text:
    REDSON v. MICHIGAN CENTRAL RAILROAD CO.
    Railroad Companies — Horses on Track — Gross Negligence.
    One who, while loading logs, permits his horses to remain upon the track in front of an approaching train, under circumstances which render his conduct grossly negligent, should not be permitted, in an action against the company for their killing, to go to the jury upon the theory, that the engineer, knowing the danger, willfully ran them down, where there is no definite proof to contradict the engineer’s testimony that he acted with all proper caution as soon as the situation became apparent to him.
    Error to Ogemaw; Sbarpe, J.
    Submitted May 4, 1899.
    Decided July 11, 1899.
    Case by Claude E. Redson against the Michigan Central Railroad Company for the alleged negligent killing of plaintiff’s team of horses. From a judgment for plaintiff, defendant brings error.
    Reversed.

      George L. Alexander, for appellant.

      Merrie H. Abbott and Charles 8. Abbott, for appellee.
   Grant, C. J.

The declaration in this case contains five counts, alleging various grounds of negligence. The court disposed of all these in his charge, except one, either on the ground of plaintiff’s contributory negligence or that no negligence was shown on the part of defendant. Failure on the part of the engineer to keep a proper lookout was one. The court instructed the jury that, even if this were so, plaintiff was equally negligent in not keeping a proper lookout for the approach of the train, which he knew was then due, and which could have been seen approaching for a distance of over three miles. The failure to give warning by blowing the whistle and ringing the bell was disposed of in the like manner. It was conceded, however, that the bell was rung automatically. There was no duty to blow the whistle, as this was not a highway as do which the duty is imposed by statute, and the court so held. The whistle was blown, according to the defendant’s witnesses, as soon as the danger was discovered. The only dispute is over the distance of the engine when the whistle was blown. The court also correctly instructed the jury that there was no evidence of failure to provide suitable air-brakes, and keep them in proper order. The court very properly instructed the jury that the plaintiff was guilty of contributory negligence, and it might, with propriety, have added that it was negligence of the grossest kind. The question, however, was left to the jury, upon the theory of willful or gross negligence on the part of the defendant.

The authorities do not go to the extent of holding that the mere failure “to exercise due care or the means at hand” is gross negligence, sufficient to justify a recovery, where the plaintiff is guilty of contributory negligence. Plaintiff saw this train coming. He was just in the act of hitching onto a log. Instead of immediately removing his horses, which, it is evident, he had then ample time to do, and taking them out of danger, he ordered the log rolled up onto the car, and, before he could then get his horses removed, both the horses and his partner, Wood-worth, in charge of them, were killed. Had injury resulted to the train or to the trainmen, it might just as well have been charged that he (the plaintiff) was guilty of intentional wrong as to charge that the engineer was guilty of it. It would then be gross negligence against gross negligence, willful misconduct against willful misconduct, and intent against intent; and in such case the law leaves both parties where they have placed themselves, and gives recovery to neither. The entire charge upon this point might be sustained under the authorities cited; for the court expressly said to the jury:

“I instruct you, as a matter of law,- that by the term ‘willful negligence,’ or ‘gross negligence,’ as it is sometimes called, is meant the intentional failure to perform a manifest duty, in reckless disregard to the consequences as affecting the property or life of another. It also implies a thoughtless disregard of consequences, without the exercise of an effort to avoid them. In order to find the defendant guilty of reckless conduct, it must be shown by the plaintiff that the engineer knew the situation and danger, that he realized that there was danger at the time, and that he ran on in spite of that knowledge, and knowing the consequences if he failed to stop.”

Under the ruling in this case, the rule of contributory negligence might as well be abolished; for in nearly every case enough testimony would be adduced to permit the jury to say that the engineer might have seen the condition, and by the use of proper means have avoided’ the accident.

This necessarily leads to a full statement of the facts: All the information conveyed to defendant as to the use of this track by plaintiff, and the method employed by him, comes from a statement made by him to the local agent “that he was going to load these logs upon the cars with horses.” The dangerous situation was created entirely by the plaintiff, and the defendant was in no sense responsible. Plaintiff knew of the approach of trains, and that it was his duty to look out for them, and that defendant owed no duty to look out for him or his property until its engineer was in position where he must be held, in law, to have realized the danger, and to have run on regardless of it. When plaintiff’s employé and witness Bowers gave notice of the approach of the train, his (plaintiff’s) witness and employe Johnson was in the act of chaining the log. Instead of stopping then, and removing the horses, plaintiff gave orders to his partner, Woodworth, in charge of the horses,' to pull up the log. This was done. One of the horses was off the track, and the other on, when the engine struck. It is very doubtful if Wood-worth heard the notice of the approach of the train given by Bowers, and afterwards repeated by plaintiff, who stood on top of the logs, in plain sight of everything. Plaintiff himself testifies that possibly Woodworth may not have heard him. Woodworth was killed. If Woodworth did not hear the warning, he was doing the work in the usual way, without any thought of danger. Plaintiff himself testifies that, if the team “had gone straight on about the length of a team, they could have turned to the left, and gotten off the track. ” I will let plaintiff tell his own story of the transaction:

“Q. So, by going a few feet farther south, they could have turned, and gotten off to the right ?
“A. They could have turned off either way.
“ Q. They could have turned off to the right by going a few feet south ?
“A. Yes, if they had—
“Q. Yes, sir; but you said they turned around to go back their usual way of work ?
“A. Yes, sir.
“Q. Go up the track ?
“A. Yes, sir.
“Q. Your driver didn’t attempt to get them off to the left, nor drive them farther along, and get them off either way?
“A. Yes, sir; he did make such an attempt. He stooped down to unhook his chain, and while he stooped down his team was nearly turned around, and before he could get them turned again they had got too far around for him to get them back in time. After they turned around, he didn’t have time to turn them again before the train got there. ”

Another of plaintiff’s employes and witnesses testified that, ‘ ‘ if the team had been manageable, they might have been got out of the way, as well as Woodworth himself.”

Potts, the engineer, whose deposition upon the inquest was introduced by plaintiff, and made a part of his case, testified:

“I saw a team of horses alongside the track. They were near, or in the vicinity of, the track. They were on the right of way. Could not tell what they were doing. Would infer that they were being used in loading cars. I was perhaps five or six hundred feet away when I first noticed them. I saw a man there with the horses at the same, or about the same, time I saw the horses. I sounded the whistle when I first saw them, and shut off the steam, and applied the air-brakes.”

Potts was also sworn upon the trial, and testified as follows:

“Well, we had passed the north end of the switch about two or three hundred feet when I saw this team come from behind the end of the car and turn upon the main track north. Immediately a man ran around them, and tried to back them up, and he could not. He ran around behind them, and I was so close then that there was no stopping. I applied the air-brakes, and sounded the whistle, and shut off the engine immediately, as soon as I saw them.”

