author: N. J. Kaufman, J.

text:
    LEMIRE v GARRARD DRUGS
    Docket No. 43864.
    Submitted January 2, 1980, at Detroit.
    Decided February 20, 1980.
    Leave to appeal applied for.
    Mary E. Lemire’s mother purchased Diethylstilbestrol (DES) from Garrard Drugs while she was pregnant with Mary sometime in 1954 or 1955. DES produces a cancerous condition of the cervix of the female offspring of women who use DES during pregnancy. Mary developed a cancerous cervical condition. She had surgery but will continue to require treatment. The assets of Garrard Drugs were purchased by Neil and Doris Dorfman, doing business as Leslie Drugs, in 1971. They have operated the store at the same location since under the name Leslie Drugs. Mary brought an action against Garrard Drugs and against Neil and Doris Dorfman, doing business as Leslie Drugs. The complaint alleged negligence, breach of warranty of fitness for a particular purpose and breach of implied warranties of merchantability. Defendant Garrard Drugs was dismissed from the action due to plaintiff’s inability to serve timely process. Leslie Drugs and Neil and Doris Dorfman were granted a summary judgment on the ground that plaintiff had failed to Stbte a claim upon which relief could be granted, Wayne Circuit Court, John M. Wise, J. The trial court indicated that plaintiff did not state a cause of action because defendants were not successors to Garrard Drugs and therefore not subject to successor liability, that defendants were not involved in the sale of the drug so as to give rise to direct liability and that the original drug store was not liable because it was filling a doctor’s prescription. Plaintiff appeals. On appeal she claims the court erred in its conclusion as to defendant’s successor liability status. Held:

    1. Facts must be developed which will support a finding of vicarious or successor liability to be successful in an implied warranty action. Plaintiff has not shown that defendant Leslie either expressly or impliedly assumed the liabilities of Garrard Drugs, the name Garrard was retained for only a very short period and defendant Leslie did not hold itself out as a continuation of defendant Garrard Drugs. These facts do not support a finding of vicarious or successor liability. Furthermore, the successor liability doctrine is more commonly applied to the sale and consequent dissolution of a corporate enterprise because á corporation’s status as an artificial legal entity makes it possible for a corporation to avoid liability by altering its form while maintaining the business enterprise. The successor liability doctrine served to mitigate the effects of this practice. The sale of a sole proprietorship, such as a drug store, does not involve a situation where the selling entity is immediately dissolved, or where the management and control have remained the same with only the form of the business entity altered to avoid liability. Thus, there is no reason to impute successor liability to defendant Leslie Drugs.

      References for Points in HeadnotEs
    [1] 63 Am Jur 2d, Products Liability §§ 3, 22, 25 et seq., 110 et seq.

    [2] 19 Am Jur 2d, Corporations § 1562.
    Products Liability: liability of successor corporation for injury or damage caused by product issued by predecessor. 66 ALR3d 824.

      2. The only connection the Dorfmans had with Garrard Drugs was the purchase of the store. There was no connection with plaintiffs mother or knowledge of the alleged sale of DES. This is not a case for the application of the successor liability doctrine.
    3. As a general rule, druggists are not liable for correctly filling a doctor’s prescription. Therefore, defendant Leslie can hardly be held vicariously liable for an act for which defendant Garrard is not directly liable.
    Affirmed.
    1. Products Liability — Theories of Recovery — Negligence — Implied Warranty.
    Two theories of recovery are recognized in product liability cases, negligence and implied warranty: under a negligence theory, a plaintiff must establish the traditional common-law elements of duty, breach, damage and causation; under implied warranty, facts must be developed which will support a finding of vicarious or successor liability.
    2. Products Liability — Sales — Corporations — Sole Proprietor-ships — Vicarious and Successor Liability.
    Successor liability usually attaches in the sale of a corporation because the sale involves a situation where the selling entity is immediately dissolved or where the management and control have remained the same with only the business entity altered to avoid liability; the sale of a sole proprietorship, such as a drug store, presents a different situation and where there are no allegations of fact which could be developed to support a finding of vicarious or successor liability in the new owner, there is no reason to impute either vicarious or successor liability.

      Gromek, Bendure & Thomas, for plaintiff.

      Tyler & Canham, P.C., for Neil Dorfman and Doris Dorfman d/b/a Leslie Drugs.
    Before: T. M. Burns, P.J., and Bashara and N. J. Kaufman, JJ.
   N. J. Kaufman, J.

Plaintiff appeals as of right from a summary judgment entered in the defendants’ behalf in Wayne County Circuit Court dismissing her product liability complaint with prejudice.

Plaintiff’s complaint averred: that plaintiff’s mother purchased Diethylstilbestrol (DES) from defendant Garrard Drugs while she was pregnant with plaintiff sometime in 1954 or 1955; that DES produces a cancerous condition of the cervix of the female offspring of women who use DES during pregnancy; that, as a result of defendant Garrard’s sale of DES to plaintiff’s mother, plaintiff developed a cancerous cervical condition which was removed, but which will continue to require treatment to determine whether the carcinogenic cells have regenerated and to determine whether further surgery is required; and, that the assets of the now defunct defendant Garrard Drugs were purchased by defendant Leslie Drugs in April, 1971, and owned and operated at the same location since by defendants Neil and Doris Dorfman. Plaintiff’s complaint alleged negligence, breach of warranty of fitness for a particular purpose and breach of implied warranties of merchantability.

Defendant Garrard Drugs was dismissed from the action without prejudice due to plaintiff’s inability to serve process within 180 days from the filing of the complaint. Defendant Leslie Drugs filed a motion for summary judgment based on GCR 1963, 117.2(1), alleging that plaintiff had failed to state a claim upon which relief could be granted. This motion was granted, giving rise to this appeal.

The trial court based its ruling on two fronts. First, the court indicated that plaintiff did not state a cause of action because defendants were not successors to Garrard Drugs and, therefore, not subject to successor liability. Nor were they involved in the sale of the drug so as to give rise to direct liability. The second ground upon which the trial court granted defendant’s motion was the absence of liability on the part of the original drug store, Garrard Drugs, because it was filling a doctor’s prescription.

Plaintiff presents three allegations of error in this appeal, only one of which we find warrants extended discussion. She claims the trial court erred in its conclusion as to defendant’s successor liability status.

In Michigan, two theories of recovery are recognized in the area of products liability: negligence and breach of implied warranty. Johnson v Chrysler Corp, 74 Mich App 532; 254 NW2d 569 (1977). Plaintiff’s complaint sets out both theories. Under a negligence theory, plaintiff must establish the traditional common-law elements of duty, breach, damage and causation. Moning v Alfono, 400 Mich 425; 254 NW2d 759 (1977). A summary judgment based on GCR 1963, 117.2(1) may properly be granted in a negligence cause of action when no legal duty of care has been alleged. Woodworth v Brenner, 69 Mich App 277; 244 NW2d 446 (1976). See also, Bashara, The Elusive Summary Judg ment Rule: Sifting Through the Maze, 1976 Det Col L Rev 397. Thus, since plaintiff Alleged no direct legal duty on the part of the defendants, if there was no vicarious or successor liability on the facts as alleged, or as they could be developed* then it appears that summary judgment could properly be granted on this ground.

Similarly, with regard to plaintiff’s breach of warranty claim, pláintiffs complaint failed to allege any sale by defendant Leslie Drugs oüt of which the implied warranty could arise. Therefore, absent allegations of fact which could be developed to support a finding of vicarious or successor liability, the summary judgment could properly have been granted. In view of the foregoing, we find the issue of defendant’s successor liability status a crucial one. If no factual development of plaintiff’s allegations could süpport a claim of successor liability, the summary judgment was properly granted.

The successor liability doctrine is more commonly applied to the sale and consequent dissolution of a corporate enterprise. In such a situation, a plaintiff establishes a prima facie case of continuation of corporate products liability by showing: a retention of key personnel, assets, general business operations, and the corporate name; that the seller ceased business operations, liquidated and dissolved soon after distribution of consideration from the buyer; the buyer assumed those liabilities of the seller ordinarily necessary for the continuation of the enterprise; and the buyer held itself out as a continuation of the selling corporation. Turner v Bituminous Casualty Co, 397 Mich 406, 430; 244 NW2d 873 (1976).

In the instant case, there was a retention of store employees and general business operations. Also, the seller did cease operations after the sale to Leslie Drugs. On the opposite side of the ledger, though, the name Garrard Drugs was retained for only a very short period, plaintiff has not shown that defendant Leslie either expressly or impliedly assumed the liabilities of defendant Garrard, and defendant Leslie did not hold itself out as a continuation of defendant Garrard Drugs. Finally, and perhaps the most significant distinguishing factor of all, is that we are not dealing with corporate enterprises in this case.

Because of a corporation’s status as an artificial legal entity, it was possible for a corporation to avoid liability by altering its form while maintaining the business enterprise. The successor liability doctrine served to mitigate the effects of this practice. The sale of a sole proprietorship as here, on the other hand, does not involve a situation where the selling entity is immediately dissolved, or where the management and control have remained the same, with only the form of the business entity altered to avoid liability. Thus, there is no reason to impute successor liability upon defendant Leslie Drugs. In fact, we have found no Michigan case precedent wherein the successor liability doctrine was applied in a noncorporate situation as here. We find no reason for expanding the scope of application on the facts of this case.

