text:
    ATTORNEY GENERAL v. LEWIS.
    1. Schools —County Commissioner — Eligibility — Statute — Amendment — Effect.
    Section 3, Act No. 147, Pub. Acts 1891, provided that persons should be eligible to the office of county commissioner of schools who had held such office “under this act.” The act was amended in 1895 (Act No. 60) in several particulars, and by the amended act it was provided that “ persons who have held the office of commissioner of schools under the provisions of act number one hundred forty-seven, public acts of eighteen hundred ninety-one, shall be eligible.” Held, that persons elected to the office of commissioner, and holding the same after the amendment of 1895, are eligible, since the statute is still the act of 1891 notwithstanding its amendments.
    2. Statutes — Construction—Amendments.
    For the purpose of construction, a statute and its amendments are to be treated as one act, and of two constructions equally warranted by the language of an amendment, that is to be preferred which best harmonizes the same with the general tenor and spirit of the act amended.
    Quo warranto proceedings by John E. Bird, attorney general, against Sim J. Lewis to try the title to the office of school commissioner of Otsego county.
    Submitted January 7, 1908.
    (Docket No. 165.)
    Judgment for respondent January 31, 1908.

      John E. Bird, Attorney General, and Thomas Ambrose Lawler, Assistant Attorney General, for relator.

      W. L. Townsend, for respondent.
   Hooker, J.

In April, 1907, the respondent was a candidate for the office of commissioner of schools for Otsego county, which contains less than 50 school districts. He received a majority of all votes cast, and a certificate of election, whereupon he filed his oath of office. He had held a similar office in Oscoda county continuously from July 1, 1899, to November 1, 1905, and had had experience as a teacher in public schools. On April 1, 1907,he held a first-grade certificate issued by the Oscoda county board, which had been indorsed and countersigned by the superintendent of public instruction, but he did not hold a teacher’s certificate granted by the board of examiners of Otsego county. He had never held the office of commissioner of schools prior to July 1, 1899, and was not the holder of a State teacher’s certificate, nor a graduate of the literary department of any such college, university, or school, as is referred to in section 4810, 2 Comp. Laws.

On July 1, 1907, respondent demanded the books, papers, etc., belonging to said office of Bailey, who had theretofore been commissioner of schools of said county, who, acting under the advice of the superintendent of public instruction, refused to give up the office or the property belonging to it. Respondent afterwards obtained them through proceedings in the probate court, under 3 Comp. Laws, chap. 272.

This proceeding was instituted in this court to oust respondent from said office. The only question before us is whether respondent possesses the statutory qualifications for the office. The office in question is a statutory office and certain statutory qualifications are requisite to eligibility, 2 Comp. Laws, § 4810.

“ Persons eligible to hold the office of commissioner of schools must possess, besides an experience of twelve months as teacher in the public schools of the State, one of the following qualifications: Must be a graduate of the literary department of some reputable college, university or State normal school, having a course of at least three years, or hold a State teacher’s certificate, or be the holder of a first-grade certificate, but said first-grade certificate shall only qualify the holder thereof to hold the office of commissioner in the county where such certificate was granted: Provided, That persons who have held the office of commissioner of schools under the provisions of act number one hundred forty-seven, public acts of eighteen hundred ninety one, shall be eligible. In counties having less than fifty districts subject to the supervision of the county commissioner, a person holding at the time of his or her election a second-grade certificate shall be eligible.”

Counsel for respondent bases his claim of eligibility on three grounds:

1. A first-grade certificate which makes him eligible in any county where it was in force, although issued in a county other than that in which he was elected.

2. Having previous to election to the office in dispute held the office of commissioner of schools (in another county) under.Act No. 147, Pub. Acts 1891.

3. A first-grade certificate indorsed by the superintendent of public instruction in force in the county of his election, said county having less than fifty school districts.

The statute above quoted is section 3 of Act No. 66, Pub. Acts 1895, amendatory of Act No. 147, Pub. Acts 1891. The section before amendment provided that persons should be eligible to the office of commissioner “who have held the office of county commissioner under this act,” and the attorney general claims that the requirements under which respondent was elected were, by reason of the amendment, greater than those required by the act of 1891. Our opinion is that the original act indicates an intention to provide that, once elected, a man was to be» always eligible under the act, and that the same intent is shown by the amendment. The change of language can be accounted for by this intention, coupled with a fear that the retention of the words “this act” would be construed to show an intention to limit eligibility to such as should have held office under the amendatory act. It probably would not have had that effect, as we would have been justified in saying that the language had reference to the original act as amended, i. e., Act No. 147, Pub. Acts 1891. This is the act under which all of these elections have been had, notwithstanding the fact that some changes have been made by amendment. It is still the act of 1891 where we must look for the title and for the substratum of the provisions on the subject.

For the purposes of construction both acts are to be treated as one, and “ of two constructions equally warranted by the language of an amendment, that is to be preferred which best harmonizes the same with- the general tenor and spirit of the act amended.” Endlich on Interpretation of Statutes, §§ 40, 44, 294. In our judgment it was the intention of the legislature to continue the provision in the law of 1891 making the holding of the office, whether before or after the amendment, a sufficient qualification.

We do not question the propriety of a different construction in cases where a contrary intent is manifest, or where, as in Hatch, v. Calhoun Circuit Judge, 127 Mich. 175, a penal case, the construction contended for appears to make the two acts repugnant or inconsistent.

As this point is conclusive of the controversy, discussion of other grounds relied on by respondent is unnecessary. The respondent has established his right to the office and will take judgment accordingly.

Blair, Ostrander, Moore, and McAlyay, JJ.5 concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    VILLAGE OF FRANKFORT v. SCHMID.
    Equity — Practice — Cross-Bill — Right to Maintain — Relief Grant able.
    On a bill by a village against a holder of its bonds alleging the invalidity of the bonds and defendant’s want of bona fides, and praying an injunction to restrain their sale pendente lite, and that the bonds may be delivered up and canceled, a cross-bill is maintainable to obtain a decree that the bonds are legal and valid in defendant’s hands and ordering complainant to pay them; the general rule that equity may do complete justice between the parties in the particular controversy before the court being applicable.
    Appeal from Benzie; Chittenden, J.
    Submitted January 7, 1908.
    (Docket No. 6.)
    Decided January 31, 1908.
    Bill by the village of Frankfort against Frederick Schmid, surviving partner of Mack & Schmid, to enjoin the negotiation of certain bonds, and for the surrender and cancellation of the same. Defendant filed an answer in the nature of a cross-bill to determine the legality of said bonds. From an order overruling a demurrer to the cross-bill, complainant appeals.
    Affirmed.