These statements are corroborated by the fireman.

This railroad ran through a lumber region, and the loading of cars was common in many places along the track, and had been for many years. It was proven beyond controversy that it was the duty of those engaged in this work along the line of the road to look out for and protect themselves against passing trains; that it was not the custom to slow up when seeing persons on or about the track engaged in this work; that no such accident had ever before happened; and that it would be impossible to make schedule time if this course was not pursued. It was the plain duty of plaintiff to keép the track clear, both for his own protection and that of those on board the train. In the face of this testimony, courts are asked to sustain a finding that the engineer saw that the team was unmanageable ; that he saw, in time to stop his train, that the accident was inevitable unless he stopped; that he purposely disregarded the danger to his own life, and that of others upon the train, — -for it was a passenger train,— and intentionally ran down and killed Mr. Woodworth and the plaintiff’s horses. No court'should allow such a result, except upon clear and convincing proof. The train might have been derailed, causing loss of life and destruction of property. The conduct which would sustain the verdict in this case would convict the engineer of manslaughter. He was not required to check the speed of his train, or to take means to stop it, until he was chargeable with clear notice that the horses and Wood-worth were in danger, and could not get off the track before the engine reached them. The assumed conduct of the engineer, upon which the liability in this case is based, is repugnant to human nature. No one but a man of the most cruel instincts would be guilty of it. There is nothing in this case to show that the engineer did not act with promptness as the situation appeared to him, except the loose testimony of the plaintiff, who testified that he thought steam was shut off when the train was right in front of him, the instant the horses were struck, but he could not tell whether the speed of the train was checked or not; that of Bowers, who testified that steam was not shut off when the train passed him; and that of Florence Russell, that the first whistle she heard was when the train was close to the horses. There was only one horse upon the track. Woodworth was trying to get him off. Just where Woodworth stood does not appear. Who can say at what distance the engineer was bound to recognize the fact that in all probability they could not get off the track before he reached them ? Is it not the merest conjecture ? There is no testimony to sustain this terrible charge against the engineer of the defendant’s train. He acted as he had usually done, and in the light of the situation as it appeared to him. His own preservation would have prompted him to do all in his power to avoid the accident. A jury ought not be permitted to say that his conduct was reckless and intentional, and that he deliberately rushed on, knowing the danger and the consequences.

Defendant was running its train in a lawful manner; at a lawful rate of speed, and was guilty of no act of negligence, unless its engineer was guilty of a willful and deliberate act, for which it is responsible. I cannot yield my approval of a verdict and judgment where the plaintiff himself was guilty of the grossest negligence, and asks a court and jury to excuse it, and give damages, because the defendant’s servant might have seen the danger he was in, and avoided it, and that, too, when the slightest precaution upon his own part would have prevented it. I do not think the case is in any essential particular different from that of Frost v. Railroad Co., 96 Mich. 470.

I think the judgment should be reversed, and new trial ordered.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, C. J.

license: Public Domain

text:
    JASTRZEMBSKI v. MARXHAUSEN.
    1. Newspaper Libel — Judicial Proceedings — Privilege.
    Where a newspaper reporter, at the suggestion óf an officer at police headquarters, obtains from a wife, who came there to make a complaint against her husband, a repetition of statements made to the officer, and the newspaper publishes the same as facts without further investigation as to whether they are true or false, the publishers cannot defend an action by the husband for libel upon the ground that the article was a report of “judicial proceedings,” and therefore privileged.
    2. Same — Notice oe Justification — Malice—Meaning of Words —“Evidence” and “Proof.”
    “Evidence” and “proof” are not synonymous words: “Evidence ” is that which tends to convince; ‘ ‘ proof ” is that which \ convinces. Therefore, 2 How. Stat. § 7776, which provides that notice of the truth as a justification in an action for libel, though not maintained by the evidence, “shall not in any c'ase he of itself proof of the malice charged,” does not take away from the jury the right to consider whether an unsustained notice of justification may not tend to show malice, when taken in connection with the other facts established.
    3. Same.
    However, the jury should be able to find that there was bad faith in giving notice of justification before they use that fact as evidence of malice, and an instruction which authorizes a finding of malice upon the notice alone is erroneous.
    4. Appeal — Prolix Record — Costs.
    Where-a record of one-half the length of that presented to the Supreme Court would have been ample to cover all the points raised on appeal, the appellant, upon reversal, was allowed to recover only one-half the cost of the record.
    Error to Wayne; Hosmer, J.
    Submitted May 9, 1899.
    Decided July 11, 1899.
    Case by Felix Jastrzembski against August Marxhausen for libel. From a judgment for plaintiff, defendant brings error.
    Reversed.
    This is an action of libel based upon the following article published in the Detroit Abend Post, a German newspaper printed and published in Detroit, of which the defendant is owner:
    “Eloped with Another Woman.
    “Felix Jastrzembski Leaves Wife and Children in Need.
    “The police were notified' today that the 24-year old wife of Felix Jastrzembski is living, with four small children, in need and poverty, in the house at number 459 Forest avenue, where her husband, the carpenter Jastrzembski, left her in the lurch a week ago, and ran away with another woman, the 20-year old Agnes Hartung. Agnes boarded at the Jastrzembskis, and the fickle man fell in love with her, without having any regard for his family. Agnes’ brother today reported his sister as missing. Where the couple have gone is unknown, though the police will endeavor to find out. Mrs. Jastrzembski found in one of her husband’s coat pockets a photograph which represents him and Agnes Hartung as,a couple. Here is an opportunity for benevolent-minded women to make an effort, and to ascertain how the abandoned family may be relieved from their sad want, without injuring those who have innocently fallen in want. ”
    With the plea of the general issue the defendant gave notice that he would prove:

      (1) “That said article was, in its fair and ordinary significance, true in substance and in fact.”
    (2) That the statements in the article “were based upon proceedings had in the police court of the city of Detroit, a public court of said city, and had and heard in public, and was a fair, truthful, and unprejudiced account and report of said proceedings had therein, and therefore privileged.”
    (3) That, at the request of the plaintiff, his version of the affair was published in the newspaper; that, before it was published, it was carefully read over to him, and that he expressed himself fully satisfied with it, and agreed that, if the same should be published in said newspaper, he would be fully vindicated and satisfied, and would settle and discharge defendant of any and all liability; that, at his request, a second article' was published in said newspaper.. These two articles were published, and are as follows:
    “What Felix Jastrzembski Has to Say.
    “Felix Jastrzembski, of No. 45-9 Forest avenue, declares that the complaints made by his wife against him are wrong and untrue. He says that he earns $12 per week, $7 of which he had given his wife to keep house. With that amount she did not get along, because she was too extravagant. He had criticised and severely protested against this, and the fight resulted therefrom which caused his wife to make such report to the police. He is an honest man, and never had anything to do with the girl Agnes Hartung; did not know of her whereabouts, nor did it concern him; says that he had worked for Wm. Monroe, on Twenty-Eighth street, truly and regularly every day, and been home every day. Hence, how anybody can claim that he had deserted his wife he could not understand, — a worse lie never existed. The talk of distress was silly, for his wife had enough supply at the house to warrant good living for weeks. The whole matter, Mr. Jastrzembski says, has been prompted and instigated by meanness, because he did not want to indiscriminately feed other people. That was the whole trouble.”
    Also:

      “The Case oe Felix Jastrzembski Once More— More Explanations. ■
    “We have once before shown in our columns that great wrong had been done to young Felix Jastrzembski by his wife, who accused him of desertion and eloping with another one; but we do repeat this today, not merely for the frequent talk arising out of the matter, but owing to the request of the employers of the accused, who have requested us for an honorable explanation, inasmuch as the latter is held in high esteem among his fellow workmen. There was no reason whatever to blacken the man to the police. The wife permitted herself to be led on slippery ice.”
    Plaintiff obtained a verdict for $500; $400 injury to feelings, and $100 for other damages. No further statement of facts is necessary, except in connection with the points determined. "

      William Look and Ira G. Humphrey (Elliott G. Stevenson and Leo M. Butzel, of counsel), for appellant.

      Charles T. Wilkins and Oscar M. Springer, for appellee.
   Grant, C. J.

(after stating the facts). 1. Was the publication privileged'? The publication was not that of the contents of papers filed in the course of judicial proceedings. It was not a report of testimony taken in court. No witnesses had been sworn. The only document filed in the justice’s court was a complaint made for nonsupport, and this was not known to the reporters or to defendant. To this document no reference whatever was made in the publication, t Plaintiff’s wife, her brother, and the brother of Agnes Hartung went to police headquarters, and there related to a police officer the alleged troubles between plaintiff and his wife. The wife had with her a picture of the girl Agnes and her husband, taken together. One Jan Schmedding, a reporter for the Evening News, came to’the police officer after the wife and others had made their statements to him. Schmedding testified that the officer told him that a man and woman had been reported missing; that, if he wanted to get the story, he could find them on the porch; that they were just leaving the building;. and that there was a runaway match. In Mr. Schmedding’s own language: “I hustled out to the porch, and found Mrs. Jastrzembski, and Mr. Hartung, and a young man who said he was a brother of Mrs. Jastrzembski. ” Mr. Schmedding questioned the wife and the others, and obtained the picture. Just after this, Mr. Balke, the reporter for the Abend Post, came up, and Mr. Schmedding gave him the details he had derived from the parties, and showed him the picture. Neither made any further investigation as to the truth of the charges, although the reporters knew where the plaintiff lived, and the qrticle was immediately published in the defendant’s paper. Mr. Schmedding said, on cross-examination: ‘ ‘ The report was that he was missing, and his wife told me that he was missing, and'that was all I cared to know.” The officer, after stating the reports made to him by this woman through an interpreter, states the interview with Schmedding as follows: “Mr. Schmedding came in just as they were leaving the door, — -just going out of the office, — and he says, ‘What are those people wanting?’ ‘Well,’ I says, ‘they reported a couple eloping;’ and I says, ‘It is quite a story for you, and they have got a picture.’” Mr. Balke testified that all the information he received before publishing the article was obtained from Mr. Schmedding. The wife charged her husband with criminal intercourse with the girl Agnes, and the police officer advised her to go to the police justice’s office. She, and those with her, then went to the office of Justice Whelan, and there made similar statements to those made at police headquarters. The statements there made convinced Mr. Whelan that the charge of adultery would not lie. The wife made a complaint for nonsupport under the disorderly act, and a warrant was issued for the arrest of plaintiff. No reporters were there, and neither the defendant nor any of his employés had any knowledge, at the time of the publication, of what had occurred at the office of Justice Whelan.

i The publication was not privileged. The conversation between the officer and plaintiff’s wife was not a judicial investigation. Reports made to police officers charging persons with crime are not privileged communications,- and those who publish such reports do so at their perihj Evidently, Schmedding did not rely upon the statements made to him 'by the officer. He was simply told by him “that these parties had reported a couple eloping.” He then hurried to the parties, got their statements, relied upon them as true, and, without any further investigation, the defendant published them. There were no court proceedings upon which to base the question of privilege. The authorities cited by counsel, based upon the publication of court proceedings, do not apply. The statements published were not gathered from any proceedings in court, but the information was obtained from parties entirely outside of any court. The only defense, therefore, that could be made to the publication, was its truthfulness. J

2. HTa the court err in instructing the jury as follows:

“If the defendant has not succeeded in proving the truth of all the defamatory statements just as charged, the fact that he has again in his plea said that the charges were true may be considered by you in estimating the damages to be awarded to the plaintiff. * * * In estimating the damages to be awarded for the publication of a libelous article, I instruct you that the plea of justification, if not sustained, — -that is, a claim, such as is made by the defendant in this case, that the charges in the article are true, — if the truth of those charges is not proved, is a matter which you may have to take in consideration as a cause for increasing the damages to be given to plaintiff.” ' ■

At the common law, notice of justification, and the failure to sustain it, were evidence of malice, and, by many authorities, conclusive evidence. The rule is so stated in Huson v. Dale, 19 Mich. 30. The rule was a harsh one, and therefore the legislature provided:

“ If the defendant in any action for slander, or for publishing a libel, shall give notice in his justification that the words spoken or published' were true, such notice, though not maintained by the evidence, shall not in any case be of itself proof of the malice charged in the declaration.” 2 How. Stat. § 7776.

The statute abolished the rule that an unmaintained plea of justification was proof of the malice charged. Counsel treat the word “proof,” used in the statute, the same as though it read “evidence.” “Proof” is that which convinces; “evidence” is that which tends to convince. We must assume that the legislature used the word in its well-understood definition. “Evidence is the medium of proof; proof is the effect of evidence. ” People v. Beckwith, 108 N. Y. 73. That’ the legislature understood the definition of these two words is apparent from the fact that the law uses both words, and in such connection as to clearly show the distinction between the two. The statute, therefore, did not take away the right of the jury to consider whether an unsustained notice of justification might not be evidence tending to show malice, when taken in connection with the other facts established.