Defendants Neil and Doris Dorfman purchased a drug store and operated it under the name of Leslie Drugs. Sixteen years prior to this purchase, the former owner of the store, a Richard Garrard, allegedly sold DES to plaintiff’s mother. The Dorfmans had no connection with plaintiff’s mother or knowledge of this alleged sale. Moreover, they had no connection with Richard Garrard either, other than the purchase of his store. The instant case is not one for the application of the successor liability doctrine.

We further find that summary judgment was proper under the other ground stated by the trial court. It appears, as a general rule, that druggists are not liable for correctly filling a prescription. See 25 Am Jur 2d, Liability of Druggists and Other Sellers, §§ 53-56, p 328. Therefore, defendant Leslie can hardly be held vicariously liable for an act for which defendant Garrard is not directly liable.

Affirmed.


source: Caselaw Access Project

author: G. E. Bowles, J.

license: Public Domain

text:
    JAMES v DIXON JAMES v WINDY RIDGE, INC
    Docket Nos. 44523, 44524.
    Submitted November 8, 1979, at Grand Rapids.
    Decided February 20, 1980.
    Plaintiffs decedent, Eugene James, was killed in an automobile accident when his car collided with one owned by defendant Robert Eppinger and driven by defendant Bradley Reid Dixon. Plaintiff, Joan James, commenced a wrongful death action against defendants Eppinger and Dixon in the Montmorency Circuit Court on behalf of herself and her minor child and as administratrix of decedent’s estate. She also commenced a separate action under the dramshop act against Windy Ridge, Inc., doing business as Ike’s Bar. The trial court, Joseph P. Swallow, J., denied plaintiffs motion made under the dead man’s statute to exclude testimony of Eppinger and Dixon concerning the cause of the accident and ordered the cases consolidated for trial. Plaintiff appeals by leave granted. Held:

    1. The dead man’s statute has been impliedly abrogated by the adoption of the rules of evidence.
    2. A court may consolidate several actions where they involve a substantial and controlling common question of law or fact. Whether consolidation is proper depends on the extent to which facts or legal theories inadmissible in separate actions are injected into an action due to consolidation. The necessity of arguing inconsistent theories of recovery is not the type of prejudice which will prevent consolidation where an instruction will eliminate the possibility of jury confusion.
    Affirmed.
    1. Witnesses ■— Capacity — Dead Man’s Statute — Court Rules.
    The dead man’s statute has been impliedly abrogated by the adoption of the rules of evidence (MCL 600.2166; MSA 27A.2166, MRE 601).
    References for Points in Headnotes
    [1] 73 Am Jur 2d, Statutes §§ 181, 185.
    81 Am Jur 2d, Witnesses §§ 303 - 305.
    [2] 1 Am Jur 2d, Actions § 156 et seq.

      2. Action — Consolidation of Actions.
    A court may consolidate several actions where they involve a substantial and controlling common question of law or fact; whether consolidation is proper depends on the extent to which facts or legal theories inadmissible in separate actions are injected into an action due to consolidation; the necessity of arguing inconsistent theories of recovery is not the type of prejudice which will prevent consolidation where an instruction will eliminate the possibility of jury confusion.

      Rensberry & Foster, P.C. (by Robert Kaufman), for plaintiff.

      Freel & Huck, P.C., and Yahne, Wenzel, White & Werth, for defendants.
    Before: V. J. Brennan, P.J., and Beasley and G. E. Bówles, JJ.

       Former circuit court judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

   G. E. Bowles, J.

On December 5, 1975, the vehicle operated by plaintiffs decedent collided head-on with an automobile owned by defendant Eppinger and driven by defendant Dixon. On November 6, 1976, plaintiff commenced a wrongful death action against Dixon, alleging that his negligence was the cause of the collision, and against Eppinger as owner of the vehicle. The defendants answered by denying negligence on their part and by affirmatively pleading that plaintiffs decedent’s gross or contributory negligence was the sole proximate cause of the accident. After discovering that a blood test had been performed upon plaintiffs decedent to determine the level of alcohol in his blood, defendants Dixon and Eppinger amended their answer alleging that at the time of the accident plaintiffs decedent was driving under the influence of alcohol.

On December 2, 1977, plaintiff filed a motion in limine to exclude any testimony by defendants Dixon and Eppinger concerning the cause of the accident. The basis of the motion was that the cause of the collision was a matter equally within the knowledge of plaintiff’s decedent so that the defendants’ testimony was barred by Michigan’s dead man’s statute. On June 8, 1977, the trial court denied plaintiff’s motion, stating that a factual situation might arise during trial in which the direct testimony of the defendants would be admissible despite the dead man’s statute.

On June 9, 1978, defendant Dixon moved to consolidate the wrongful death action with a dramshop action filed by plaintiff on November 27, 1977, against defendant Windy Ridge, Inc., d/b/a Ike’s Bar, arising out of the same fatal accident. Plaintiff opposed consolidation arguing that it would force her to elect between the wrongful death and dramshop actions, the merits of each of which she had a right to be heard by a jury. Additionally, plaintiff opposed the motion on the basis that consolidation would compel her to waive her right to exclude testimony as to matters equally within the knowledge of plaintiff’s decedent under the dead man’s statute.

On November 27, 1978, the trial court entered a new order replacing its June 8, 1977, order denying plaintiff’s motion to exclude Dixon’s and Eppinger’s testimony in the wrongful death action. The court found that the dead man’s statute had been "implicitly negated’.’ by MRE 601, and by the abolition of GCR 1963, 608.

Thereafter, defendant Dixon renewed his motion for consolidation. Dixon noted that, because of the November 27, 1978, order, plaintiff could no longer claim that consolidation of the wrongful death and dramshop actions would deny her the benefit of exercising a favorable evidentiary rule. On January 18, 1979, the trial court held that the wrongful death and dramshop actions involved substantial, controlling, and common issues of both fact and law and ordered their consolidation for trial. Plaintiff appeals from both the November 27th and January 18th orders by leave granted.

I

Plaintiff first argues that the trial court erred in holding that the dead man’s statute had been impliedly repealed by the effectuation of MRE 601 and by abolition of GCR 1963, 608. Since the Legislature has not specifically abrogated the statute, the issue is whether the Michigan Supreme Court has evidenced a clear intent to remove the incompetency imposed by the dead man’s act. It is settled that the courts have the power to formulate and alter matters involving judicial practice and procedure. This includes the power to adopt rules of evidence. Thus, if the dead man’s statute conflicts with MRE 601, the rule prevails over the statute. Perin v Peuler, 373 Mich 531, 541-542; 130 NW2d 4 (1964), People v Joker, 63 Mich App 421; 234 NW2d 550 (1975), lv den 395 Mich 779 (1975).

We begin our consideration of this issue by noting that the incompetency imposed by the dead man’s statute has been met with significant judicial dissatisfaction. Thus,, the incompetency itself has been narrowly construed while exceptions to the rule have been freely applied; Of course, judicial disaffection is not a reason sufficient, in and of itself, to declare an otherwise valid, statutorily imposed rule governing an aspect of court procedure a nullity. However, this general dissatisfaction does establish a climate in which it is entirely plausible that the Supreme Court in adopting MRE 601 intended to eliminate the effects of the dead man’s statute.

An examination of the history of the dead man’s statute and its interplay with court rule aids in the resolution of this issue. In 1967 the then-existing version of the dead man’s statute was repealed and a new version of the statute was enacted. Unlike its predecessor, this new version of the dead man’s statute provided that in an action against a person incapable of testifying, a party’s own testimony concerning matters equally within the knowledge of the person incapable of testifying could be admitted into evidence if supported by some other material evidence. GCR 1963, 608, was adopted to broaden the applicability of this corroboration exception to include actions brought by a person incapable of testifying. Contemporaneously with the adoption of the Michigan Rules of Evidence, the Michigan Supreme Court explicitly abolished GCR 1963, 608. A staff comment following the order abolishing GCR 1963, 608, indicates that the rule was rendered unnecessary by enactment of MRE 601, which generally eliminates incompetencies. While such staff comments are not authoritative constructions sanctioned by the Supreme Court, they are entitled to careful consideration. We are in accord with the committee staff that the most logical conclusion to be drawn from the Supreme Court’s abrogation of GCR 1963, 608, is that the Court believed MRE 601 eliminated the incompetency imposed by the dead man’s statute.

MRE 601 provides:

"Unless the court finds after questioning a person that he does not have sufficient physical or mental capacity or sense of obligation to testify truthfully and understandably, every person is competent to be a witness except as otherwise provided in these rules.”

No subsequent provision of the Michigan Rules of Evidence disqualifies a party from speaking to matters equally within the knowledge of a person incapable of testifying. It is apparent from the staff comments that the Supreme Court was aware of the dead man’s statute when considering adoption of the rules of evidence. It cannot be said, then, that the direct conflict between the language of MRE 601 and the dead man’s statute was due to inadvertence on the Court’s part. Consequently, we affirm the lower court ruling that the dead man’s statute has been impliedly abrogated by MRE 601.

II

Plaintiff also contends that the trial court erred in ordering consolidation of the wrongful death and dramshop actions. Plaintiff argues that if the cases are tried together, there is a substantial danger that the jurors might become confused and believe that her decedent’s intoxication is an affirmative defense which can be rightly asserted by all defendants.

The authority of the trial court to order the consolidation of two actions is derived from GCR 1963, 505.1, which provides:

"When actions involving a substantial and controlling common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.”