      D. Q. F. Warner and Thomas Smurthwaite, for complainant.

      B. M. Thompson, for defendant.-
   Hooker, J.

This controversy in various forms has been frequently before us, and its history can be learned by consulting the following citations: Mack v. Village of Frankfort, 123 Mich. 421; Schmid v. Village of Frankfort, 131 Mich. 197, 134 Mich. 619; Schmid v. Benzie Circuit Judge, 138 Mich. 452; Schmid v. Village of Frankfort, 141 Mich. 291; Schmid v. Benzie Circuit Judge, 144 Mich. 680. The crucial question in the controversy is whether Mack and Schmid were bona fide purchasers of certain village bonds without notice. At one stage of this litigation, after one or more trials of the action now pending upon the coupons, the defendant in that action filed the original bill in this cause. It alleged the issue and invalidity of the bonds and coupons, the pendency of a suit upon them, plaintiff’s claim that Mack and Schmid were bona fide purchasers and complainant’s denial of the same, its fears that the bonds might be negotiated in a way to create a liability upon complainant and prayed an injunction restraining such transfer and that the bonds should be delivered up and canceled. A temporary injunction issued and is now in force. The defendant Schmid answered, claiming affirmative relief under the statute to the end that the bonds and coupons be decreed to be legal and valid in defendant’s hands, and complainant decreed to pay the same. A demurrer was filed to the cross-bill, the grounds being, first, that defendant has an adequate remedy at law; second, the pendency of the action at law; third, that the relief prayed is not germane to and has no connection with the bill of complaint filed in the cause. The demurrer was overruled and complainant has appealed.

As we have said, the original bill in this case was filed for the cancellation of these bonds and coupons which it alleged to be fraudulent and void, asking an injunction to restrain sale pendente lite. The relief asked necessarily required an adjudication of the question of validity of the bonds in the hands of the defendant. It went so far as to allege plaintiff’s want of bona fides, which was denied in the answer.

There was an issue which would justify a dismissal of the bill, but as that would leave the controversy without a complete adjudication defendant filed a cross-bill for the purpose of obtaining a complete adjudication. It raised no new issue. It introduced no new facts. An adjudication that defendant was a bona fide holder would determine the validity o£ the bonds between the parties. This determination of the question would make it res adjudicata, and would conclude the complainant in any new action at law involving it, or for that matter in the action already pending if properly pleaded. Why require defendant to bring another suit under such circumstances, upon the alleged rule that the relief upon á cross-bill must always be confined to cases when an original bill might have been filed to enforce such remedy? Such language was used in Hackley v. Mack, 60 Mich. 604, but it was unnecessary to a decision of that case.

The general rule that equity may do complete justice between the parties in. the particular controversy before the court, and may even entertain an original bill upon the ground of saving a multiplicity of suits, ought to be applicable to a cross-bill like this. There is some diversity of opinion upon the subject, but this doctrine is well supported.

In La Grange, etc., R. Co. v. Rainey, 7 Coldw. (Tenn.) 420, it was held that, where a bill put in question the validity of a deed, the court might decree title in the defendant without a cross-bill. See, also, Allen v. Allen, 11 Heisk. (Tenn.) 387; Little v. Mann, 62 Me. 328; Dayton v. Melick, 12 C. E. Green (N. J. Eq.), 362; Pitts v. Powledge, 56 Ala. 147. It is unnecessary for us to go so far as to accept the rule stated in the La Grange Case, or to say that relief might be had in some of these cases even upon cross-bill.

An extended discussion of the subject will be found in Armstrong v. Mayer, 69 Neb. 187. In Stuart v. Hayden, 72 Fed. 410, a complete determination of the controversy is mentioned as a proper object of a cross-bill. See Greenwalt v. Duncan, 16 Fed. 35; Remer v. McKay, 38 Fed. 164. In Hall v. Edington’s Ex’rs, 8 B. Mon. (Ky.) 47, a rather broader rule than the one relied on here appears to have been followed. That case followed Logan v. McMillan, 5 Dana (Ky.), 484. Our own case of McKenzie v. A. P. Cook Co., 113 Mich. 452, seems in point. There the defendant asserted a legal title to land in an answer in the nature of a cross-bill to a bill filed to quiet title. Complainant questioned his right to do this, but we said:

“A question is raised as to whether the defendant company can assert its legal title by cross-bill. We think it is open to the defendant to do so. The scope of complainants’ bill was such as to call for a determination of the question of title between these parties. This being so, the defendant had a right to interpose by way of cross-bill, and ask the relief to which it was entitled in case the court should find against the complainants’ title.”

See, also, Koch v. Sumner, 145 Mich. 358.

We are of the opinion that this rule is applicable here. The decree overruling the demurrer is affirmed, with costs. Complainant will be allowed 20 days from the date of decree in this court, within which to answer the cross-bill.

Blair, Montgomery, Ostrander, and Moore, JJ., concurred.


author: Moore, J.

text:
    HICKS v. BOARD OF TRUSTEES OF THE VILLAGE OF PERRY.
    Intoxicating Liquors — Regulation of Traffic — Statute—Construction — Bonds—Duty to Accept.
    Act No. 532, Local Acts 1907, providing that the board of trustees of the village of Perry “is hereby authorized and empowered ” to accept surety company bonds of liquor dealers in said village, but which does not in terms repeal the provisions of section 5383, 2 Comp. Laws, or require the board to accept surety company bonds in lieu of those required by said section 5383, is permissive and not mandatory, and the board is not required to accept such bonds if they deem the surety insufficient.

      Certiorari to Shiawassee; Miner, J.
    Submitted January 7, 1908.
    (Calendar No. 22, 498.)
    Decided January 31, 1908.
    Mandamus by John A. Hicks to compel the board of trustees of the village of Perry to accept a liquor bond. There was an order granting the writ, and respondent brings certiorari.
    Reversed.

      Odell Chapman, J. H. Collins, and A. E. Richards, for relator.

      A. L. Chandler and Seth B. Terry, for respondent.
   Moore, J.

This is a certiorari proceeding to review the action of the circuit judge in granting a mandamus against the respondent compelling it to accept a liquor bond. The village has about eight hundred inhabitants. The relator owns a hotel situated on the land described in section 3 of Act No. 532, Local Acts 1907, approved May 8, 1907. The act reads:

“An act to authorize and empower the board of trustees of the village of Perry in Shiawassee county, Michigan, to accept surety company bonds in lieu of the bonds required of liquor dealers under act three hundred thirteen of the public acts of eighteen hundred eighty-seven; to limit the number of saloons which may be licensed in said village, and to fix their location.

‘ ‘ The People of the State of Michigan enact: Section 1. The board of trustees of the village of Perry in Shiawassee county, Michigan, is hereby authorized and empowered to accept in lieu of the bonds required of liquor dealers under the provisions of act number three hundred thirteen of the public acts of eighteen hundred eighty-seven, the bond of the principal and any reliable surety company which is or shall be authorized by the insurance department of this State to do business in Michigan.

“ Sec. 2. There shall be but one saloon licensed by the board of trustees of the village of Perry to engage in the business of manufacturing, selling, keeping for sale, furnishing, giving or delivering spirituous and intoxicating liquors, and malt, brewed or fermented liquors and vinous liquors, in the said village until the population thereof, according to the last preceding State or Federal census, shall exceed fifteen hundred, when the said board of trustees may license two saloons.