Under the above instruction, however, the jury were permitted to consider the unsustained notice of justifica, tion for the purpose of showing malice. The jury might, therefore, have put out of their consideration all the other facts and circumstances, and based a finding of malice and an increase of damages on this fact alone. We think the statute was designed to prevent such a result. The jury ought to be able to find that there was bad faith in giving notice of justification before they use that fact as evidence of malice. Distin v. Rose, 69 N. Y. 122. It is with some reluctance that I yield my assent to reversal of this case, for the reason that the attention of the court was not called by either counsel to this statute, and no request was made to instruct the jury as to its effect. It is the duty of attorneys to, at least, call the attention of the court to such matters, and to request instructions thereon. It is impossible for a judge to always keep such matters in his mind.

3. It is urged that the court permitted the jury to give exemplary damages. It would be necessary, perhaps, to discuss this question,. if that were the fact. It is a fair inference, from the instructions given, that counsel in their arguments had spoken of exemplary or punitive damages. The judge said to the jury:

“There is no such thing as damage by way of example. There is no such thing in Michigan as a permission upon the part of the jury to add damages to what they find the plaintiff has actually suffered, by way of punishment, by way of example, or for any other purpose.”

It is impossible to conclude that the jury were permitted to find exemplary damages.

4. Error is assigned upon the instruction that there was no evidence that plaintiff had run away with Agnes Hartung, or had abandoned or failed to take care of his wife and family. The instruction was correct. There was no evidence to sustain either charge. Plaintiff was at his work as usual; was at his home as usual; came home as uspal the night of the publication; and the record is barren of testimony that he failed to provide his wife and family with the support commensurate with his means. There was testimony of undue intimacy with Miss Hartung, but the record is barren of any evidence that they had eloped. An investigation by the reporter would have revealed the facts, and undoubtedly have prevented the publication.

5. Several questions are raised upon the admission and rejection of evidence. We do not consider it important to discuss fhem. The circuit judge gave a wide latitude to the defendant in inquiring into the relations between plaintiff and his wife, to show his character, and all the circumstances which could go in mitigation of damages. The trial was a long one. The cross-examination of plaintiff covers 60 pages. Nothing was excluded which would tend to show the truth of the charges made.

6. The record in this case contains 344 pages. The bill of exceptions contains everything that happened upon the trial, including many colloquies between counsel, and between counsel and the court. A record of less than one-half the length would have been ample to present all the points raised. We have many times condemned this method of preparing bills of exceptions. It unnecessarily increases the work of the court. Defendant will recover only one-half of cost of record.

Judgment reversed, and new trial ordered.

The other Justices concurred.


text:
    STURM v. KELLY.
    1. Drains — Application—Establishment—Cleaning Out.
    An application for the location and establishment of a drain will confer jurisdiction upon the commissioner to clean out an old drain upon the line of the new one, and to utilize it as a portion of the new one, without separate proceedings being taken for that purpose.
    2. Same — Right oe Wav — Release—Railroad Lands.
    The granting by a railroad company of a written license for a drain to cross its right of way, and the erection by it of a culvert under its roadbed for the purpose, is sufficient as a release of the right of way.
    3. Same.
    The release of a right of way for one drain cannot operate as a release for another.
    4. Same — Irregularities—Correction.
    Under Act No. 254, Pub. Acts 1897, chap. 5, § 3, authorizing the court to direct the county drain commissioner to correct any errors in drain proceedings, and then to proceed as though no errors had been made, proceedings may stand, although the commissioner neglected to obtain from one of the' landowners a release of the right of way, upon the commissioner’s accounting for the irregularity and securing the necessary release.
    5. Same — Use oe Established Drain — Necessity eor New Release.
    A drain commissioner may, in establishing a drain, use a drain formerly established, and clean it out, without obtaining a release from abutting owners along the established drain, where such owners will not be damaged by the use of the drain, but, on the contrary, will be materially benefited, and where the dimensions of the old ditch will not be changed.
    Error to Bay; Maxwell, J.
    Submitted May 10, 1899.
    Decided July 11, 1899.

      Certiorari by George M. Sturm to review the action of John A. Kelly, drain commissioner of Bay county, in laying out and establishing a drain. From a judgment sustaining the proceedings, petitioner brings error.
    Modified and affirmed.
    A petition for the location and establishment of a drain three miles in length was presented to -the respondent. He made the proper survey, and located and established the drain, but did not follow the exact survey set forth in the application. He located it so as to utilize an old drain or water-course, which he ordered to be cleaned out from a point where the new drain entered it to its terminus. Proceedings were taken in the circuit court for the county of Bay to test the validity of the drain. That order was set aside for the reason that no review of the assessment was held according to law. The court ordered the commissioner to reassess the cost of the construction, cleaning out, and establishing of the drain, and to apportion the benefits, as though no errors had been made. The drain commissioner made a new order, and this proceeding was brought to test the validity of such order. The record presents four questions, stated as follows:
    (1) Did the application for the establishing of a drain authorize the drain commissioner to make his order to clean ont an established drain, and carry on further proceedings for that purpose ?

      (2) Can th'e drain commissioner make his final order to establish a drain, let contracts, assess a per cent, for benefits, and proceed with the construction of the drain, without obtaining from thé owners of land to be taken for that purpose a release for a. right of way, or the securing of said right by legal proceedings ?
    (3) Was the action of the commissioner in making his final order of determination to establish the drain, without first obtaining the right to cross the roadbed of the railroad company in the manner provided by law, legal, and ■can the commissioner lawfully let contracts, and assess a per cent, of benefits, and proceed with the construction of the drain, before he has secured the right to legally cross the property of the railroad company ?
    (4) Can the drain commissioner appropriate and use an established drain as the outlet for a new drain to be established, without the consent of the owners of the land on each side of the established drain ?

      Lyon & Pierce, for appellant.

      John E. Kinnane and Edward E. Anneke, for appellee.
   Grant, C. J.

(after stating the facts). 1. The important question is the first one. The petition to the commissioner did not ask for the cleaning óut of an established drain, and it is urged that the commissioner obtained no jurisdiction to make this part of the order. The respondent makes the following return upon this point:

‘ ‘ Said established drain is the natural outlet of the waters to be drained by said Behmlander drain which are situated north of the Salzburg road; and there is no feasible outlet for said last-mentioned waters in 'the direction of Squaconning creek, except through said established drain, without constructing a new drain practically parallel therewith. That a large portion of said established drain, so called, is a creek or natural water-course, and is so classed in the field-notes of the government survey of said land. * * * That the application upon which my said action with reference to said drain is based, while formally asking for the establishment of a drain as if no drain had ever been established upon this line or any portion thereof, was, in my judgment, sufficient’ both for the establishment of a drain and as giving jurisdiction and authority to clean out and make use of that portion of a then existing drain or water-course covered by the application, and which greatly lessened the expense and labor required to establish said drain and secure the proper drainage for the lands adjacent thereto. * * * Said petition cannot be reasonably construed to mean, or to have been intended by the signers thereof, that a new drain was to be established between the points ■ aforesaid, and can only be construed to mean that the -portion of said drain between the points aforesaid was to be established by cleaning out and making use of the said established drain or water-course. And that said application, in substance and in fact, asked for and gives jurisdiction for doing the work actually done by me in the establishing of said drain as aforesaid, and that said application can only be construed as asking for the establishment of a drain by making a new cut along the line thereof to the point where the established drain, so called, is reached, and cleaning out and improving said established drain so as to conform with the cut so made from that point to the terminus of the drain.”