It is clear that the two cases at bar involve substantially the same factual issues as both relate to events transpiring on the night of the death of plaintiff’s decedent. In view of the fact that several of the same witnesses and much of the same testimony will be presented in both cases, consolidation of the two actions in one trial seems likely to save court time. However, the fact that time in court may be conserved is not alone sufficient reason to order consolidation. As the Michigan Supreme Court stated in Jackson v Trogan, 364 Mich 148, 158; 110 NW2d 612 (1961):

"By promoting the 'convenient administration of justice’ we do not mean expediting the work of the court, although that element may be given some consideration. More specifically, the phrase should be considered in connection with the possible effect of consolidation for trial on the actions involved in a given situation.”

In Jackson, the Court held that the trial court had erred in consolidating the auto negligence actions of five passenger-plaintiffs with a similar action by the driver, It was clear to the Court that the jury improperly attributed the contributory negligence of the intoxicated driver to the passenger-plaintiffs. See also, Felice v Weinman, 372 Mich 278, 281; 126 NW2d 107 (1964), Paratore v Furst, 15 Mich App 568; 167 NW2d 126 (1969), lv den 382 Mich 769 (1969).

Jackson and Paratore, supra, suggest that whether consolidation is proper depends on the extent to which facts or legal theories inadmissible in separate actions are injected into an action due to consolidation. With the adoption of comparative negligence by the Supreme Court, defendants in the wrongful death action would be able to assert plaintiffs decedent’s intoxication as a defense. Plaintiffs decedent’s contributory negligence is not a valid defense in the dramshop action. Genesee Merchants Bank & Trust Co v Bourrie, 375 Mich 383, 389-390; 134 NW2d 713 (1965). Moreover, in the dramshop action, plaintiff will have the burden of proving that defendant Windy Ridge, Inc., sold liquor to the decedent while he was visibly intoxicated. Therefore, it is evident that plaintiff will be thrust into the awkward position of arguing both that defendant Windy Ridge, Inc., sold the decedent liquor while he was visibly intoxicated and also that the decedent was not intoxicated or, at least, that his intoxication was not a cause of the collision. However, this is not the type of prejudice envisioned by the Court in Jackson or Paratore, supra. The only negligence which will possibly be attributed to plaintiff is that of her decedent. Indeed, one of the inherent attributes of relying on inconsistent theories of recovery arising out of one factual situation is that the truth will come out. Furthermore, we are persuaded that appropriate instructions would be sufficient to eliminate the possibility of jury confusion as regards the defense of contributory negligence. It would not be difficult for the trial court to inform the jury explicitly and clearly that plaintiffs decedent’s intoxication would be a defense possibly eliminating or reducing liability in the action against defendants Dixon and Eppinger, while it would not be a defense in the action against Windy Ridge, Inc. This case does not present the same potential for jury confusion as Jackson and Paratore, supra. We are convinced that the trial court did not abuse its discretion in ordering a consolidation of the wrongful death and dramshop actions for trial.

Affirmed. Costs to defendants.

       MCL 600.2166; MSA 27A.2166.

       See Noonan v Volek, 246 Mich 377, 381-382; 224 NW 657 (1929), Leitelt Iron Works v DeVries, 369 Mich 47, 52-55; 119 NW2d 101 (1963), and Skiff v Dickens, 38 Mich App 357; 361; 196 NW2d 481 (1972), lv den 388 Mich 793 (1972), as examples of the type of strict construction applied when considering testimonial incompetencies under the dead man’s statute. See Hilliker v Dowell, 54 Mich App 249; 220 NW2d 712 (1974), for an example of the minimal corroboration required to avoid the consequences of the dead man’s statute.

       Section 2160 of Act No. 236 of the Public Acts of 1961, being Section 600.2160 of the Compiled Laws of 1948, was repealed and Section 600.2166 was enacted in its place.

       402 Mich cxxxiii.

        Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979).


author: Per Curiam.

text:
    PEOPLE v McLEMORE
    Docket Nos. 77-4827, 78-41, 78-115,
    Submitted June 5, 1979, at Detroit.
    Decided February 21, 1980.
    Defendant, Harold McLemore, was convicted in Federal court in 1969 of armed bank robbery and sentenced to serve a prison term in a Federal prison. After serving slightly more than half of the sentence the defendant was scheduled for parole and was transferred to the Community Treatment Center in Detroit in 1975 or 1976 to prepare him for his release. After his transfer to Detroit, but before the completion of his period of residence at the Center and before the effective date of his parole, he walked away from the Center and allegedly committed the acts that led to his arrest. He was arrested in Detroit on July 28, 1976, by agents of the Federal Bureau of Investigation on Federal charges and was simultaneously arrested by local authorities on a state charge of carrying a concealed weapon, He was turned over to the Detroit Police for an investigation which resulted in charges of three counts of first-degree murder and one count of assault with intent to commit murder. The defendant had previously been charged with a separate count of carrying a concealed weapon. On August 1, 1976, the defendant was returned to Federal custody and wag field as a marshal’s prisoner in the Detention Unit of the Federal Correctional Institution at Milan, Michigan. The defendant was then transferred between Milan and the Wayne County Jail on several occasions for proceedings applicable to the state charges pursuant to writs of habeas corpus ad prosequendum issued by judges of Detroit Recorder’s Court. In the fall of 1976, trial on the two concealed weapons charges was postponed pending disposition of the murder and assault charges. The record indicates that if defendant was found guilty on the murder and assault charges, the concealed weapons charges would be dropped. Before trial could be had on any of the charges, the defendant moved for dismissal of the charges for the prosecution’s failure to comply with the 120-day rule of the Interstate Agreement on Detainers. The motions were granted between March and August of 1977 in Recorder’s Court of Detroit, Samuel Gardner and George W, Crockett III, JJ. The prosecution appeals by leave granted, alleging that the Interstate Agreement on Detainers is inapplicable to the instant case. The cases were consolidated on appeal. Held:

      References for Points in Headnotes
    [1, 8] 31 Am Jur 2d, Extradition §§3-5.
    Validity, construction, and application of Interstate Agreement on Detainers. 98 ALR3d 160.
    [2] 31 Am Jur 2d, Extradition § 14 et seq.

    [3] 31 Am Jur 2d, Extradition § 20.
    [4-7] 39 Am Jur 2d, Habeas Corpus § 2-

      1. The prosecution focuses on the fact that no detainer was ever lodged against the defendant, but that he was transferred to Detroit from the Federal facility in Milan pursuant to writs of habeas corpus ad prosequendum. However, the use of the ad prosequendum writ results in the same disruption of a prisoner’s rehabilitation programs that the Agreement on Detainers was designed to prevent. For purposes of the Agreement a writ of habeas corpus ad prosequendum is the equivalent of a detainer. Since the state writ of habeas corpus ad prosequendum is effective in another jurisdiction only because of the Agreement, a state should not be allowed to avoid the Agreement through the use of the writ.
    2. The writ of habeas corpus ad prosequendum is not expressly authorized in Michigan by any statute or court rule, but neither is it prohibited. Thus the judges of Detroit Recorder’s Court have the authority to issue the writ. Such a writ, however, can only be effectively utilized if it extends to "any prisoner who is detained in any jail or prison within this State",
    3. Despite the fact that the state ad prosequendum writs issued in this case were of independent effect and not obeyed solely because of the existence of the Agreement, the Agreement applies to this case. The Agreement provides the exclusive means by which a state jurisdiction may obtain the prisoner of another jurisdiction for trial. Thus, if the defendant was detained as a marshal’s prisoner for over a year solely so that he might be shuttled back and forth between Detroit and Milan for proceedings relevant to pending state charges, he will have been denied re-entry into the program of rehabilitation he would have been afforded through return to the general prison population and the jurisdiction of the Federal Bureau of Prisons. If he was held in this manner for more than the statutorily allowed 120 days, the evils which the agreement seeks to eliminate will have occurred and the trial courts will have been correct in dismissing the charges under the authority of the Agreement.
    4. As to the first of the two concealed weapons charges, dismissal was improper. A pre-trial conference was held on November 4, 1976, after an earlier adjournment. At that time, trial on this charge was adjourned until the murder and assault charges could be resolved. The record reflects that if the defendant was found guilty of the murder and assault charges, all concealed weapons charges would most likely be dropped. The record also reflects that the defendant’s counsel was present at the conference and that he agreed to the adjournment. This adjournment was a necessary or reasonable continuance that tolled the running of the 120-day period, established by the Agreement, for bringing the defendant to trial on that charge. At that time only 97 of the 120 days had elapsed.
    5. On the second concealed weapons charge, a remand is necessary for further findings of fact. It is clear that the time periods specified in the relevant portions of the Agreement do not begin to run until the defendant is brought to the receiving jurisdiction pursuant to a request by the prosecution. If after an evidentiary hearing it appears that the defendant was not transferred to Detroit Recorder’s Court pursuant to process triggering the running of the applicable time periods of the Agreement before November 4, 1976, the order of March 11, 1977, dismissing this charge shall be reversed. If, on the other hand, it does appear that the defendant was produced in the trial court pursuant to a detainer or a writ of habeas corpus directed to Federal authorities prior to November 4, 1976, then the trial court shall determine whether a period of 120 days elapsed between such production and November 4, 1976, with allowance made for any necessary or reasonable continuances granted in the presence of the defendant or his counsel. If the trial court finds that 120 days did not expire in this period, the order of March 11, 1977, shall be deemed improper. If 120 days did expire in this period, the order shall be deemed affirmed. The period of time between November 4, 1976, and March 11, 1977, is construed as a reasonable continuance, as with the other concealed weapons charge, and is excused under the Agreement.
    6. The defendant first appeared in Recorder’s Court on the first-degree murder and assault charges on August 6, 1976, when he was arraigned. At the time he was in Federal custody. A preliminary examination was held on August 16, 1976, and the defendant was bound over for trial. It appears that in the early stages of the investigation the defendant was offered immunity from prosecution in exchange for his testimony against his codefendants. This bargain was later revoked. The 120-day period of the Agreement was tolled during the time that the parties assumed no prosecution would take place under a grant of immunity. However, the record does not indicate exactly when any such periods existed. As a result, this matter is remanded to the trial court for findings of fact to determine if and for how long at any point after defendant’s arraignment on August 6, 1976, the running of the 120-day period was tolled by the reasonable assumptions that the defendant would not be tried due to a grant of immunity. The stay of proceedings ordered by the trial court pending appeal of a suppression order was a reasonable continuance excusing the time period between January 19, 1977, and April 4, 1977, the day the Court of Appeals denied leave. Excluding these periods, the trial court shall determine if more than 120 days of unexcused delay expired between August 6, 1976, and June 23, 1977, the date of the defendant’s motion to dismiss.-
    7. The defendant’s return to the Federal facility at Milan after attendance at proceedings in Recorder’s Court was not a return to the 'original place of imprisonment’ since the Agreement specifically allows a Federal prisoner to appear in state court while remaining in Federal custody, and since the defendant did not have any rehabilitative programs to be interrupted while at Milan. Thus, the motivating policies behind another portion of the Agreement were not violated in this case.
    8. The defendant’s claims of a denial of his right to a speedy trial were not resolved in the trial court. The defendant may raise his speedy trial claims when the prosecutions are reinstated.
    Reversed in part and remanded.
    1. Criminal Law — Interstate Agreement on Detainers — Federal Prisoners — State Trial — Statutes.
    Physical custody of a prisoner does not have to change hands for the Interstate Agreement on Detainers to be applicable when a Federal prisoner is involved; the agreement specifically provides that a Federal prisoner may be brought to the place of the state trial while remaining in Federal custody (MCL 780.601; MSA 4.147[1]).
    2. Criminal Law — Interstate Agreement on Detainers — Statutes.
    The Interstate Agreement on Detainers does not apply unless a prisoner is actually serving a term of imprisonment (MCL 780.601 et seq.; MSA 4.147[1] et seq.).