“ Sec. 3. So long as there shall be but one saloon in the village of Perry, under the provisions of this act, its location shall be in the building on lots four, five and six in block three, in said village, so long as said building is used for hotel purposes: Provided, That in the case of destruction of said building or its use for other or different purposes than a hotel, then the board of trustees of said village may, by resolution, specify another location for the said saloon.

“ This act is ordered to take immediate effect.”

The relator presented to the council a bond signed by a surety company. The respondents declined to approve it, alleging as a reason that the surety was insufficient and that the bond w,as not in due form of law.

Respondents claim Act No. 532 is unconstitutional for the reason that it violates sections 20, 25, and 38 of article 4, and section 32 of article 6, of the State Constitution, and TJ. S. Constitution, Amend. 14, § 1. The respondents also contend that it has passed an ordinance prohibiting the sale of liquor in the village of Perry. Respondents also contend that this act is only permissive and is not mandatory.

It will not be necessary to discuss the first and second of these contentions. The act does not in terms repeal the provisions of section 5383, 2 Comp. Laws. It does not require the council to accept surety company bonds in lieu of those required by said section 5383. It simply authorizes and empowers them to do so. The language is not mandatory but permissive. The case is within Quay v. Cheboygan Circuit Judge, 150 Mich. 457, and the many cases cited therein.

The judgment of the court below is reversed, and the writ of mandamus is denied, with costs to respondent.

Grant, C. J., and Blair, Carpenter, and Me Alva y, JJ., concurred.


author: Carpenter, J.

text:
    HARRISON v. BOARD OF SUPERVISORS OF CHIPPEWA COUNTY.
    Justices of the Peace — Fees — Criminal Cases — Sault Ste. Marie Charter — Construction—Liability oe County.
    Under section 38 of chapter 5 of the charter of Sault Ste. Marie (Act No. 468, Local Acts 1901), providing a salary for the justice of the peace for said city and that said salary “shall be in full compensation for all services performed,” the justice cannot recover of the county of Chippewa the legal fees for trying criminal cases, notwithstanding the provision of section 37 of said chapter that “ the expenses of prosecutions for violation of penal laws of the State shall be paid by the county of Chippewa.”
    Certiorari to Chippewa; Steere, J.
    Submitted January 7, 1908.
    (Calendar No. 22, 224.)
    Decided January 31, 1908.
    Mandamus by Harry A. Harrison to compel the board of supervisors of Chippewa county to audit and allow certain claims for trying criminal cases. There was an order denying the writ, and relator brings certiorari.
    Affirmed.

      M. M. Larmonth, for relator.

      George B. Holden, for respondent.
   Carpenter, J.

This is a mandamus proceeding brought in the circuit court for the county of Chippewa to compel respondent to pay the fees alleged to be due relator’s assignor, John A. Couch, justice of the peace for the City of Sault Ste. Marie, for services for trying certain criminal cases. The circuit court denied relator’s petition and the proceedings are before us for review.

If the fees of said justice were regulated by the general laws of the State (see section 12004, 3 Comp. Laws), relator would be entitled to relief. But the law under which these services were performed is found in chapter 5 of the charter of the city of Sault Ste. Marie. (See Act No. 468 of the Local Acts of 1901.) Section 38 of said chapter reads:

“ The said justice shall receive an annual salary of one thousand five hundred dollars, to be paid out of the treasury of said city in monthly installments. The said clerk shall receive an annual salary of seven hundred and fifty dollars, to be paid out of the city treasury in monthly installments. These salaries shall be in full compensation for all services performed by said officers, * * * and they shall make no charge to any person for any service required of them or either of them by this act, except as herein expressly provided.”

The contention that notwithstanding the foregoing language the justice is entitled to fees for trying criminal cases is based upon the following language found in the preceding section, section, 37:

“All moneys paid to said justice, except jury, officer and witness fees, and except all fines and costs recovered for the violation of the penal laws of this State, shall be for the use of the city and shall be paid weekly to the city treasurer. * * * The expenses of prosecutions for violation of penal laws of the State shall be paid by the county of Chippewa.”

The argument of relator, as I understand it, is that the term “costs” above used comprises the fees authorized by the general laws of the State to be collected by the justice; and as these are not to be turned over to the city, they are to be retained by him. It is also insisted that the fees are a part of the “expenses ” which the law requires “ shall be paid by the county of Chippewa.” I think this argument faulty. The “ costs” which are to be withheld from the city and the “ expenses ” which áre “to be paid by the county ” are the lawful costs and expenses, and only the lawful costs and expenses. May the fees of the justice for services in trying criminal cases be lawfully included in said costs and expenses ? That is the question to be determined in this case. We get no aid in determining it from section 37. Indeed that section throws no light upon it. It is determined by section 38, which explicitly provides that the salary of the justice “shall be in full compensation for all services performed,” thereby depriving him of the right to fees for any of said services.

The learned circuit judge properly denied relator’s petition, and the order made by him is affirmed.

Grant, C. J., and Blair, Montgomery, and MoAlvay, JJ., concurred.


author: Ostrander, J.

text:
    CARLSTON v. RYAN.
    Release — Establishment—Evidence—Question foe Juey.
    In an action for a personal injury, the defense being a release, evidence examined, and held, to make a case for the jury, the writings actually executed not being conformable to the claim of either party with reference to the compensation of releasor’s attorney.
    Error to Saginaw; Gage (Chauncey H.), J.
    Submitted January 7, 1908.
    (Docket No. 5.)
    Decided January 31, 1908.
    Case by August Carlston against Glenn Ryan and the Norris Auto Company for personal injuries. There was judgment for plaintiff, and defendants bring error.
    .Affirmed.

      Keena, Lightner & Oxtoby, for appellants.

      Julius B. Kirby, for appellee.
   Ostrander, J.

This suit was instituted to recover damages for injuries sustained by plaintiff, who was run down by an automobile. With the plea, defendants gave notice that they would prove that' plaintiff had been satisfied and had released defendants from all liability. The single point presented in this court arises upon the contention of defendants that such satisfaction and release were conclusively established. At the hearing, counsel for appellee was stopped by the court. A further examination of the record and the briefs has confirmed the opinion that there was testimony which required the trial court to submit the question to the jury. It is not necessary to set out this testimony. Opposed conclusions may be supported by it, depending upon its acceptance or rejection as representing the real facts. And opposed conclusions are warranted, as matter of law, with respect both to the mutual understanding of the terms of the attempted settlement and the fairness of means employed to bring it about. It is the testimony of defendants’ witness, who made the settlement and who represented, as an adjuster, an insurance company which had issued to defendant Norris Auto Company a liability insurance policy, that a part of the agreement was that plaintiff’s attorney was to be paid, if he established a claim for services, and that a writing should be given which would protect plaintiff against any claim for services on the part of plaintiff’s attorney with whom, to the knowledge of the witness, plaintiff had a contract to pay him one-half of such sum as he should receive. The testimony on the part of plaintiff tends to prove that the understanding and agreement was that defendants should pay his attorney, and that, as part of the settlement, a writing to that effect was to be made. The writing made, the purpose of which plaintiff says he did not understand, corresponds with neither version of the terms of settlement. It is signed by neither the defendants nor the insurance company but by the adjuster. It is, in terms, a mere written opinion of the person signing it that the attorney had no claim for his services. Plaintiff had signified a willingness to accept $500, one-half of which he would, he said, give to his attorney. He- was paid $200, his hospital and doctor’s bills, amounting to $51.50, were paid. It is appellants’ contention that the attorney was to be paid if, after a contest, he should establish a claim for services against the plaintiff. The jury were at liberty to find that the .agreement was as plaintiff’s testimony indicates and, that he accepted the $200, which he afterwards tendered back to defendants, relying upon the fact that a writing had been made which insured the payment of his attorney.