There was no record of the location and establishment of this so-called old drain. Under the return, it was once a natural water-course. We think this point is ruled by Hauser v. Burbank, 117 Mich. 463. Where a watercourse, or a portion of an old drain, becomes a part of a new drain to be established, we do not think that separate proceedings are necessary to be taken for cleaning out the old drain, or that the petition should ask that the old drain be cleaned out. We hold the petition sufficient.

2. The second and third questions may be treated together. The railroad company did not execute a formal release, but it gave a written consent or license for the drain to cross its right of way, and erected a culvert under its roadbed on the line of the grade of the drain for that purpose. This is a sufficient release.

One Meyer owned some land along the drain, petitioned for the drain, and is the only abutting landowner who did not release his right of way. He had signed a release of right of way for a like drain one year before. Kespondent was unable to see him, to procure his signature to a release, and relied upon his willingness to give the same when called for. The release for a right of way for one drain cannot operate as a release for another. The obtaining of releases is essential. Zabel v. Harshman, 68 Mich; 273. The court, under section 3, chap. 5, Act No. 254, Pub. Acts 1897, is authorized to direct the county drain commissioner to correct any error, and then proceed as though no error had been made. Under this provision, and the return of the respondent, we think it proper to permit the proceedings to stand, upon the respondent’s acquiring a release of the right of way from Mr. Meyer.

3. We do not think that a release by the abutting owners along the so-called established drain was essential, in the face of the fact that the return shows that such owners will not be damaged by the use of this drain, but, on the contrary, will be materially benefited, and that the dimensions of the ditch are not changed.

Judgment modified and affirmed.

The other Justices concurred.


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    DENTON v. FARMERS’ MUTUAL FIRE INSURANCE CO.
    1. Fire Insurance — Board of Auditors — Powers.
    The charter of a mutual fire-insurance company provided that the auditors living in the county where a loss occurred should investigate the cause of the loss, and, if it. should appear that it was not the result of carelessness or any violation of the charter and by-laws, should ascertain the amount of loss, and authorize its payment; and that in case of any disagreement between the auditors and the insured “as to the liability, in whole or in part,” arbitrators should be apx>ointed, by whom the “amount of loss ” should be determined. Held, that the board of auditors was not authorized to determine a question of liability under the policies issued, but only the actual amount of loss sustained.
    2. Same — Denial of Liability — Arbitration Clause — Waiver.
    Where the auditors of a fire-insurance company, authorized merely to determine the amount of loss sustained by an insured, their determination to be final in the absence of a demand for arbitration, found that the insured had been guilty of “evil practice,” and on that ground assumed to reject the claim entirely, which finding was adopted by the company, the arbitration clause was waived, and the insured was free to resort to the courts.
    Error to Wayne; Erazer, J.
    Submitted June 6, 1899.
    Decided July 11, 1899.

      Assumpsit by Simeon C. Denton against the Farmers’ Mutual Fire Insurance Company of Monroe and Wayne counties on a policy of insurance. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    This is a suit upon a policy of insurance commenced in justice’s court, and appealed to tbe circuit, where plaintiff recovered a verdict and judgment for $100. The defendant gave notice, with its plea of the general issue, that, under the charter of the defendant, plaintiff was barred from maintaining an action on the policy, because the auditors of said company had found and decided that the defendant was not liable, and that their finding was conclusive upon the plaintiff. Other defenses were interposed, involving issues of fact, which the jury have decided against the defendant. The question arises upon sections 22 and 23 of the charter, as follows :
    “Sec. 22. In case of fire or damage by lightning, the secretary shall notify the auditors living in the county where the loss occurs, and the president, of such loss or damage, within 10 days after the secretary shall be informed in writing by the owner of the property burned or injured, giving the day and hour of such meeting, the place to be at or near the place of the property burned or damaged. They shall then proceed to investigate the cause or origin of such loss or damage, and if it shall appear that it was not the result of carelessness, or in violation of the charter and by-laws of this company, they shall ascertain the amount of loss or damage done by fire or lightning, authorizing the payment of such loss so determined, as in manner hereinafter provided: Provided, the insurance on the same is large enough to cover said loss.
    “It shall be the duty of the secretary to record such determination, and draw his order, countersigned by the chairman of the board of auditors, on the treasurer for the same: Provided, that, where the loss or damage claimed is less than ($100), the secretary and director of the township may examine and determine the amount of loss or damage, and the secretary shall draw his order on the treasurer, countersigned by the director, for the same, payable within sixty days from date thereof; and, in case there is not sufficient money in the treasury to pay the same, the board of directors shall provide for the same by resolution authorizing the proper officers to borrow money for tbe same.
    “Sec. 23. No person shall have claim for more than the amount of his insurance as shall be determined by the board of auditors; but in case of any disagreement between said board and the loser, either as to the liability in whole or in part, said board shall select' a suitable and disinterested person, not a member of said company, residing in said counties of Monroe and Wayne, to act as referee; the loser shall choose another, like situated as above, not his relative, nor an agent of .a stock company; and the. two referees so chosen, in case of their disagreement, shall select a third of like qualifications of second referee. Said referees so chosen, or, if a third shall be selected, a majority of them, shall determine and decide the amount of the loss, and their decision shall be final; and the reasonable and necessary expense of such reference, to be fixed and determined by such referees, shall be borne and paid by the insured in case the referees shall not award a larger sum than was awarded by the board of auditors, and shall be borne and paid by the company in case such referees shall award a larger sum than that awarded by the auditors. The insured shall be deemed to have accepted the award of the auditors, unless, within ten days after notice of said award, he shall file with the secretary of such company notice in writing that he declines to accept such award, and shall within the same time designate the referee selected by him, and offer to enter into a submission to arbitration as above provided.”
    On June 2, 1897, the fire occurred. On June 16th the auditors met. Plaintiff appeared, presented his claim against the company, testimony was taken touching the origin of the fire, and an adjournment had without reaching any decision. Whether there was to be a further hearing by the board, and plaintiff was to be notified, are disputed questions. On June 23d the board met, and made a written finding, holding that “this board are of the opinion that said evidence shows evil practice on the part of said claimant, and we therefore reject the claim, and authorize our secretary to so notify said claimant, Simeon Denton, of our action.” On July 14th plaintiff tendered arbitration, and named an arbitrator. June 24th the secretary notified plaintiff in writing of this action on the part of the board, and informed him that the company would not pay the same. The court instructed the jury that the refusal to adjust the loss in any way would be a waiver of the terms of the policy in regard to arbitration.