    3. Criminal Law — Federal Prisoners — Statutes.
    A Federal prisoner, even if paroled, remains in the legal custody of the United States Attorney General until the expiration of the prisoner’s term of imprisonment (18 USC 4210[a]).
    4. Habeas Corpus — Habeas Corpus Ad Prosequendum — Interstate Agreement on Detainers — Statutes.
    A writ of habeas corpus ad prosequendum issued by a state court is the equivalent of a detainer for the purpose of the Interstate Agreement on Detainers (MCL 780.601 et seq.; MSA 4.147[1] et seq.).

    5. Habeas Corpus — Habeas Corpus Ad Testificandum — Court Rules.
    Michigan statutes and court rules refer to only two varieties of habeas corpus writs; a writ to inquire into the cause of detention (the traditional writ) and a writ to produce a prisoner detained in this state to be examined as a witness (habeas corpus ad testificandum); each writ differs as to the scope of its jurisdiction (GCR 1963, 712, 713).
    6. Habeas Corpus — Habeas Corpus Ad Prosequendum — Courts — Constitutional Law — Statutes.
    The writ of habeas corpus ad prosequendum is not expressly authorized in Michigan by any statute or court rule, but neither is it prohibited; circuit court and Detroit Recorder’s Court judges have the authority to issue the ad prosequendum writ (Const 1963, art 6, § 13, MCL 600.601; MSA 27A.601).
    7. Habeas Corpus — Habeas Corpus Ad Prosequendum — Court Rules.
    A writ of habeas corpus ad prosequendum can only be effectively utilized if it extends to "any prisoner who is detained in any jail or prison within this state” (GCR 1963, 713.1[2][a]).
    8. Criminal Law — Interstate Agreement on Detainers.
    The Interstate Agreement on Detainers is the exclusive means by which a state court in Michigan may obtain a prisoner of another jurisdiction for trial.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Timothy C. Scallen, Assistant Prosecuting Attorney, for the people.

      Norman R. Robiner, for defendant in No. 77-4827, Sheldon Halpern (Eileen R. Scheff, of counsel), in No. 78-41, and Rolf E. Berg, Assistant State Appellate Defender, in No. 78-115.
    Before: R. M. Maher, P.J., and Bronson and A. E. Moore, JJ.

       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

   Per Curiam.

I.

The prosecution appeals by leave granted from three separate orders dismissing various criminal charges then pending against the defendant. In the cases with docket numbers 78-41 and 78-115, defendant was charged with carrying a concealed weapon (CCW), MCL 750.227; MSA 28.424, and in the case with docket number 77-4827 he was charged with three counts of first-degree murder, MCL 750.316; MSA 28.548, and one count of assault with intent to commit murder, MCL 750.83; MSA 28.278. All charges were dismissed with prejudice, mainly for failure to comply with the 120-day rule of Article IV(c) of the Interstate Agreement on Detainers, MCL 780.601 et seq.; MSA 4.147(1) et seq. (hereinafter Agreement). Alternative arguments are, however, advanced by defendant to support the trial courts’ dismissals, including general speedy-trial requirements, and violation of Article IV(e) of the Agreement, which requires trial before return to the original place of imprisonment.

This appeal presents complex legal questions concerning the Agreement, and an equally complex factual setting. Defendant was convicted in Federal court in late 1969 of armed bank robbery, sentenced in July of 1970 to a prison term of ten years, and began serving his sentence at the Federal Correctional Institution at Terre Haute, Indiana. After serving slightly more than half of this sentence, he was scheduled for parole and transferred to the Community Treatment Center in Detroit sometime in 1975 or 1976 to prepare him for release. At some point after his return to Detroit, but before the completion of his period of residence at the Center and before the effective date of his parole, he walked away from the Center and undertook the acts that led to his arrest, and ultimately to this appeal. He was arrested in Detroit on July 28, 1976, by agents of the Federal Bureau of Investigation on Federal charges and was simultaneously arrested by local authorities on the state CCW charge (docket number 78-41). He was turned over to the Detroit Police for an investigation that evolved into the murder and assault charges (docket number 77-4827). On August 1, 1976, he was returned to Federal custody and held as a marshal’s prisoner in the Detention Unit of the Federal Correctional Institution at Milan, Michigan. He was then transferred between Milan and the Wayne County Jail on several occasions for proceedings relevant to the state charges pursuant to writs of habeas corpus ad prosequendum issued by judges of Detroit Recorder’s Court. Although defendant’s Federal parole had been retarded on April 26, 1976, no further action was taken by Federal authorities to formally revoke his parole or indict him for escape until August of 1977, after all state charges had been dismissed and defendant returned to the. general prison population at Terre Haute. It is not necessary at this stage to relate all the details of the state proceedings between August of 1976 and August of 1977. It does appear, however, that in the fall of 1976, trial on the two CCW charges was postponed pending disposition of the murder and assault charges. The record reflects that if defendant was found guilty on the murder and assault charges, the CCW charges would be dropped. The record also alludes to another agreement whereby defendant would testify against others in the murder trial, in exchange for immunity. This second agreement was proposed at an earlier stage in the proceedings, and apparently fell through. It is also seemingly unrelated to the postponement of the CCW charges. Before the trial could be had on any of the charges, defendant moved for dismissal and the motions were granted between March and August of 1977.

II.

The Interstate Agreement on Detainers evolved as a solution to the adverse effects produced by the lodging of detainers against prisoners based on untried indictments, complaints and informations. It was apparent to many involved in the administration of criminal justice that when a detainer was lodged by one jurisdiction against a prisoner in another jurisdiction, rehabilitative programs suffered through the anxiety and uncertainty experienced by the prisoner and through the denial of access to various prison programs and other privileges such as good-time and parole. These results often flowed automatically from the lodging of a detainer, despite the fact that a large percentage of detainers were never acted on by the issuing jurisdiction. The abuses to which detainers were subject are described by the United States Supreme Court in United States v Mauro, 436 US 340; 98 S Ct 1834; 56 L Ed 2d 329 (1978). See also, United States ex rel Esola v Groomes, 520 F2d 830 (CA 3, 1975).

In an attempt to remedy these abuses and aid rehabilitative programs, formal efforts began in 1948 to develop a means by which one jurisdiction could expeditiously transfer prisoners to another for resolution of pending charges. To be effective, the agreement had to be national in scope and had to avoid the often cumbersome proceedings associated with formal extradition. These efforts produced a draft of the Agreement issued under the auspices of the Council of State Governments, and in 1956 the draft was approved and included in the Council’s Suggested State Legislation Program for 1957. A majority of the jurisdictions in this country now have enacted the Agreement, including Michigan and the United States.

The background of the Agreement is reflected in its first article, which states:

"The party states find that charges outstanding against a prisoner, detainers based on untried indictments, informations or complaints, and difficulties in securing speedy trial of persons already incarcerated in other jurisdictions, produce uncertainties which obstruct programs of prisoner treatment and rehabilitation. Accordingly, it is the policy of the party states and the purpose of this agreement to encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, informations or complaints. The party states also find that proceedings with reference to such charges and detainers, when emanating from another jurisdiction, cannot properly be had in the absence of co-operative procedures. It is the further purpose of this agreement to provide such co-operative procedures.”