The.judgment is affirmed.

Blair, Montgomery, Hooker, and Moore, JJ., concurred.


author: Montgomery, J.

text:
    WARREN v. WARREN.
    1. Partition — Bill—Sufficiency—Remedy at Law.
    A bill for partition presents no case for equity where it shows upon its face that the title to the land is in controversy.

      2. Same — Amendment—Effect.
    A bill to partition land devised to decedent, remainder to complainant and defendants, which avers that decedent during her lifetime asserted the claim that the title vested in her absolutely and conveyed the land to defendants, is not aided by an amendment introducing an averment that the conveyance made by decedent in her lifetime was without necessity and in fraud of complainant’s rights, and without consideration, ' since the question at issue still is, What vested in the defendants under the deed ?
    3. Same — Will—Bill to Construe — Sufficiency.
    A bill to partition land devised to decedent, remainder to complain ant and defendants, which must be dismissed as suoh as showing on its face that the title to the land is in controversy, cannot be sustained as a bill to obtain a construction of the will under which all parties claim where it contains no prayer for such relief and there is no dispute between the parties as to the construction of the will.

      4. Wills — Construction—Bill to Obtain — Propriety—Remedy by Ejectment.
    A claimant of property under a will cannot obtain a construction of the will by bill in equity where an action of ejectment may be brought to determine the effect of the conveyances under which all parties claim.
    5. Quieting Title — Bill — Sufficiency—Averment as to Possession.
    A bill cannot be sustained as a bill to quiet title which shows upon its face that defendant is in possession.
    Appeal from Wayne; Donovan, J.
    Submitted January 7, 1908.
    (Docket No. 4.)
    Decided January 31, 1908.
    Bill by William H. Warren against John E. Warren and others for a partition of certain real estate, for the appointment of a receiver, and to set aside certain deeds. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      James Swan, for complainant.

      Russel, Campbell, Bulkley & Ledyard, for defend- . ants.
   Montgomery, J.

This is a bill for a partition of lands. The bill alleges that the parties, complainant and defendants, are children and heirs at law of John Locke Warren, who died testate oh the 10th of August, 1896. By the terms of his will, which was probated, Margaret Warren, his wife, was appointed sole executrix, and she was authorized to sell and convey or lease any portion or the whole of the property, in her discretion, and to .use and enjoy the same during her natural life. The will contained the provision that at the death of Margaret Warren any residue of the estate which was left should vest in common in the complainant and defendants.

The bill alleges that by the terms of the will Margaret Warren became possessed of a life estate, with remainder over to complainant and defendants. It then described lands of which John Locke Warren died seised, and avers that the complainant and defendants are seised in fee simple and entitled to the premises described as tenants in common, the complainant and each of the defendants being entitled to a one-quarter interest. The bill further avers that Margaret Warren, during her lifetime, made and executed warranty deeds to the defendants of all the described property, which were placed of record, she, Margaret, claiming, as the complainant is informed, that she held the same in fee simple, and not as life tenant. The bill further alleges that the defendants have denied complainant’s right to any interest in the premises, and that complainant is desirous that a partition be made, and that the premises are in the possession of tenants who are paying rent to the defendants.

The bill prays that the parts or shares belonging to the complainant and the other owners may be settled and ascertained by and under the direction of the court, and that a division and partition thereof be made, and also prays for the appointment of a receiver, and that the deeds of Margaret Warren to the defendants may by decree of the court be declared null and void and of no force and effect whatsoever.

At the settlement of the decree, and after a decision had been announced by the trial judge, it was proposed to amend the bill by the further statement that the conveyance made by Margaret Warren in her lifetime was without necessity and. in fraud of the rights of complainant, and without any consideration being paid therefor. The circuit judge dismissed the bill on the ground that the bill presented no case for equity, it being a bill filed for partition, and showing upon its face that the title to the land was in controversy, and that the question of title was one triable in a court of law. This decision of the circuit judge was right, and accords with the decision of Hoffman v. Beard, 22 Mich. 59, the rule of which case has never been disturbed.

If we treat the amendment proposed at the settlement of the decree as made, it does not change the aspect of the case. The bill originally averred that Mrs. Warren asserted the claim that the title vested in her absolutely under the will of her husband, and conveyed the land to the defendants. It is immaterial as to whether this resulted from importunity on the part of the defendants or as the result of a conspiracy. The real question is, What vested in the defendants under the deed ?

It is suggested in the brief that the bill should be sustained as a bill for the construction of the will of John Locke Warren. The bill contains no such prayer for relief, nor is there any averment in the bill of complaint that there is any dispute existing between the parties as to the construction of the will. Nor do we understand that in a controversy between two claimants of title derived from the will of another, any claimant may invoke the aid of a court of equity in securing a construction of the will when, by an action of ejectment, the rights derived by the conveyance under which they claim may be determined in an appropriate forum. ,

To the suggestion that the bill may be treated as a bill to quiet title, a sufficient answer is that the bill shows upon its face that defendants are in possession.

The decree will be affirmed, with costs.

Blair, Ostrander, and Moore, JJ., concurred. Hooker, J., concurred in the result.


author: Per Curiam.

text:
    JARRAIT v. PETERS.
    Costs — On Error — Statute—Construction —Order of Court.
    Though section 11271, 3 Comp. Laws, leaves the costs in the discretion of the court in cases where a new trial is ordered, it is not to be assumed from the fact that no mention of costs is made in the opinion that no action as to costs was taken by the court in reversing a case, since by general direction to the clerk the journal entry always includes an award of costs in case of reversal or affirmance, unless direction to the contrary appears in the opinion.
    Case by George H. Jarrait against Louis M. Peters for damages for refusal to give possession under a lease: On motion to vacate the taxation of costs.
    Submitted January 7, 1908.
    (Calendar No. 21, 348.)
    Denied January 31, 1908.

      Van Zile & Brownson, for the motion.

      Thomas Hislop, contra.
   Per Curiam.

In this case a judgment for the plaintiff was reversed and a new trial ordered. Jarrait v. Peters, 145 Mich. 29. The costs were regularly taxed by the clerk of the court, amounting in all to the sum of $180.24. It appears that the case was afterwards retried in the circuit court for the county of Wayne, and a judgment recovered in favor of the plaintiff in-the sum of $300, with costs. No steps have been taken to reverse this judgment.