      Charles R. Whitman, for appellant.

      Edward P. Allen, for appellee.
   Grant, C. J.

(after stating the facts). The correctness of the instruction depends upon the construction to be given to the terms of the policy. Does the policy clothe the board of auditors with power to determine all questions of liability under the policies issued, or only to determine the amount of loss or damage sustained? If the former be held, as counsel for defendant contends, the case might then be governed by Raymond v. Insurance Co., 114 Mich. 386, and authorities there cited. If the latter be held, the arbitration clause was waived, under the well-established rule. 2 Beach, Ins. § 1244; 2 May, Ins. § 4966; 2 Bid. Ins. §§ 1174, 1175; Bailey v. Insurance Co., 77 Wis. 336; Western Horse & Cattle Ins. Co. v. Putnam, 20 Neb. 331. Without entering into an extended discussion, we are of the opinion that the sections of the charter above cited do not give to the board of auditors the power to pass upon questions of liability like that in this case, viz., that the plaintiff had intentionally fired his own building. The provisions contemplate a valid loss, and confer upon the auditors only the power to fix the amount. A policy of insurance, under the defenses set up in this case, cannot be valid in part and invalid in part, but there may or may not be any damage. A policy of insurance is usually either valid or void in toto. The term, “liability in-whole or in part,” must be held to refer to the loss or damage. These auditors have no other power than that conferred upon them by the charter. Courts will not read such a power into a charter, and, in the absence of clear and explicit language, will hold that it is not conferred. Sections 22 and 23 give them the authority to determine and decide the amount of the loss, and upon that alone is their decision final, if no arbitration is demanded. It is true that section 22 authorizes the auditors to investigate “the cause or origin” of the fire, .but this is only preliminary to determine whether they shall adjudicate the amount of loss. These officers are chosen by the charter to represent the company, and, when they absolutely deny liability, such action, waives all provisions in regard to ascertaining the loss, and leaves the insured free to resort to the courts.

We do not think that any prejudicial error was committed in the admission or rejection of testimony. Judgment is affirmed.

The other Justices concurred.


author: Montgomery, J.

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    CONLEY v. McMILLAN.
    1. Taxes — Enforcement in Chanoerv — Jurisdiction—Setting Aside' Sale.
    The jurisdiction of the court in a proceeding by the auditor general to enforce the payment of delinquent taxes is not defeated by the fact that the collecting officer might have made the amount of the tax out of personal property on the premises, or that the return of such officer to the county treasurer was prematurely made; and hence a sale for such taxes will not be set aside, after confirmation, on either of said grounds.
    2. Same — Confirmation of Sale — How Effeoted.
    The entry of a formal order confirming a tax sale is unnecessary where no objections are filed thereto; it being provided by section 70 of the law of 1893 (Act No. 206, Pub. Acts 1893) that such sales shall stand confirmed, without the entry of any order, unless objections are filed within a specified time.
    Appeal from Macomb; Eldredge, J.
    Submitted January 3, 1899.
    Decided July 11, 1899.
    Petition by Catherine Conley and others against Alexander McMillan and Charles Cannell to„ set aside a tax sale. From an order granting the prayer of the petition, defendants appéal.
    Reversed.

      Bacon & Palmer, for petitioners.

      Dwight N. Lowell, for defendants.
   Montgomery, J.

This is a petition to set aside a sale of lands for taxes under a decree rendered by the circuit court for the county of Macomb, in chancery. The petition was presented to the court in which the decree was rendered, and the relief prayed was granted. The grounds upon which the relief was afforded were two:

1. That the treasurer failed to resort to personal property on the premises for the collection of the tax.

2. That the warrant for the collection of taxes was returned to the county treasurer on February 26th, instead of March 1st.

The statute (section 42, Act No. 206, Pub. Acts 1893) reads:

“The supervisor shall thereupon prepare a copy of the said assessment roll, with the taxes assessed as herein-before provided, and annex thereto a warrant signed by him, commanding the township or city treasurer to collect the several sums mentioned in the last column of such roll, and to retain in his hands the amount receivable by law into the township treasury for the purposes therein specified, and to account for and pay over to the county treasurer the amounts therein specified for State and county purposes, on or before the first day.of March next following.”

And section 55 is as follows:

“If the township treasurer or other collecting officer shall be unable to collect any of the taxes on his roll, assessed on real property, he shall make a statement of the same, with a full and perfect description of such property as assessed upon said roll, with the several taxes assessed upon each parcel thereof, which statement shall be verified by the affidavit of such treasurer or collector that such taxes remain unpaid, and that he has not, upon diligent inquiry, been able to discover any goods or chattels liable to pay such sums, whereupon he could levy the same.”

It is contended by the petitioners that return at the proper date is jurisdictional, and that the return in this case was premature, and hence all subsequent proceedings are invalid. Under the former tax law a premature return was held to deprive the owner of a valuable right, and to render a sale void. Bailey v. Haywood, 70 Mich. 188. See, also, Millard v. Hayward, 107 Mich. 219. The petitioners contend that the case of Thatcher v. Powell, 6 Wheat. 119, is in principle like this. On the other hand, the reasoning of the contestants is (1) that the statute makes the tax a lien upon the land from December 1st; (2) that the jurisdiction of the court to enforce this lien is obtained on publication of notice; and (3) that any intervening irregularity is not material, — -citing Auditor General v. Sparrow, 116 Mich. 574. The case of Thatcher v. Powell, supra, involved the construction of a very different statute from ours. The return of the sheriff to the court was the basis of jurisdiction. It was held that the absence of the report defeated the jurisdiction. Under our statute, however, the petition of the auditor general, together with proof of proper publication, confers jurisdiction upon the court, and the failure of the collector to make a timely x-eturn does not affect the jurisdiction or avoid the lien. In Auditor General v. Sparrow, supra, referring to the force and effect of our statute, Mr. Justice Hooker said:

‘ ‘ The law proceeds upon the theory of the existence of a claim upon behalf of the State against the property owner for taxes which have not been paid, and cites him into court to answer a bill to enforce this claim against the property taxed. It is not a sufficient answer for him to show that the treasurer would have been a tx-espasser had he seized personal property, or that he had not demanded payment, or that it might have been collected had he been diligent or brought an action, — all of which, perhaps, are permitted, and possibly directed, by the law. If all of these things should be proved, the fact would remain that the tax was still due and unpaid.”

