to this action and the proceedings in relation to it having participated with full knowledge and submitted themselves through their agents and attorneys to the jurisdiction of the Alpena circuit court by agreement and without objection, in the manner stated, were bound thereby; and in any event cannot now after final judgment question the jurisdiction of such court to which the venue was changed by stipulation and order of record accepted by all parties and acted upon by the court rendering the judgment. Want of jurisdiction is not shown here. Aside from that question, the general rule is well stated, with citation of decisions, in 23 Cyc. p. 1064, as follows:

“A proceeding to enforce a judgment is collateral to the judgment, and therefore no inquiry into its regularity or validity can be permitted in such a proceeding, whether it be a direct action on the judgment, dr on a note given in satisfaction of the judgment, or a proceeding to revive the judgment, or proceedings supplementary to execution, or bill in equity in aid of execution or to enforce the lien of the judgment, * * * or a proceeding by mandamus to compel the levying and collection of a tax to provide funds for the payment of the judgment, the debtor being a municipal corporation.”

We are cited to no authority in support of defendant’s second ^contention, that being municipal corporations the judgment cannot be enforced against one independent of the other. The general rule is well settled that a judgment creditor may at his option proceed to collect his judgment from any or all of the defendants against whom his judgment runs.

“Judgments in actions by or against municipal corporations do not differ essentially, as regards their rendition and form, from those in actions between individuals or other corporations.” 14 Enc. of Plead. & Practice, p. 243.

If the defendant township is compelled to pay the entire judgment it has an adequate remedy against the city for its proportion of the indebtedness as one partner would have against a copartner under like circumstances or an individual defendant against his judgment codefendant.

The case was legally transferred to the circuit court of Alpena county where a valid judgment was rendered against defendants and there stands unsatisfied and in full force. The remaining question is whether the court of that county or of the county from which the case was transferred has jurisdiction to issue a mandamus to enforce payment of said judgment. It is a general rule that the trial court loses jurisdiction of an action pending therein by granting a change of venue and no steps can be legally taken thereafter in that action by or before the court from which the venue is changed. This rule is recognized in our statute authorizing change of venue (3 Comp. Laws 1915, § 14563) which concludes as follows:

“Provided further, That in all suits, proceedings, causes or actions in which a change of venue has been granted, the court to which such suit, proceeding, cause or action has been transferred shall retain jurisdiction.”

Under such plain provision, Can it be successfully contended that jurisdiction of the Alpena circuit court was exhausted by rendition of judgment? In general, jurisdiction is as essential and complete for enforcement of a judgment as for its rendition, and continues until that judgment is satisfied:

“Jurisdiction is defined to be the power to hear and determine the subject-matter in controversy in the suit before the court, and the rule is universal that if the power is conferred to render the judgment, or enter the decree,.it also includes the power to issue process to enforce such judgment or decree. * * * Process subsequent to judgment is as essential to jurisdiction as process antecedent to judgment, else the judicial power would be incomplete and entirely inadequate to the purposes for which it was conferred by the Constitution.” Riggs v. Johnson County, 6 Wall. (73 U. S.) 166.
“A grant of jurisdiction implies the necessary and usual incidental powers essential to effectuate it; and a court's power to apply a remedy is coextensive with its jurisdiction over the subject-matter. * * * Again, a court may entertain proceedings ancillary to the judgment, for jurisdiction once acquired is not exhausted by the rendition of judgment, but continues until such judgment is satisfied and includes the power to issue all proper process and to take all proper proceedings for its enforcement.” 11 Cyc. pp. 677, 678.