Motion is now made to vacate the taxation of costs based on section 11271, 3 Comp. Laws, the contention being that inasmuch as in the opinion of the court the statement is simply, “Judgment is reversed, and anew trial granted,” it is to be assumed that no action as to costs was taken by this court.

Counsel has mistaken the practice. While section 11371, 3 Comp. Laws, leaves the costs within the discretion of the court in a case where a new trial is ordered, by general direction to the clerk the journal entry always includes an award of costs in case of reversal or affirmance, unless direction to the contrary be given in the opinion. In the present case the journal entry shows that costs were awarded to the defendant on reversal of the judgment.

The motion is denied.


text:
    WHEATON v. WAGNER LAKE ICE & COAL CO.
    1. Master and Servant — Fellow-Servants—Defective Appliances — Choice of Tools.
    Where a master supplied several pairs of ice tongs of different styles for the use of his servants, the negligence, if any, of a servant in choosing a style less perfect than another which he might have chosen, which resulted in his tongs slipping and injuring plaintiff, another servant, was the negligence of a fellow-servant, for which the master is not responsible.

      2. Same — Defective Appliances — Assumption of Risk.
    A servant assisting in putting up ice assumes the risks arising from the use by himself and his fellows of the ice tongs furnished by the master, where the tongs are all efficient to the extent of their capacity, though some are not of the latest pattern or the best adapted to the use to which they are put.
    Error to Jackson; Parkinson, J.
    Submitted January 9, 1908.
    (Docket No. 17.)
    Decided January 31, 1908.
    Case by Seward L. Wheaton against the Wagner Lake Ice & Coal Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed, and no new trial ordered.

      Keena, Lightner & Oxtoby, for appellant.

      John E. Shekell and Forrest C. Badgley, for appellee.
   Montgomery, J.

This is an action for negligent injury. The plaintiff was engaged with one Holland in loading ice for defendant at Norvell. While thus, Holland reached down as was his custom in loading this ice, took hold of the ice with his tongs in a horizontal direction. Plaintiff then did likewise, this action bringing him in a stooping position, with this head over a cake of ice. They both lifted with their tongs, and when the cake was a couple of feet from the ground, Holland’s tongs slipped vertically up through the cake and struck plaintiff in the eye.

The only negligence relied upon is that the tongs which Holland was using were not suitable for the work. This it was sought to establish by opinion evidence that they were not safe tongs. The evidence failed to show as to whether they were of a pattern in common use. The evidence of plaintiff’s witnesses shows that there were altogether in the tool house' 27 pairs of tongs, of which six or seven were of the same pattern as the Holland tongs, much the larger number were of the pattern used by the plaintiff, and a few pairs were of still another pattern. The tongs were exhibited on the argument of the case in this court. Both pairs worked upon the same principle. In fact there is nothing about a pair of ice tongs that would seem to require expert testimony to instruct either a court or a jury. Both appeared to be equally sharp at the points. The Holland tongs curved a little less sharply than the Wheaton tongs, so-called, and it resulted that they would not grasp with equal efficiency a large cake of ice. In other words, the capacity of these tongs to grasp a cake of ice was limited.

But it was a perfectly obvious limitation. Any one using such a tool would be able to know at a glance whether a sufficient hold had been secured upon the ice to support its weight, and any insistence on making use of the tongs without having a sufficient hold on the ice to support the weight was plainly negligence, and, if it was the act of a fellow-servant, was obviously the negligence of a fellow-servant.

Nothing can be made of this case but a case of pure accident or negligence of a fellow-servant. The parties engaged had an opportunity to make selection from different kinds of tools, and if a mistake was made in choosing a less effective one than others lying in the tool house, the defendant can hardly be held responsible for this fact.

But the point on which we rely in the case is that the conditions were perfectly obvious. The tools furnished were efficient to the extent of their capacity, and were not calculated to deceive those who used them. They may not all have been of the latest pattern, or the best adapted to the use. But this was not required. See Shadford v. Railway Co., 111 Mich. 390.

No case was made for the jury. The judgment should be reversed, and no new trial ordered.

‘Blair, Ostrander, Hooker, and Moore, JJ., concurred.


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    O’DONNELL v. WADE.
    1. Justices oe the Peace — Dockets—Entries—Appearances— Statement of Time.
    Where the paragraph of a justice’s docket showing the appearances of the parties begins “1899, May 23d, ten o’clock a. m.,” it sufficiently appears that the appearances were at ten o’clock.
    2. Same — Place of Return.
    A reasonable construction of a justice’s docket authorizes the inference that the proceedings recorded therein were had before the justice who issued the summons and signed the docket and that the summons was returnable before him at a proper place, though such facts are not specifically stated in the docket. The statute does not require that either of these things be entered in the docket.
    3. Same — Place of Entry.
    It is not necessary to state in a justice’s docket the place where the justice’s office was when the judgment was rendered.
    4. Same — Judgment on Note — Sufficiency.
    Where a justice’s docket states that the declaration was on a promissory note, and no entry appears showing any plea or denial of the execution of the note under oath, and states further that the defendants acknowledged their indebtedness, from which it is inferable that both defendants were present during the proceedings, though only one is mentioned as appearing at the hour of return, the docket is sufficient and is prima facie evidence of a valid judgment against both defendants.
    5. Same — Promissory Note — Proof of Ownership.
    Where the promissory note on which suit is brought is produced, filed, and canceled by the judgment on return day, there is sufficient to support the judgment without other proof of its execution or the ownership of it, and whether the defendant appears or not.
    Appeal from St. Clair; Tappan, J.
    Submitted January 10, 1908.
    (Docket No. 38.)
    Decided January 31, 1908.

      Bill by Cornelius O’Donnell against Fred B. Wade and Thomas Moore to remove a cloud upon title to land. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      A. E. Chadwick (James L. Coe, of counsel), for complainant.

      Frank B. Schell, for defendants.
   Hooker, J.

Complainant’s bill prays the removal of a cloud upon the title, caused by the levy of a transcript execution upon land. It involves the question whether the justice’s judgment is void or valid.

The grounds upon which it is attacked are:

(1) That this complainant, a defendant therein, is not shown to have appeared, and the docket omits to show the hour upon the return day, at which the parties appeared.

(2) That it is void as to complainant for the further reasons: a, The docket does not show where and before ‘whom the summons was returnable; b, the docket omits to show where the justice’s office was when judgment was rendered.

(3) The docket omits to show the confession of the defendants, by way of plea or otherwise, or to and in the presence of the justice while sitting in the case.

(4) Only one defendant was present and his confession cannot bind the complainant.

(5) No witnesses were sworn or any proof made showing Wade to be the bona fide owner or holder of the note.

A certified copy of the justice’s docket entries in the cause was introduced in evidence, which contained the, following entry on the date of the return day:

“1899, May 23d, ten o’clock a. m. Case called. Plaintiff present in person and E. A. Bartlett, as attorney. Defendant, Timothy O’Donnell, present in person.”