In a supplemexxtal brief the petitioners’ counsel state that the sale had not been confirmed when the petition was filed, and that it does not appear by the record that it has ever been confirmed. It is apparent that what is meant by the petitioners’ counsel is that no formal order confirming the sale has been entered; but section 70 of the tax law provides that:

“Alisales shall stand confirmed, subject to the right of redemption provided for in section seventy-four, unless objections thereto are filed within eight days after the time limited for filing such report, without the entry of an order or further notice. ”

We find no jurisdictional irregularity, and feel compelled to reverse the order below, and dismiss the petition, with costs.

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


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    WABASH RAILROAD CO. v. COMMISSIONER OF RAILROADS.
    Railroads — Interlocking Switch and Signal System at Crossings — Division or Expenses.
    3 How. Stat. § 3301, authorizes the railroad commissioner to require railroad companies to maintain flagmen or gates at crossings of other roads, and provides that the expense thereof shall be borne jointly, in equal proportions, by the two companies. Section 3310, added as an amendment to the same statute, gives like authority with respect to the interlocking switch and signal system, but makes no provision for the apportionment of the expense between the companies. Held, that the sections are in pari materia, and hence the expense of the interlocking system, when ordered by the commissioner, is to be shared equally by the companies involved.

      Mandamus by the Wabash Railroad Company to compel Chase S. Osborn, commissioner of railroads, to vacate an order apportioning between relator and another railroad the expense of an interlocking switch.
    Submitted June 6, 1899.
    Writ granted July 11, 1899.

      Edward A. Gott, for relator.

      Horace M. Oren, Attorney General, for respondent.
   Montgomery, J.

The line of the relator’s road is intersected at Britton, Lenawee county, by the Cincinnati Northern Railway. On the 6th day of April, 1899, the respondent, acting under authority of section 3310, 3 How. Stat., made an order that the two roads construct and maintain an interlocking switch and signal service, and that the expense should be borne three-fourths by the relator and one-fourth by the Cincinnati Northern. This is an application for mandamus to require respondent to vacate this order, and enter an order requiring the two companies to bear the expense in equal parts.

Section 3301, 3 How. Stat., is a portion of the act to provide for the appointment of a commissioner of railroads, and define his powers and duties and fix his compensation. This section authorizes the commissioner to require railroad companies to station flagmen at crossings, or maintain gates, and further provides that, when this is done, the expense thereof shall be borne jointly, in equal proportions,' by the two companies. By a subsequent amendment, section 3310, 3 How. Stat., was added to the act providing for a commissioner of railroads, etc., and, as it now stands, reads as follows:

“ Authority is hereby given to said commissioner, and it shall he his duty, if he shall deem it practicable, to prescribe the use of the interlocking switch and signal system, or some other, system that will secure equal safety of the operation of trains of cars, at all crossings and junctions of railroads in this State.”

It will be observed that, unless the two sections (3301 and 3310) are to be read together, there is no limitation placed upon the authority of the commissioner as to fixing the proportion of the expense to be borne by each company. Tfhe attorney general contends that section 3310 is to be construed independently, and that the commissioner is authorized to fix the proportion in his discretion. It will be seen, however, that no such power is expressly given by this section; nor does this section, in terms, give authority to require the railroads to bear the expense at all, although it is clear enough that this was expected. The two sections are in pari materia. Both relate to provisions for safety at crossings, and should be construed together. Thus construed, the first section fixes the proportion to be borne by each company.

The writ must issue.

The other Justices concurred.


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    McFADDEN v. BRADY.
    1. Tax Sales — Validity—Want of Report.
    A tax sale is rendered void by the failure of the county treasurer to file a report thereof in the office of the county clerk, as required by section 70 of the tax law of 1893.
    3. Same — Presumptions.
    The provision of section 99 of the tax law, that no tax, or sale for any tax, shall be rendered invalid by showing that any record, statement, certificate, affidavit, paper, or return cannot be found in the proper office, and, unless the contrary is affirmatively shown, the presumption shall be that such record was made, and such certificate, statement, affidavit, paper, or return was duly made and filed, does not apply to the report of sale required to be filed with the county 'Uerk by the county treasurer. '
    3. Same — Bill to Quiet Title — Defenses—Attempted Payment.
    A tax deed cannot be shown to he invalid, on a bill to quiet title by one claiming thereunder, on the ground that the owner attempted to pay the taxes, and was prevented through no fault of his own. Kneeland v. Wood, 117 Mich. 174, followed.
    4. Same — Proof of Publication — Sufficiency.
    An affidavit showing the publication of a copy of the auditor general’s petition in a tax proceeding, and of the order of hearing thereon, for “four successive weeks prior” to the day fixed for the hearing, is insufficient to prove a publication for “four successive weeks next prior” to such day, as required by section 66 of the tax law, where the order was dated 70 days before the day fixed for the hearing.
    5. Same — Jurisdiction—Parol Evidence.
    Under the provision of said section that proof of the publication of such petition and order shall be filed in the office of the county clerk before any final order is made, the filing of such proof is prerequisite to the jurisdiction of the court to enter a decree of sale, and any deficiency therein cannot be supplied by parol.
    Appeal from Baraga; Haire, J., presiding.
    Submitted January 6, 1899.
    Decided July 11, 1899.
    Bill by Charles W. McFadden against Thomas Brady and others to quiet title. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Chadbourne & Rees, for complainant.

      E. J. Mapes, for defendants.
   Montgomery, J.

Bill to quiet title. Complainant claims under tax deeds based on the sale of 1893 for taxes of 1891, and on the sale of 1894 for taxes of 1892. Defendants own the government title. The case was heard in open court, and the bill of complaint dismissed. The case is brought here on appeal.