Article III of the Agreement provides a method by which a prisoner against whom a detainer has been lodged is given notice of the detainer and allowed to request final disposition of the pending charges. After the prisoner complies with the appropriate notice requirements, trial must be had within 180 days. Article IV provides the means by which a jurisdiction that has untried charges against the prisoner of another jurisdiction can secure the attendance of the prisoner for trial. Under Article IV trial must be had within 120 days of the arrival of the prisoner and before the return of the prisoner to the original place of imprisonment. Articles III and IV both provide for the tolling of the time periods by the grant of reasonable continuances in open court and in the presence of defendant or counsel.

III.

On appeal, the prosecution strongly argues that the Agreement is not applicable to the instant case. Several reasons are advanced in support of this conclusion. The argument that the Agreement does not apply because no change of custody actually took place is without merit. The record reflects that on several occasions defendant was lodged in the Wayne County Jail. In any event, physical custody does not have to change hands when a Federal prisoner is involved. Article V(a) specifically provides that a Federal prisoner may be brought to the place of trial while remaining in Federal custody. The prosecution’s alternative argument, that the Agreement is inapplicable because the defendant was merely awaiting trial and not serving a sentence, must also fail. It is clear that a prisoner who is in custody solely pending prosecution on criminal charges does not yet have a program of rehabilitation to be disrupted. Consistent with its purposes, the Agreement does not apply unless the prisoner is actually serving a term of imprisonment. United States v Roberts, 548 F2d 665, 669-671 (CA 6, 1977). While the defendant’s incarceration at Milan was related to pending Federal charges, he was still under a sentence for the 1969 armed bank robbery conviction that will not expire until the middle of 1980. Even if paroled, a Federal prisoner remains in the legal custody of the United States Attorney General until the expiration of his term. 18 USC 4210(a). In the instant case, after dismissal of pending state charges, the defendant was returned to Terre Haute for action on his parole. It appears that he remains in Terre Haute serving the remainder of his Federal sentence. Accordingly, the defendant remained at all times relevant to these proceedings under a prison sentence.

The prosecution’s most forceful argument concerning the inapplicability of the Agreement focuses on the fact that no detainer was ever lodged against the defendant. Instead, he was transferred to Detroit from Milan pursuant to writs of habeas corpus ad prosequendum issued by Detroit Recorder’s Court judges. Several courts have recognized that allowing the prosecution to use the ad prosequendum writ instead of a detainer would result in the same disruption of rehabilitative programs that the Agreement was designed to prevent. This Court has adopted this logic, and held that a writ of habeas corpus ad prosequendum is the equivalent of a detainer for the purposes of the Agreement. People v Beamon, 83 Mich App 121, 132; 268 NW2d 310 (1978), lv den 403 Mich 850 (1978).

This same issue resulted in a split amongst the Federal Circuit Courts of Appeal that has only recently been resolved by the United States Supreme Court. In United States v Mauro, 436 US 340; 98 S Ct 1834; 56 L Ed 2d 329 (1978), the Court held that a Federal writ of habeas corpus ad prosequendum is not the equivalent of a detainer for the purposes of the Agreement. In reaching its decision, the Court noted that the primary problem presented by the use of detainers was the fact that they remained lodged against a defendant for a long period of time without the necessity of any action being taken. Since the Federal writ is executed immediately, the Court was of the opinion that these problems were not presented through use of the writ. The Court additionally noted that express statutory authorization exists for the Federal writ, and that due to its long history, dating back to the First Judiciary Act, Congress could be presumed to have been familiar with the writ when enacting the Agreement. Because the writ was not seen as presenting the same problems as a detainer, the Court concluded that use of the writ did not amount to government circumvention of the Agreement.

Critical to the Court’s holding in Mauro was the nature of the Federal ad prosequendum writ. Unlike a state writ of habeas corpus ad prosequendum, which has effect only within the jurisdiction of the issuing court, the Federal writ is effective nation-wide and allows the Federal government to obtain prisoners from every state. Accordingly, Mauro does not require a change in this Court’s interpretation of the Agreement as expressed in Beamon. A state ad prosequendum writ, directed outside the jurisdiction of the issuing court, need not be honored. The Agreement, however, provides the party states with an effective method of receiving custody, so that there is no point in another jurisdiction refusing to obey a state writ of habeas corpus ad prosequendum. The state could simply come back with the identical or a substantially similar document labeled as a detainer and get custody of the prisoner. The only reason for another jurisdiction to obey a state ad prosequendum writ is that the writ is backed up by the other jurisdiction’s obligations under the Agreement. See United States ex rel Esola v Groomes, 520 F2d 830 (CA 3, 1975), Gray v Benson, 443 F Supp 1284, 1288-1289 (D Kan, 1978). Because the state writ is effective only on account of the Agreement, a state should not be allowed to avoid the Agreement through the use of the writ.

IV.

In reaching a decision in the instant case, we must take the analysis one step further. The writs issued in this case were directed to the United States Marshal at Milan, Michigan, and concerned a prisoner held at that place. It is thus arguable

that the writs were issued within the jurisdiction of the issuing Court, and as such were required to be obeyed, obviating the argument that they should be considered detainers because they were honored solely on account of the Agreement.

Unlike the Federal statute, the Michigan statutes and court rules refer to only two varieties of habeas corpus writs; a writ to inquire into the cause of detention (the traditional writ) and a writ to produce a prisoner detained in this state to be examined as a witness (habeas corpus ad testificandum). Each writ differs as to the scope of its jurisdiction. By virtue of sub-rule GCR 1963, 712.1(1), a writ of habeas corpus to inquire into the cause of detention is brought in the Detroit Recorder’s Court when the prisoner is detained in the City of Detroit. An ad testificandum writ, on the other hand, may be issued by any court of record directing the production of "any prisoner who is detained in any jail or prison within this state”. GCR 1963, 713.1(2)(a).

The writ of habeas corpus ad prosequendum is not expressly authorized in Michigan by any statute or court rule, but neither is it prohibited. We accordingly concede that the judges of the Detroit Recorder’s Court have the authority to issue the ad prosequendum writ. Rather than specifically delineating the scope of jurisdiction granted to courts of record, the Michigan Constitution and provisions of the Revised Judicature Act confer a broad jurisdiction, subject only to exceptions provided in the Constitution, statutes, and court rules. Const 1963, art 6, § 13 provides in part: "The circuit court shall have original jurisdiction in all matters not prohibited by law; * * * power to issue, hear and determine prerogative and remedial writs * * *.” Similarly, MCL 600.601; MSA 27A.601 states:

"Circuit courts have the power and jurisdiction (1) possessed by courts of record at the common law, as altered by the constitution and laws of this state and the rules of the supreme court, and (2) possessed by courts and judges in chancery in England on March 1, 1847, as altered by the constitution and laws of this state and the rules of the supreme court, and (3) prescribed by rule of the supreme court.”

Granting that the authority existed for the issuance of the writs in the instant case, we would also hold that the writs were effective when directed to the United States Marshal at Milan concerning a Federal prisoner detained there. The ad prosequendum writ is more like the ad testificandum writ than the general habeas corpus writ to inquire into the cause of detention. It can only be effectively utilized if it extends to "any prisoner who is detained in any jail or prison within this state”. See GCR 1963, 713.1(2)(a).

V.

Despite the fact that we find the state ad prosequendum writs issued in this case were of independent effect and not obeyed solely because of the existence of the Agreement, we hold the Agreement applies to this case. Unlike the situation in Mauro, the Michigan writ of habeas corpus ad prosequendum is not expressly mentioned in any of the statutes or court rules so that we cannot assume, as did the United States Supreme Court, that the Legislature was aware of the writ as an alternative means of securing for trial Federal prisoners held within this state. Additionally, while the Court in Mauro primarily grounded its decision on the assumption that since Federal habeas corpus ad prosequendum writs are immediately executed they avoid the problems the Agreement sought to relieve, we do not as easily reach this conclusion. The state writ, as is the Federal writ, is executed immediately. In this manner, some of the concerns that resulted in the Agreement are not present when the writ is used in place of a detainer. For example, some action will be taken immediately on the writ, while the detainer could, before the Agreement, remain lodged against a defendant without the necessity of any action ever taking place. The Agreement does, however, express a more general legislative concern about the adverse effects of pending charges in another jurisdiction on a prisoner’s rehabilitative program. To this end, the Agreement provides a means by which the prisoner can initiate proceedings to dispose of untried charges, but it also provides that when the jurisdiction itself moves to resolve the untried charges, it must do so within a specified period of time so that the prisoner’s existing program of rehabilitation is not unduly interrupted. These concerns are amply demonstrated by the instant case. It is apparent from the record that the defendant was held as a marshal’s prisoner at Milan for over a year solely so that he might be shuttled back and forth between Detroit and Milan for proceedings relevant to pending state charges. He was not returned to Terre Haute until the last of the state charges were dismissed, and no action was taken by Federal authorities on his Federal parole or his pending Federal charges until the dismissal of the state charges. If no state charges were ever lodged against the defendant, it appears to us that he would have been returned to the general prison population at Terre Haute and action taken by Federal authorities at a much earlier date. By holding the defendant as a marshal’s prisoner in Milan, and transferring him back and forth pursuant to ad prosequendum writs, he was denied re-entry into the program of rehabilitation he would have been afforded through return to the general prison population and the jurisdiction of the Federal Bureau of Prisons. We suspect that it is this sort of reasoning that has led some courts to conclude that the Agreement provides the exclusive means by which a jurisdiction may obtain the prisoner of another jurisdiction for trial. United States ex rel Esola v Groomes, supra, Gray v Benson, supra, 1288, and cases cited therein. While the exclusive means rationale can no longer be considered viable in light of Mauro when the Federal government is seeking production of a state prisoner, it continues to remain persuasive when a state is seeking production. See Gray v Benson, supra, 1288. If, then, the defendant was detained in this manner for more than the statutorily allowed 120 days, the evils which the Agreement seeks to eliminate will have occurred, and the trial judges will have been correct in dismissing the charges under the authority of the Agreement.