This implies their presence at ten o’clock. Vroman v. Thompson, 51 Mich. 455. A controversy arose over the words ten o’clock, it being claimed that they were not in the entry as originally made, but had been afterwards inserted. Oral evidence was taken on this point, and the trial judge found that they were contained in the original entry. If the certified copy of the docket was subject to contradiction, which we do not determine, we think the evidence justifies the conclusion reached.

If we give the docket a reasonable construction we may properly infer that the proceedings were before the justice who issued the summons and signed the docket, that the summons was returnable before him at a proper place. The statute does not require that either of these things be entered in the docket; nor is it necessary to state where the entry was made.

The docket states that the declaration was on a promissory note. Apparently no plea was filed, nor was there any denial of the execution of the note under oath. It states that the defendants acknowledged their indebtedness, from which it is inferable that both defendants were present during the proceedings, though only one is mentioned as present at ten o’clock. Thereupon judgment was rendered.

The evidence of the justice warrants the conclusion that the note was produced and filed and canceled by the judgment on the return day. This of itself was sufficient under the pleading to base a judgment upon, without other proof of its execution, and whether the complainant appeared or not. Tiffany’s Justice’s Guide (10th Ed.), § 191. The docket contained the requisite entries, and was prima facie evidence of a valid judgment. Goodrich v. Burdick, 26 Mich. 41; Tiffany’s Justice’s Guide (10th Ed.), § 366.

The decree is affirmed, with costs.

Blair, Montgomery, Ostrander, and Moore, JJ., concurred.


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    FOX v. BIALY.
    Work and Labor — Contract—Evidence—Admissibility.
    In an action for work and labor consisting of services performed for defendant personally in addition to plaintiff’s regular employment in managing the business of a corporation of which defendant was president and sole owner, there being no question but that plaintiff performed his contract with the corporation and had received his pay therefor, the issue was properly confined to the single question as to what the contract between plaintiff and defendant was, and an examination of plaintiff’s relations with the corporation was properly excluded.
    Error to Bay; Collins, J.
    Submitted January 10, 1908;
    (Docket No. 33.)
    Decided January 31, 1908.
    Assumpsit by Charles L. Fox against Robert C. Bialy for work and labor. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Stoddard & McMillan, for appellant.

      Brakie J. Orr, for appellee.
   Montgomery, J.

The plaintiff brought an action to recover for work and labor. It appears that defendant had been engaged for many years in the hardware business at Bay City. In 1904, having purchased an interest in a hardware store in Chicago, he formed a corporation under the name of the Bialy Hardware & Supply Company, to which he turned over his stock of hardware and business in Bay City. It appears, however, that the defendant was the owner of practically all the capital stock of the company. He was president of the company, and, as he says, owned the whole thing. Defendant also owned some real estate, from which rents were collected, and had a considerable number of uncollected accounts arising out of the business which he had previously transacted. The plaintiff was a bookkeeper, and engaged with defendant as bookkeeper and manager of the business of the Bialy Hardware & Supply Company at the salary of $20 per week. Plaintiff also claims that it was agreed between him and the defendant personally that, for looking after the personal matters of the defendant, he should receive $8.07 per week from defendant, thus making his total income $1,200 per annum. Defendant claimed that the contract was that plaintiff was to receive $20 per week for all his services, including those rendered for defendant personally.

The plaintiff recovered a verdict for the amount of his claim. Defendant moved to set aside the verdict on the ground that it was against the weight of testimony, and brings the case here for review upon the ruling of the circuit judge denying the motion for a new trial, and also upon other errors alleged to have occurred in the admission of testimony.

As to the errors alleged in the admission of testimony, they have been fully examined and are found to center around the question of whether it was necessary or competent to permit an extended examination into the methods of plaintiff in conducting the business of the Bialy Hardware & Supply Company, and as to his representations in regard to his ability to handle a business of that character, and as to what the other employés of the Bialy Hardware & Supply Company were engaged in doing, and what other people in the store did collecting, and inquiries of a like nature.

We are satisfied that the circuit judge committed no error in confining the trial of this case to the single issue of what was the contract between the plaintiff and defendant. There was no question made by either party that plaintiff had performed his contract with the Bialy Hardware & Supply Company, and received his pay for it. It was very proper, therefore, that the issue be confined to the single question as to what the contract was. The defendant at the close of the case recognized this, and asked the court to charge the jury as follows:

“ The material and only question in the case is: Did the defendant promise or agree to pay plaintiff the sum of money which plaintiff claims he did? The services are conceded, and what was the salary of the plaintiff, $20, which he received, or $8.07 more per week, which he claims, to make $1,200 per annum? If you find there was such a promise the plaintiff will recover. If you find there was not such a promise then the defendant will recover.”

This request presented a very clear conception of what the issue in the case really was.

Upon the question of whether the verdict was against the weight of the testimony, we think the Circuit judge rightly held that the conclusion of the jury was not so against the weight of the testimony as to justify the court in vacating the verdict.

Judgment will be aflSrmed, with costs.

Blair, Ostrander, Hooker, and Moore, JJ., concurred.


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    CITY OF GRAND RAPIDS v. COIT.
    1. Appeal — Effect—Jurisdiction Below.
    An appeal to this court ends the jurisdiction of the lower court unless the case is remanded for further proceedings.
    2. Courts — Orders—Nuno Pro Tuno Orders — Office.
    The office of a nuno pro tunc order is not to create, but to speak what has been done, to supply an omission in the record of action really had but omitted from the record through inadvertence or mistake, or to enter an order which should have been made as a matter of course, and as legal duty.
    3. Costs — Appeal—Stenographer’s Fees — Taxation—Nuno Pro TunC Order.
    Where, on appeal to this court from the superior court of Grand Rapids, the verdict in condemnation proceedings was set aside and a venire de novo awarded and the appellant was not allowed to tax as costs the stenographer’s fees for the testimony taken upon the trial because counsel had not complied with section 644,1 Comp. Laws, the court below had no jurisdiction thereafter to entertain a petition and enter an order for the testimony nunc pro tunc.
    Proceedings by the city of Grand Rapids against Clara M. Coit and others to condemn land for street purposes: On motion for a retaxation of costs.
    Submitted January 14, 1908.
    (Calendar No. 22, 159.)
    Denied January 31, 1908.

      Gleason & Lee, for the motion.

      Moses Taggart, contra.
   Per Curiam.

This cause on appeal to this court was reversed with costs to the respondents and appellants. 149 Mich. 668. In the taxed bill of costs was an item of $108.96, stenographer’s fees for testimony taken upon the trial. This item was taxed by the clerk in favor of the appellants. An appeal was taken from that taxation to this court and the item excluded on November 7, 1907, because counsel for the respondents had not complied with section 644, 1 Comp. Laws, and therefore were not entitled to tax this item. Thurston v. Luce, 61 Mich. 488.