1. The tax deed of 1893, for taxes of 1891, was held void for the reason that no report of sale was filed in the office of the county clerk, as required by section 70 of the tax law (Act No. 206, Pub. Acts 1893). This holding is supported by Millard v. Truax, 99 Mich. 157, and Jenkinson v. Auditor General, 104 Mich. 34. It is insisted, however, that the court was in error in finding as a fact that no report of sale was filed. The evidence upon this point was that no report was found in the files of the case in the circuit court in chancery. Complainant cites section 99 of the tax law, which provides, “No tax, or sale of property for any tax, shall be rendered or held invalid by showing that any record, statement, certificate, affidavit, paper, or return cannot be found in the proper office, and, unless the contrary is affirmatively shown, the presumption shall be that such record was made, and such certificate, statement, affidavit, paper, or return was duly made and filed,” and contends that, under this section, the absence of the report is no evidence that such a report was not in fact made. This contention cannot be sustained. We think the purpose of reversing the presumption as to records of judicial proceedings is not manifested by these provisions. It will be observed .that the report of sale is not specifically mentioned, but the papers mentioned are certificate, affidavit, paper, and return, — such papers as are usual in proceedings preceding the decree. We held in Benedict v. Auditor General, 104 Mich. 269, that this provision did not apply to the affidavit of publication in the proceeding to adjudicate the tax delinquent. The case is analogous.

2. As to the deed of 1894, for taxes of 1892, the court held the deed invalid, on the ground that the owner had attempted to pay the taxes, and had been prevented through no fault of his own. Complainant contends that this proceeding is not a proper one in which to try this question. We think the contention should be allowed. See Kneeland v. Wood, 117 Mich. 174.

3. The defendants further contend that, as to the tax of 1892, the proceedings taken in 1894 are invalid, for want of a sufficient affidavit of publication; and, as this point was distinctly made in the court below, we are bound to consider it. The affidavit was as follows:

“State of Michigan, County of Baraga.
“Sylvester Kinney, being duly sworn, deposes and says that he is the publisher of the L’Anse Sentinel, a newspaper published at L’Anse, in the county of Baraga and State of Michigan, and circulating in said county; that he is familiar with the facts herein set forth; and that the order and petition, of which the annexed printed advertisement is a true copy, was duly published in said newspaper once a week for four successive weeks (five publications) prior to the 2d day of October, A. D. 1894.” (Duly sworn to.)

Section 66 of the statute requires publication for four consecutive weeks next prior to the time fixed for hearing. We think it entirely clear that this proof was insufficient. The order which was published was dated 70 days before the day fixed for the hearing. Certainly any four weeks within the two dates would have answered the description given in the affidavit.

An attempt was made to show by parol testimony in this case that the notice was duly published. The statute (section 66) provides that “proof of the publication of the order and petition herein required shall be filed in the office of the county clerk before any final order is made.” This clearly manifests a purpose to make the filing of proof of publication a prerequisite to the entry of a decree, and, when the court acted without this evidence of authority, the order was without jurisdiction.

Decree will be affirmed.

The other Justices concurred.


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    JACKSON v. PEOPLE’S SAVINGS BANK.
    Garnishment — Interpleaded Claimant — Burden of Proof.
    One interpleaded in garnishment proceedings under 3 Comp. Laws 1897, § 10627, as claimant of the fund, has the burden of sustaining his title.
    Error to Wayne; Frazer, J.
    Submitted June 22, 1899.
    Decided July 11, 1899.
    Garnishment proceedings by Archie H. Jackson and Joseph F. Jacobs against the People’s Savings Bank, as garnishee of Herman Marx. Adolph Marx and Herman Marx, copartners as Marx Bros., were interpleaded as claimants. Prom .a judgment for plaintiffs on verdict directed by the court, the garnishee and the claimants bring error.
    Affirmed.

      Keena & Lightner, for appellant bank.

      Sloman & Groesbeck, for appellants Marx Bros.

      Brennan, Donnelly & Van De Mark (Selling & Hatch, of counsel), for appellees.
   Montgomery, J.

Plaintiffs sought to recover a sum deposited with defendant bank as garnishee of Herman Marx. The disclosure showed a deposit in the name of Marx Bros. Adolph and Herman Marx were cited in, under section 10627, 3 Comp. Laws 1897, to maintain their title to the fund. The sole question we need discuss is whether, under this statute, the burden of proof rests with the claimant in a case of this nature. The statute provides that, upon service being made, such claimant shall be deemed a defendant to the garnishee "action, and within 20 days shall answer, setting forth his claim, or any defense which the garnishee might have made. The statute further provides that, in case of default, judgment shall be rendered, which shall conclude any claim on the part of such defendant, and also that the court may direct an issue. The circuit judge was of the opinion that, on an issue thus made up, the claimant has the burden of sustaining his claim. We think this was correct. Burnham v. Insurance Co., 119 Mich. 588; Smith v. Barclay, 54 Minn. 47; Teichman Commission Co. v. American Bank, 27 Mo. App. 676; 9 Enc. Pl. & Prac. 840. The claimants failed to support their claim to the fund, and the court properly directed a verdict.-

Judgment affirmed.

The other Justices concurred.


text:
    FIRST BAPTIST CHURCH OF BAY CITY v. ROBERTS.
    1. Equity Practice — Opening Decree — Amendment op Pleadings — Tax Sales.
    The court has power, on petition, to open a decree on a petition to set aside a tax sale, such decree not having been enrolled, and to permit an amendment of the last-mentioned ''petition, although the term at which the decree was entered has expired.

    3. Tax Sales — Validity op Decree.
    A tax sale will be set aside on petition where it is shown that the figures in the column of the tax record headed “Amount Decreed against Lands ” were inserted by an employé in the office of the county treasurer, after the record had passed from the control of the court.. Morgan v. Tweddle, 119 Mich. 350, followed.
    Appeal from Bay; Maxwell, J.
    Submitted June 7, 1899.
    Decided July 11, 1899.
    Petition by tbe First Baptist Church of Bay City against Clinton Roberts and George O. Crane to set aside a tax sale. Decree was entered in accordance with the prayer of the petition, after which petitioner filed a second petition, asking that the decree be opened, and the petitioner permitted to amend its original petition. This petition was granted, and an order afterwards entered affirming the former decree. Defendants appeal.
    Affirmed.

      J, L. Stoddard, for petitioner.

      Black & Brown, for defendants.

       Upon this point see Hall v. Mann, 118 Mich. 201, 205.

   Montgomery, J.

This is a petition to set aside a decree entered against the petitioner for taxes assessed upon the general tax roll of 1894. From an order granting the relief prayed, the respondents, Roberts and Crane, appeal.

After the original petition was filed, an amendment was permitted, setting up that in the decree, when entered, was a blank, under the heading “Amount Decreed against Lands,” which was subsequently filled out by an employé in the county treasurer’s office; and the evidence introduced in support of the petition fully sustains the allegation, bringing the case within the case of Morgan v. Tweddle, 119 Mich. 350.

It is objected that, as the term at which the decree was entered had elapsed, an amendment to the petition could not be permitted. The decree had not been enrolled, and a bill of review was not required. We think it was within the power of the court to permit the amendment.

Inasmuch as this error avoids the decree, we need not discuss the other questions raised.

The order appealed from is affirmed.

The other Justices concurred.