VI.

Having reached the conclusion that the Agreement applies, we must next determine if its provisions were violated. Article IV(c) of the Agreement provides:

"In respect of any proceeding made possible by this Article, trial shall be commenced within one hundred twenty days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.”

We will analyze the facts of each of the three cases in turn to determine if the Agreement was violated.

A. 78-41

The defendant first appeared in Recorder’s Court on the CCW charge contained in docket number 78-41 (lower court docket number 76-05790) on July 30, 1976, when he was arraigned on the warrant. Defendant was at this time in the custody of Federal authorities. On August 6, 1976, he waived examination, was bound over for trial, and arraigned on the information. A pre-trial conference was held on August 13, 1976, at which the prosecution requested adjournment of the matter pending resolution of the murder and assault charges against the defendant. A second pre-trial conference was set for October 26, 1976, but adjourned. The second conference was ultimately held on November 4, 1976, and after conducting a hearing on the matter the trial court adjourned the trial until the murder and assault charges could be resolved. The record reflects that if the defendant were found guilty of the murder and assault charges, all CCW charges pending against the defendant would most likely be dismissed. The record also reflects that defendant’s counsel was present at the November 4 conference and that he agreed to the adjournment. We construe this adjournment as a necessary or reasonable continuance that tolled the running of the i20-day period. At the time of the adjournment, 97 days had elapsed since July 30, 1976, the date on which the defendant first appeared (in Federal custody) before the trial court on this matter.

The pending murder and assault charges were not resolved until after the CCW charges were dismissed. As a result, the 120-day period never began to run again. Because at the time of dismissal only 97 days of unexcused delay had passed, we hold the trial court erred in dismissing the CCW charges against the defendant contained in docket number 78-41.

B. 78-115

The record in docket number 78-115 (lower court docket number 75-08415) shows that the defendant was arrested, charged with CCW, and arraigned on the warrant on November 2, 1975. He waived examination, was bound over, and arraigned on the information on November 17, 1975. A pre-trial conference was held on November 24, 1975, and, on November 26 of the same year, trial was set for January 15, 1976. Nothing else appears in the record until November 10, 1976, when a new trial date was set for January 19, 1977.

This case must be remanded to the trial court for further fact-finding. It is clear that the time periods specified in Article IV of the Agreement do not begin to run until the defendant is brought to the receiving jurisdiction pursuant to a request by the prosecution. It does not appear that the defendant was brought to Recorder’s Court from Federal authorities until November 4, 1976, for a pretrial conference. If this was indeed the first time defendant was brought before the trial court pursuant to a request that triggers Article IV, then the same analysis would apply as in docket number 78-41 and the trial court would have been in error in dismissing the charges. As we have noted above, however, defendant’s status as a Federal prisoner between November 2, 1975, the date of his arrest on the CCW charge in docket number 78-115, and July 28, 1976, the date of his arrest in Detroit by FBI agents, is in doubt. The trial court is instructed to conduct an evidentiary hearing on this matter. If after a hearing it appears that the defendant was not transferred to Detroit Recorder’s Court pursuant to process triggering Article IV of the Agreement before November 4, 1976, the trial court’s order of March 11, 1977, dismissing the charge contained in our docket number 78-115 shall be deemed reversed. If, on the other hand, it does appear that the defendant was produced in the trial court pursuant to a detainer or a writ of habeas corpus directed to Federal authorities prior to November 4, 1976, then the trial court shall determine whether a period of 120 days elapsed between such production and November 4, 1976, with allowance made for any necessary or reasonable continuances granted in the presence of defendant or his counsel. If the trial court finds that 120 days did not expire in this period, the order of March 11, 1977, shall also be deemed reversed. If 120 days did expire in this period, the order shall be deemed affirmed. As in our analysis of docket number 78-41, we construe the period of time between November 4, 1976, and March 11, 1977, as a reasonable continuance and, as such, excused under Article IV(c).

C. 77-4827

The defendant first appeared in Recorder’s Court on the charges contained in docket number 77-4827 (lower court docket number 76-05898) on August 6, 1976, when he was arraigned on the warrant. Defendant was at this time in Federal custody. Preliminary examination was held August 16, 1976, and defendant was bound over for trial. It appears that at some point in the investigation of this case, most likely during the early investigatory stages, defendant was offered immunity from prosecution in exchange for his testimony against his codefendants. It also appears that at some stage of the proceedings this bargain was revoked. Any running of the periods specified in Article IV of the Agreement would necessarily be tolled during that time when the parties assumed no prosecution would take place under a grant of immunity. We are unable to determine, on the record before us, exactly when any such periods existed. We particularly note that the record does not contain a transcript of the hearing held July 12, 1977, at which defendant’s motion to dismiss was granted. As a result, this matter is remanded to the trial court for findings of fact to determine if and for how long at any point after defendant’s arraignment on August 6, 1976, the running of the 120-day period was tolled by the parties’ reasonable assumptions that the defendant would not be tried due to a grant of immunity. We construe the stay of proceedings ordered by the trial court pending appeal of the suppression order as a reasonable continuance excusing the time period between January 19, 1977, and April 4, 1977, the date this Court denied leave. Excluding these periods, the trial court shall determine if more than 120 days of unexcused delay expired between August 6, 1976, and June 23, 1977, the date of the defendant’s motion to dismiss. If the trial court finds that 120 days did elapse during this time, the order granting defendant’s motion to dismiss will be deemed affirmed. If less than 120 days of such unexcused delay passed, the order of the trial court shall be deemed reversed.

We note that this case presents a somewhat different situation than do the two CCW cases. In those cases, specific adjournments were granted pending the outcome of this case, apparently on the assumption that they would not continue should defendant be found guilty of the murder and assault charges. In this case, no such adjournment was granted, so that the 120-day period ran from the August 6, 1976, inception of the case until the June 23, 1977, motion to dismiss, with allowance for the necessary and reasonable continuances noted above.

VII.

We have concentrated on Article IV(c) of the Agreement because we do not believe that Article IV(e) is applicable to this case. Article IV(e) requires dismissal when trial is not had before the prisoner’s return to the "original place of imprisonment”. In the circumstances of this case, defendant’s argument is that when he was returned to Milan after his attendance at proceedings in Detroit, he was returned to the "original place of imprisonment”.

We disagree. First, we note that Article V(a) of the Agreement allows a Federal prisoner to be brought to a state court for trial while remaining in Federal custody. It would be illogical to assume that this would be an allowable practice if a prisoner’s nightly return to any Federal facility amounted to a return to the "original place of imprisonment”. Secondly, however, and more importantly, we interpret Article IV(e) as primarily concerned with the interruption of ongoing rehabilitation programs that a continued shuttling between a facility offering such programs and a facility that did not would represent. See People v Estelle, 93 Mich App 449; 287 NW2d 262 (1979). As a marshal’s prisoner at Milan, the defendant was held in a jail-type situation. He was segregated from the general prison population and was not under the jurisdiction of the Bureau of Prisons. As a result, defendant was not engaged in any on-going rehabilitative program-. Despite the fact that defendant apparently spent some time in the Wayne County Jail on at least two occasions, his temporary absence from, and subsequent return to, the marshal’s detention area at Milan had no effect on defendant’s ability to participate in rehabilitative programs. We will not reach out to find a violation of Article IV(e) where the motivating policies of that article have not been violated.

VIII.

On appeal, defendant also raises issues involving his constitutional and statutory rights to a speedy trial. See People v Hill, 402 Mich 272, 282-283; 262 NW2d 641 (1978), MCL 768.1; MSA 28.1024. Our review of the records does not indicate that these claims have been resolved in the trial court. If the prosecution reinstitutes proceedings against the defendant in docket number 78-41, defendant may raise his speedy-trial claims at that time. Similarly, on remand in docket numbers 78-115 and 77-4827 defendant may raise the issue in the trial court if he is ultimately unsuccessful of his claims under the Interstate Agreement on Detainers.

IX,

Docket number 78-41 is reversed. Docket numbers 78-115 and 77-4827 are remanded to the trial court for further proceedings as outlined in this opinion. We do not retain jurisdiction.

Reversed in part and remanded.

       Dismissal in docket number 78-41 was alternatively based on violation of the 180-day rule of MCL 780.131; MSA 28.969(1). On appeal, both parties concede that reliance on this statute was misplaced. The prosecution argues this is so because defendant was at all times a Federal prisoner. The defendant does not concede this specific point, and argues instead that the statute is inapplicable because he was not incarcerated in a Michigan penal institution pursuant to a state conviction. In any event, we agree that MCL 780.131; MSA 28.969(1) is not applicable to the instant case.

       Defendant was later recaptured and charged with escape by Federal authorities. The escape charge was eventually dismissed for Federal inaction. United States v McLemore, 447 F Supp 1229 (ED Mich, 1978). The Federal District Court’s opinion in that case indicates that defendant was transferred from Terre Haute to the Community Treatment Center in Detroit during March of 1976, pending a July 8, 1976, release date, but that he walked away from the Center on April 7, 1976. This presents some confusion, since the record before us indicates defendant was arrested on the other CCW charge (docket number 78-115) on November 2, 1975, at a time when defendant was presumably still in Terre Haute, and more than five months before his alleged escape from the Center.