On December 12th thereafter, the respondents presented a petition to the superior court of Grand Rapids, setting up the decision of this court, and asking that said petition be filed nunc pro tunc, and that a nunc pro tunc order based thereon be granted which would authorize the taxation of the costs. Such an order was granted and the respondents now petition this court for a rehearing on the question of taxation, and ask that that item be allowed.

The appeal to this court ended the jurisdiction of the lower court, unless the case was remanded from this court for further proceedings. The order of taxation, made by this court was based upon the record as presented here. The office of a nunc pro tunc order is “to speak what has been done, not to create” (Cox v. Gress, 51 Ark. 224); or to supply an omission in the record of action really had but omitted through inadvertence or mistake (Perkins v. Hayward, 132 Ind. 95); or to enter an order which should have been made as a matter of course, and as a legal duty (15 Enc. Pl. & Pr. p. 344).

The respondents took no steps under the statute establishing the superior court of Grand Rapids to obtain an order by which they would have been entitled to charge this item. There was therefore no omission or mistake in the record for the court to correct, nor had respondent taken any action entitling them to any order on the subject. It is in effect an entirely new proceeding, and the court was without jurisdiction to make it.

The motion is denied.


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    SMALL v. OLDS. In re SMALL’S ESTATE.
    t. Appeal and Error — Dilatory Appeal — Probate Court— Allowance — Discretion op Court.
    The allowance of a dilatory appeal from the probate court under section 674, 1 Comp. Laws, is within the sound legal discretion of the circuit judge, and his determination will not be reversed except in a case of clear abuse of discretion.
    3. Same — Excuse por Delay — Lack op Funds.
    Where a distributee of an estate delayed three and one-half months before appealing, under section 674, 1 Comp. Laws, from an order allowing the final account of the executor, the delay was not excused by the fact that the appellant was without funds and that the executor would not pay over her distributive share except upon her giving her receipt therefor as directed by the probate judge.
    Error to Cheboygan; Shepherd, J.
    Submitted January 20, 1908.
    (Docket No. 90.)
    Decided January 31, 1908.
    Petition by Etta M. Small for an appeal from the order of the probate court allowing the final account of Millard D. Olds, administrator of the estate of Julia Small, deceased. There was an order denying the petition, and petitioner brings error.
    Affirmed.
    Bush & Bush, for appellant.

      Frost & Sprague, for appellee.
   Montgomery, J.

This is error to review the action of the circuit judge in refusing to allow a dilatory appeal under section 674, 1 Comp. Laws. The facts necessary to be stated are that the executor filed his final account with the probate court and the same was allowed on the 14th day of July, 1906. The petition for leave to file a dilatory appeal was sworn to on the 15th day of April, 1907, was heard on the 27th of May, and denied on the 8th of July, on the ground that the petitioner had not shown herself to be without default within the meaning of the statute. The grounds alleged for excusing the delay are that, at the time the order was allowed, the party representing the interest now represented by petitioner, Etta M. Small, was J ames H. Small, her husband; that he was at the time an invalid and unable to look after his business matters, and did not learn of certain alleged frauds of the executor until after the 60 days had expired. His attorney then petitioned the probate court for a rehearing of the final account, which petition came on to be heard on the 10th of October, 1906. But on the 10th of October it is stated that said attorneys first learned that the executor was indebted to the estate (as is claimed) in the sum of $3,500 for interest, on the ground that the funds of the estate had been commingled with those of his own; that in the meantime, prior to the 10th of October, said James H. Small had died; that proceedings were taken in the estate of James H. Small, and a decree of assignment was made assigning his share of the estate to the petitioner on the 29th of December; that petitioner was then without means; and that the $1,300 which according to the account allowed by the probate court was coming to her, was withheld from the petitioner for the purpose of preventing her from appealing; that on the 29th of March, 1907, the executor turned over the $1,300 to the petitioner, taking her receipt therefor, which receipt was in the following form:

“Received of Millard D. Olds, administrator of the estate of Julia Small, deceased, the sum of thirteen hundred and twelve ($1,312) dollars, the same being my share of the said estate as per the final decree of A. Grieve, judge of probate for Cheboygan county.” Signed by the petitioner by her attorney.

We have frequently held that the allowance of an appeal under this statute is within the sound legal discretion of the circuit judge, and that his determination will not be reversed except in a case of clear abuse of discretion. See Smith v. Wayne Circuit Judge, 82 Mich. 93; Sanborn v. St. Clair Circuit Judge, 94 Mich. 526.

Whatever may be said of the excuses offered for the delay prior to December 29, 1906, it appears that from that date the petitioner was the sole person interested in the estate of James H. Small, and this had been judicially determined. (As a matter of fact, this was known to her from the date of the death of her husband, October 3, 1906.) But from December 29th on and until the 15th of. April, 1907, no action whatever was taken. This was a period of three and one-half months in which nothing whatever was done. The excuse offered for this is that the defendant withheld from the petitioner the money coming to her from the estate. It appears that by direction of the probate judge the executor was required to receive from the distributees several receipts for the moneys paid to them, and he very properly demanded it in this instance of the petitioner. The petitioner herself delayed receiving it until the 29th of March, and then proceeded, 15 days later, to make application for an appeal, after having receipted for her share of the estate.

The only further excuse for this delay of three and one-half months from the 29th of December is that the petitioner was without means. This is not a sufficient excuse, even if credited. The circuit judge was not in error in holding that the delay was too long. See Hopper v. Livingston Circuit Judge, 139 Mich. 101; Watson v. Kent Circuit Judge, 125 Mich. 182; Pickell v. Coates, 147 Mich. 53.

The order of the circuit court is affirmed, with costs.

Grant, C. J., and Ostrander, Hooker, and Carpenter, JJ., concurred.


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    GUILFOYLE v. HANSON.
    Alteration of Instruments —Deeds —Evidence — Sufficiency. On a bill to protect complainant’s homestead rights in certain land against a certain deed executed by complainant'and her husband and delivered to defendant for a third person, evi- ■ dence examined, and held, that the finding of the circuit judge that the name of the original grantee had been erased and another name substituted after the delivery of the deed would not be disturbed.
    Appeal from Oceana; Sessions, J.
    Submitted January 20, 1908.
    (Docket No. 98.)
    Decided January 31, 1908.
    Bill by Laura Guilfoyle against John D. S. Hanson and others to protect a homestead interest in certain land. From a decree for complainant, defendants appeal.
    Affirmed.

      Fred J. Bussell, for complainant.

      F. E. Wetmore and Chamberlain & Walker, for defendants.
   Moore, J.

This is a bill filed by the complainant, the wife of William Guilfoyle, to protect her homestead interests in 40 acres of land to which the defendants claim title through a deed purporting to be executed by the complainant’s husband and herself, and bearing date the 28th day of August, 1905; and acknowledged before the defendant, J. D. S. Hanson, as notary public.

The testimony shows that prior to the date of this deed, J. D. S. Hanson had represented the complainant and her husband as agent, the 40 acres being placed with him for sale on commission. The complainant and her husband testified that the sale price was to be $1,200, and the defendant Hanson was to receive $50 for commission. The defendant Hanson, on the other hand, claims that the price was to be net $1,150 to Guilfoyle, and that he was to receive as his commissions all that might be obtained over and above that sum.