The only proper or possible process or proceeding for enforcement of judgments rendered in this State against municipal corporations is by mandamus. The general rule founded on public policy that property acquired by such corporations for public purposes in their capacity as governmental agencies is held in trust for the public and cannot be seized and sold under execution to satisfy a judgment against the municipality has been enacted into statute law in this State and award or issue of execution forbidden, with a substitution of proper mandatory provisions for assessment and collection of taxes to satisfy such judgment following elapse of time for appeal. In case of refusal by the officer or officers whose duty it is to assess and levy a tax to pay the judgment after proper notice and request, mandamus is the appropriate and only process by which the court rendering the judgment can effect the ends of its existing jurisdiction in such cases when brought under its cognizance by whatever means. When so issued it is, for the only purpose it serves, but an ancillary process or proceeding, operating as a substitute for or the equivalent of a final execution to carry into effect the judgment of the court.

“A writ of mandamus to enforce collection of judgment against a municipality on its bonds is in the nature of, and is legally equivalent to, the statutory writ of execution. The right to prosecute the writ for such purpose is limited to the same period of time within which execution may be sued out on a judgment against individuals.” United States v. Township of Oswego, 28 Fed. 55.

As we understand the contention of defendant it is that this mandamus proceeding against him is a new and distinct civil action under the Constitution and laws of this State as interpreted by this court, and not subject to or affected by the change of venue ordered in the case between plaintiff and the municipalities against which the judgment was rendered. It is true that in Woodworth v. Old Second Nat. Bank, 144 Mich. 338 (8 Ann. Cas. 310), it was held that “mandamus proceedings are civil actions, within the meaning of Act No. 309 of the Public Acts of 1905.” In that case an order granting change of venue in a mandamus proceeding instituted to compel the bank and others to turn over their books for relator’s inspection was sustained. This was in harmony with the prevailing rule that .in those jurisdictions where the right to the writ and power to issue it no longer depend upon the prerogative power of the court it should be regarded as an ordinary process in cases to which it applies. This rule is stated in 1 Cyc. p. 723, as follows:

“The common-law remedies by prerogative and judicial writs, especially in forms which they finally assumed by virtue of statutory or other changes, are actions or suits within the usual meanings of those terms in law.”

Accepting the technical correctness of this designation it does not follow that it carries the refinement of definition to where it operates to change the fundamental purpose and uses of mandamus proceedings. This court has also said that it is from its very nature a remedy that can-net be hampered by narrow or technical grounds (Mabley v. Judge of Superior Court of Detroit, 41 Mich. 38), that in cases where the duty of the public officer is absolute and specific, mandamus is no more a matter of discretion than any other remedy, and courts may not refuse to enforce absolute rights (Auditor General v. Tuscola County Treasurer, 73 Mich. 32); of its propriety as a remedy to enforce contracts before judgment it is said in Burland v. Benefit Ass’n, 47 Mich. 424:

“Such a writ does not purport to adjudge or decide any right. It is rather in the nature of an award of execution than of judgment. It is the mode of compelling the performance of acknowledged duty or enforcing an existing right, rather than deciding what that right or duty is.”

Such is exclusively its nature and purpose when authorized as a substitute for and issued to perform the office of an execution to enforce a judgment, in aid of a jurisdiction that has previously attached. Its vitality and legality are contingent solely on the judgment to which it is incidental and auxiliary. For that purpose it would seem to follow that mandamus could only be issued in cases where jurisdiction already exists, not where jurisdiction is to be acquired by means of the writ.

The Iosco circuit court from which the venue was changed has rendered no judgment, no proceedings are pending before it and it now has no jurisdiction over that case. We know of no rule of the common law or statute of this State authorizing it to acquire' jurisdiction in that case and proceed to enforce a judgment of the Alpena circuit court by a writ of mandamus, when no jurisdiction exists to issue the writ except it be founded on the judgment. That mandamus proceedings are to be regarded as “civil actions” or suits within the meaning of certain statutory provisions does not divest the Alpena circuit court of its jurisdiction to issue the writ to enforce its judgment. That the proceeding is as to forms and sufficiency of pleading classed under our practice as a civil action is not of controlling significance. It is in no sense a separate, independent or primary action, but purely incidental and auxiliary to the original or main action, as is an action in garnishment, its only function being in aid of the judgment already rendered therein.

The order of the circuit judge is therefore affirmed, with costs.

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