       Defendant was charged with escape from a Federal penal facility, 18 USC 751, and with the illegal possession of a firearm, 18 USC (Appendix) 1202(a)(1).

       The status of a marshal’s prisoner was described by Judge Philip Pratt of the United States District Court for the Eastern District of Michigan in United States v McLemore, supra, 1231, fn 3:
      " 'Marshal’s prisoners’ are segregated from the general prison population. Prisoners are generally committed to the custody of the United States Marshal for a limited and particular purpose, as, for instance, to await trial or to participate in a legal proceeding in some other capacity. Since no other 'jail’ facilities are available to the Marshal in this District, a section of the Milan FCI (the nearest available federal facility) has been utilized by him under an agreement with the Bureau of Prisons. What results is that in this District, Marshal’s prisoners, although lodged at a federal correctional institution, are not in the custody of the Bureau of Prisons.” The opinion further states, at 1232:
      "Marshal’s prisoners are designated as such and, as such, they are either denied all access to various facilities, equipment, counseling services, and educational, recreational and other developmental programs, or they are afforded far more restricted opportunity to avail themselves of those facilities, services and programs than are the members of the general prison population. In brief, incarceration at the Detention Unit should not be confused with the usual beneficial incidents of regular inmate status one associates with a federal correctional institution. Under the control of the Marshal, defendant was confined in a jail-type environment.”

       Defendant was indicted on the Federal charges on August 5, 1977, and arraigned on September 7, 1977. He was returned to Terre Haute on August 12, 1977, and brought before a panel of the United States Parole Commission on August 24. The panel announced its decision on September 19, 1977.

       Defendant contends that the prosecution was responsible for the collapse of the agreement, by formally charging him with murder after promising him immunity. The prosecution charges defendant revoked the agreement when he failed to comply with the requirement that he undergo a polygraph examination and when he moved to suppress a confession involving the murder case.

       MCL 780.601 et seq.; MSA 4.147(1) et seq., 18 IJSC Appendix.

       28 USC 2241(c)(5).

       The issue of Mauro’s effect on Beamon has reached this Court, but the panel found it unnecessary to resolve the issue. People v Estelle, 93 Mich App 449; 287 NW2d 262 (1979), People v Barnes, 93 Mich App 509; 287 NW2d 282 (1979). One judge did reach the issue, and found that Mauro overruled the holding in Beamon. People v Barnes, supra, T. M. Burns, J., concurring.

       28 use 2241.

       MCL 600.4301-600.4387; MSA 27A.4301-27A.4387.

       GCR 1963, 712, 713.

       MCL 600.4385; MSA 27A.4385, GCR 1963, 713.
      MCL 600.4319; MSA 27A.4319 provides for a writ of habeas corpus in child custody matters, but the court rule requires the initial use of a show cause order. GCR 1963, 712.14.

       Including the Detroit Recorder’s Court. See MCL 726.17; MSA 27.3567.

       See note 14, supra.

       The decision of the United States Supreme Court in Mauro involved the interpretation of a Federal statute. We are here involved with the interpretation of an identical state statute. As such, the Mauro decision should be looked on as providing guidance, but it is not controlling and we are free to reach a different conclusion based on the Michigan statute and the different nature of the state ad prosequendum writ.

       As a result we are also unable to pass on defendant’s claim that his motion to dismiss was granted on account of the prosecution’s alleged breach of the agreement by which he was to be granted immunity,, rather than for violation of the Agreement. We can note only that defendant’s motion to dismiss sets forth as alternative grounds breach of the immunity bargain and violation of the Agreement.

       See note 6, supra.

       See also, People v Barnes, 93 Mich App 509; 287 NW2d 282 (1979).

       An Article IV(e) violation was found in People v Beamon, supra, where defendant was returned to the general prison population at Terre Haute before a trial was concluded.


author: Pee Cueiam.

text:
    PEOPLE v HORTON
    Docket No, 78-827.
    Submitted November 15, 1979, at Detroit.
    Decided February 21, 1980.
    James Horton was convicted, on his pleas of guilty, of breaking and entering a place of business and of being a fourth felony offender, Wayne Circuit Court, James N. Canham, J. Defendant appeals, and alleges that his pleas should be vacated because the transcripts of three of his four court appearances cannot be produced. Held:

    A court rule provides that a settled record may be filed on appeal when transcripts of the lower court proceedings are unavailable. Because the defendant has not yet made an effort to do so, the case should be remanded to allow the defendant to obtain a settled statement of facts pursuant to the court rule.
    Remanded.
    Appeal and Error -— Criminal Law — Unavailability of Transcripts — Court Rules.
    The unavailability on appeal of transcripts of a criminal case does not automatically require that the case be started over; a settled record on appeal may be filed when transcripts are unavailable (GCR 1963, 812.2[b]),
    Reference for Points in Headnote
    [1] 4 Am Jur 2d, Appeal and Error §§ 397 et seq., 404.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Don W. Atkins, Assistant Prosecuting Attorney, for the people,

      Theodore P, Panaretos, for defendant on appeal.
    Before; Bronson, P.J., and D. C. Riley and E. A. Quinnell, JJ,

       Circuit judge, sitting on the Court of Appeals by assignment.

   Pee Cueiam.

Defendant was convicted on his plea of guilty to a charge of breaking and entering a place of business, MCL 750.110; MSA 28.305, and was sentenced to a prison term of from six years and eight months to 10 years. Defendant also pled guilty to a supplemental information charging him as a fourth felony offender, MCL 769.12; MSA 28.1084, and he was sentenced to a prison term of from eight years and four months to 15 years. This sentence was ordered to run concurrently with the sentence imposed for the breaking and entering conviction. Defendant appeals as of right.

Defendant appeared in the trial court on four separate dates. Despite the efforts of defense counsel and court personnel, only the transcript of the final court date could be produced. On appeal, defendant argues that the unavailability of the full record requires the vacation of his pleas and sentences. To do otherwise he contends would result in a denial of due process, effective assistance of appellate counsel, and of full and adequate appellate review, all of which are secured by the Michigan and United States Constitutions. He also argues that any alternative means of settling the record would be inadequate to protect these constitutional guarantees.

The one transcript before us as part of the lower court record contains the proceedings held in the trial court on November 21, 1977, defendant’s last day before the trial court on this matter. The transcript reflects that on this date the trial court accepted defendant’s guilty pleas and passed sentence. The pleas were apparently offered at an earlier court date, as the record contains little of the plea taking procedures required for guilty pleas by GCR 1963, 785.7 other than the trial court’s reference to a "recitation of [defendant’s] rights” at an earlier occasion.

We agree with defendant that in its present condition the record is inadequate for meaningful appellate review. The unavailability of transcripts does not, however, automatically require that the case be started over again. See People v Drake, 64 Mich App 671; 236 NW2d 537 (1975), lv den 402 Mich 846 (1978), People v Drew, 26 Mich App 337; 182 NW2d 566 (1970), People v Carson, 19 Mich App 1; 172 NW2d 211 (1969), lv den 383 Mich 780 (1970). GCR 1963, 812.2(b) provides an alternative method for settling the record on appeal when transcripts are unavailable. Defendant has yet made no attempt to comply with the court rule. Accordingly, this case must be remanded to allow the defendant to obtain a settled statement of facts under GCR 1963, 812.2(b). People v Bennett, 20 Mich App 166; 173 NW2d 830 (1969), lv den 383 Mich 765 (1970), People v Sharp, 9 Mich App 34; 155 NW2d 719 (1967), People v Gatewood, 5 Mich App 470; 146 NW2d 844 (1966).

Defendant argues that it will either be impossible to secure a settled statement of facts or that any statement obtained will be inadequate to preserve his constitutional guarantees. We find his arguments too speculative at this stage of the proceedings. There is seemingly no physical problem with settling the record, as trial counsel and the trial judge are all apparently still alive and available. We cannot pass on defendant’s claims regarding the constitutional sufficiency of a settled record until such record is before this Court.

Remanded for proceedings consistent with this opinion. We retain jurisdiction.

"(4) The statement of facts and the certifying order must be filed with the lower court clerk, and a copy of the certifying order must be filed with the Court of Appeals clerk.”

       Specifically, the transcript contains the following:
      "THE COURT: We did in fact have a recitation of his rights?
      "MR. SMITH [defense counsel]: Yes.
      "THE COURT: Bring the Defendant up here. Did the Court inquire of you as to your knowledge?
      "THE DEFENDANT: Yes.
      "THE COURT: Indicated to you the same rights that were explained to you and extended to you under the laws and constitution of the this [sic] state as far as the charge of breaking and entering a business place would apply?
      "THE DEFENDANT: Yes.”

       The majority of cases in this Court addressing the issue have involved delayed appeals by leave granted from very old convictions. A more serious problem is presented when a direct appeal as of right is involved, because Const 1963, art 1, § 20 grants such an appeal. The Court in People v Drew, supra, 341, addressed this issue in dicta, but still stopped short of suggesting that a new trial would be automatically required:
      "Upon direct appeal the unavailability of a transcript of the trial might so impede enjoyment of a defendant’s Michigan constitutional right of appeal that a new trial might have to be ordered as a matter of course.” (Emphasis added.) (Footnote omitted.)

       The court rule provides:
      “When a transcript of the proceedings in the court below cannot be obtained, the appellant shall file a settled statement of facts to serve as a substitute for the court reporter’s transcript of the proceedings in the lower court.
      "(1) Within 10 days after the filing of the claim of appeal, the appellant shall file with the clerk of the court below and serve on the appellee a proposed statement of facts. The proposed statement of facts shall concisely set forth the substance of the testimony, or the oral proceedings before the lower court judge if no testimony was taken, in sufficient detail to inform the Court of Appeals of the nature of the controversy and of the proceedings in the court below.
      "(2) The appellant shall notice the proposed statement of facts for prompt settlement before the lower court judge. An amendment or objection to the proposed statement of facts must be in writing, filed promptly in the court below, and served on the appellant.
      "(3) The lower court judge shall settle any controversy and certify a statement of facts as an accurate, fair and complete statement of the proceedings before him.

       In People v Dunn, 50 Mich App 529; 213 NW2d 832 (1973), this Court remanded for a new Suppression hearing rather than requiring defendant to attempt to secure a settled statement of facts because it found a settled statement would not be adequate. We believe the better course in the instant case is to require an attempt to be made before deciding whether the end result is inadequate.


text:
    PEOPLE v JACKSON
    Docket No. 78-829.
    Submitted November 15, 1979, at Detroit.
    Decided February 21, 1980.
    Jeanette Jackson was convicted, on her plea of guilty, of manslaughter and was sentenced to a term of 2 to 15 years in prison, Wayne Circuit Court, James N. Canham, J. Defendant appeals. The record on appeal contains the transcript of defendant’s plea proceeding.’-It does not, however, contain a transcript of the sentencing ^proceedings. On appeal defendant contends that the unavailability of the full record requires the vacation of her plea and sentence because to do otherwise would result in a denial of due process, effective assistance of appellate counsel, and a full and adequate appellate review, all of which are secured by state and Federal constitutions. She also contends that any alternative means of settling the record would be inadequate to protect these constitutional guarantees. Held:

    1. Defendant’s arguments are without merit so far as they concern her plea. A full transcript of the plea-taking proceedings is available. Defendant argues that this transcript does not include the trial court’s acceptance of her plea, but a formal acceptance is not required. Sentencing implies acceptance of the plea. The record reflects that defendant was sentenced, therefore, her conviction is affirmed.
    2. Defendants are entitled to appeal their sentences. The record in its present condition is inadequate for meaningful appellate review. However, the unavailability of the sentencing transcript does not automatically require that the case be started over again. A court rule provides an alternative method for settling the record on appeal where transcripts are unavailable. Defendant’s argument that it would be impossible to secure a settled statement of facts or that it would be inadequate to preserve her rights is too speculative at this stage of the proceedings. Defendant has made no attempt to comply with the court rule. There appears to be no physical problem with settling the record as trial counsel and the trial judge are all apparently still alive and available. The Court of Appeals cannot pass on defendant’s claims regarding the constitutional sufficiency of a settled record until such record is before the Court. Therefore, the case must be remanded to the trial court where defendant may attempt to obtain a settled statement of facts concerning her sentencing under the court rule.

      References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law §§ 495, 525.
    [2] 4 Am Jur 2d, Appeal and Error §§ 397 et seq., 938, 976.
    [3] 4 Am Jur 2d, Appeal and Error §§ 397, 398.

      3. Because the greatest relief to which defendant would be entitled is resentencing, on remand the trial court may, in its discretion, resentence defendant rather than settle the record.
    Affirmed in part and remanded.
    1. Criminal Law — Plea op Guilty — Acceptance op Plea — Sentencing.
    A conviction should be affirmed where the record reflects that a defendant tendered a plea of guilty and was thereafter sentenced; sentencing implies acceptance of the plea, no formal acceptance is necessary.
    2. Appeal and Error — Criminal Law — Sentence Transcript — Settled Record — Court Rules.
    Defendants are entitled to appeal their sentences; but this does not automatically require that a case be started over again where the transcript of the sentence proceedings is unavailable because a court rule provides an alternative method for settling the record on appeal (GCR 1963, 812.2[b]).
    3. Appeal and Error — Criminal Law — Settled Record — Constitutional Law — Sufficiency op Record.
    The Court of Appeals cannot pass on a defendant’s claims regarding the constitutional sufficiency of a settled record until such record is before the Court.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Rita Chastang, Assistant Prosecuting Attorney, for the people.

      Theodore P. Panaretos, for defendant.

      Before: Bronson, P.J., and D. C. Riley and E. A. Quinnell, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   Per Curiam.

Defendant was convicted on her plea of guilty to the offense of manslaughter, MCL 750.321; MSA 28.553. She was sentenced to a term of from 2 to 15 years in prison, and appeals as of right.

The record contains the transcript of defendant’s plea proceeding and of the proceedings relevant to compliance with GCR 1963, 785.7. It' does not, however, contain a transcript of the sentencing proceedings. Other documents in the lower court file reveal the sentence imposed but they do not contain information on which the defendant could base an appeal, such as statements by the trial court concerning the factors considered when passing sentence. On appeal, defendant argues that the unavailability of the full record requires the vacation of her plea and sentence. To do otherwise she contends would result in a denial of due process, effective assistance of appellate counsel, and of full and adequate appellate review, all of which are secured by the Michigan and United States Constitutions. She also argues that any alternative means of settling the record would be inadequate to protect these constitutional guarantees.

We find defendant’s arguments without merit so far as they concern her plea. A full transcript of the plea-taking proceedings is available. Defendant argues that this transcript does not include the trial court’s acceptance of her plea, but a formal acceptance is not required. Sentencing implies acceptance of the plea. Guilty Plea Cases, 395 Mich 96, 126; 235 NW2d 132 (1975). As the record reflects defendant was sentenced, her conviction is affirmed.

Defendants are also entitled to appeal their sentences, however, and we agree with defendant that in its present condition the record is inadequate for meaningful appellate review. The unavailability of transcripts does not, however, automatically require that the case be started over again. See People v Drake, 64 Mich App 671; 236 NW2d 537 (1975), lv den 402 Mich 846 (1978), People v Drew, 26 Mich App 337; 182 NW2d 566 (1970), People v Carson, 19 Mich App 1; 172 NW2d 211 (1969), lv den 383 Mich 780 (1970). GCR 1963, 812.2(b) provides an alternative method for settling the record on appeal when transcripts are unavailable. Defendant has as yet made no attempt to comply with the court rule.

Defendant argues that it will either be impossible to secure a settled statement of facts or that any statement obtained will be inadequate to preserve her constitutional guarantees. We find her arguments too speculative at this stage of the proceedings. There is seemingly no physical problem with settling the record, as trial counsel and the trial judge are all apparently still alive and available. We cannot pass on defendant’s claims regarding the constitutional sufficiency of a settled record until such record is before this Court.

Accordingly, this case must be remanded to the trial court. On remand, defendant may attempt to obtain a settled statement of facts concerning her sentencing under GCR 1963, 812.2(b). People v Bennett, 20 Mich App 166; 173 NW2d 830 (1969), lv den 383 Mich 765 (1970), People v Sharp, 9 Mich App 34; 155 NW2d 719 (1967), People v Gatewood, 5 Mich App 470; 146 NW2d 844 (1966).

Because the greatest relief to which defendant would be entitled is resentencing, on remand the trial court may, in its discretion, resentence defendant rather than settle the record. This alternative is proposed as it is possible that it will require less judicial time while granting defendant the maximum relief to which she would be entitled in any event.

Affirmed in part and remanded in part for proceedings consistent with this opinion. We retain jurisdiction.

       The issues raised in this appeal are substantially the same as those decided in People v Horton, 95 Mich App 561; 291 NW2d 121 (1980).

       The majority of cases in this Court addressing the issue have involved delayed appeals by leave granted from very old convictions. A more serious problem is presented when a direct appeal as of right is involved, because Const 1963, art 1, § 20 grants such an appeal. The Court in People v Drew, supra, 341, addressed this issue in dicta, but still stopped short of suggesting that a new trial would be automatically required:
      "Upon direct appeal the unavailability of a transcript of the trial might so impede enjoyment of a defendant’s Michigan constitutional right of appeal that a new trial might have to be ordered as a matter of course.” (Emphasis added. Footnote omitted.)

       The court rule provides:
      "When a transcript of the proceedings in the court below cannot be obtained, the appellant shall file a settled statement of facts to serve as a substitute for the court reporter’s transcript of the proceedings in the lower court.
      "(1) Within 10 days after the filing of the claim of appeal, the appellant shall file with the clerk of the court below and serve on the appellee a proposed statement of facts. The proposed statement of facts shall concisely set forth the substance of the testimony, or the oral proceedings before the lower court judge if no testimony was taken, in sufficient detail to inform the Court of Appeals of the nature of the controversy and of the proceedings in the court below.
      "(2) The appellant shall notice the proposed statement of facts for prompt settlement before the lower court judge. An amendment or objection to the proposed statement of facts must be in writing, filed promptly in the court below, and served on the appellant.
      "(3) The lower court judge shall settle any controversy and certify a statement of facts as an accurate, fair and complete statement of the proceedings before him.

        "(4) The statement of facts and the certifying order must be filed with the lower court clerk, and a copy of the certifying order must be filed with the Court of Appeals clerk.”

       In People v Dunn, 50 Mich App 529; 213 NW2d 832 (1973), this Court remanded for a new suppression hearing rather than requiring defendant to attempt to secure a settled statement of facts because it found a settled statement would not be adequate. We believe the better course in the instant case is to require an attempt to be made before deciding whether the end result is inadequate.