On the 25th day of August, 1905, Hanson contracted to sell the land in question to one Joseph P. Philburn for the sum of $1,400. Mr. Philburn paid $100 down. On the 28th of August, complainant and her husband went to Hanson’s office, and there executed the deed in question.

Some time later, and about the 17th of October, 1905, Philburn wrote Mr. Hanson that he would forfeit the $100 and not take the land. In the meantime, the complainant and her husband had been informed that Mr. Hanson had sold the property for the price $1,400 to Phil-burn, and were dissatisfied with the deal on that account. After receiving the letter from Philburn, Hanson attempted to make sale to others, but not succeeding, decided to buy it for himself. He made an arrangement to borrow of the defendant Covell sufficient money to cover the purchase price and take a deed in Covell’s name, Covell to give a contract back to Hanson. Thereupon the deed in question was filled out in the name of Mark B. Coveil and delivered to him, the question of fact being whether at the time it was executed by the Guilfoyles the space for the name was left blank.

The case was tried upon the theory that if in fact the name of the grantee was left blank, and the deed delivered to Hanson, it conferred authority upon him to fill in the name of a grantee and deliver the deed. But the circuit judge, while neither affirming nor denying the correctness of this rule of law, determined the case, first, upon the facts, and second, upon the ground that even if the deed was delivered in blank, and if in such case a filling in of the name of the grantee by the agent of the grantor is authorized, yet that the rule did not go so far as to justify the agent himself becoming the purchaser, and inserting his own name, or the name of one who acts for him, in the deed.

It was conceded by the testimony on both sides that at the time the name of Mark B. Coveil was written in this deed there were at the place where his name was made to appear traces of a name which had once been written there, which name was that of Joseph P. Philburn. The defendants’ testimony tended to show that this name was crossed out before the deed was signed by William Guilfoyle and complainant. The complainant’s testimony, on the other hand, is to the effect that when this deed was executed, the name of Joseph B. Philburn was inserted as the grantee in the deed, and that it was executed in that form and left with the defendant Hanson for delivery upon payment of the balance of the purchase price.

This testimony is corroborated very strongly by the receipt given by Hanson at the time, which read as follows:

“Hart, Mich., Aug. 26, 1905.

“Received of Wm. Guilfoyle warranty deed covering S. E. ¼ of N. W. ¼, Sec. 15 N., R. 16 W., to be delivered to Joseph P. Philburn on receipt of $1,050.00 for said Guilfoyle, on or before March 1st, 1906. It is hereby understood and acknowledged that Mr. Guilfoyle has received $100.00 on said premises this day.

“ J. D. S. Hanson.”

The defendant’s clerk testifies that after receiving the letter from Philburn stating that he would not take the land, she removed the marks on the deed which occupied the space now occupied by the name of Mark B. Covell by the use of acid, after first using an eraser or knife. Her statement as to the condition of the deed at that time was that the name previously appearing there had been obliterated by heavy marks. If this were true, it would not necessarily follow that they were made prior to the execution of the deed. But examination of the deed under a strong glass'fails to disclose the horizontal marks which would appear if an attempt had previously been made to mark off the name of Philburn, while the upright letters which were used in writing his name do appear clearly, even after the deed had been subjected to the use of acids.

In view of these circumstances, and of this sharp conflict in testimony, we are not disposed to disturb the findings of fact of the circuit judge. He had the better opportunity to judge of the credibility of witnesses derived from noting their appearance on the stand. We see no reason to disturb his findings.

The decree of the court below will be affirmed.

Grant, C. J., and Ostrander, Hooker, and Oar-renter, JJ., concurred.


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    MUIR v. WAYNE CIRCUIT JUDGE.
    Arrest — Civil Process — Capias ad Respondendum — Affidavit —Sufficiency.
    In an action for fraud by means of false representations an affidavit for a capias which shows the representations in detail, that they were made by defendant to plaintiff personally, and that plaintiff had personal knowledge of the falsity of sufficient of them to authorize the issuance of the writ, is sufficient, though the falsity of some of the representations is not stated upon the personal knowledge of the plaintiff.
    Mandamus by Erwin T. Muir to compel Flavius L. Brooke, circuit judge of Wayne county, to vacate an order holding to bail, and denying a motion to quash a writ of capias ad respondendum.
    Submitted January 21,1908.
    (Calendar No. 22, 670.)
    Writ denied January 31, 1908.

      May & Dingeman, for relator.

      Frank D. Andrus, for respondent.
   Moore, J.

The following statement is taken from the brief of counsel for relator:

“Relator was the owner of a business known as the Commercial Exchange, which was engaged in the business of furnishing credit ratings to its members, and also doing a general collection business in the city of Detroit. On the 25th day of October, 1907, he sold this business and the furniture and fixtures used in connection therewith, to one Aggie Rodger, of the city of Detroit. On December 4, 1907, suit was instituted by the said Aggie Rodger against relator for damages, she claiming the relator had made certain misrepresentations in connection with the sale, and an order, was entered holding relator to bail in the sum of $500 and a writ of capias ad respondendum issued, based solely upon the affidavit of the said Aggie Rodger. Relator was taken into custody and released on bail, and afterwards appeared specially and made a motion to vacate the order holding to bail and quash the writ of capias, for a number of reasons which may be briefly summarized as follows:

“ 1. The affidavit for the writ does not state in terms that the matters therein stated are upon the personal knowledge of the affiant.

“2. The falsity of the alleged representations are not stated upon the personal knowledge of the affiant, nor does it appear that they are within her personal knowledge, but on the contrary are conclusions based upon hearsay.

“ 3. The affidavit is vague and indefinite and insufficient to authorize the issuance of the writ.

“ This motion was denied by the circuit judge, and relator seeks by mandamus to vacate the order and compel the granting of the motion.”

The whole question relates to the sufficiency- of the affidavit. It sets out in detail the representations that were made. They were all made by defendant to plaintiff personally. After she purchased the business plaintiff went into possession thereof and conducted it for a month. While the falsity of some of the alleged representations is not stated upon the personal knowledge, or within the personal knowledge of the plaintiff, many of them are shown to be within her personal knowledge, and the falsity of sufficient of them is so made to appear to authorize the issuance of the writ. Paulus v. Grobben, 104 Mich. 42. The affidavit is a very long one and it would profit no one to set it out in full. A reading of it satisfies us that the circuit judge was right in holding the affidavit showed on its face that plaintiff had personal knowledge of sufficient of the material facts stated in said affidavit to justify the issuance of the writ.

Writ of mandamus is denied, with costs.

Grant, C. J., and Blair, Carpenter, and Mc-Alvay, JJ., concurred.


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    FOSS v. BROWN.
    1. Appeal and Error — Question Considered — Refusal of Non-suit.
    Where permission to take a voluntary nonsuit was denied plaintiff and a verdict for defendant directed, and plaintiff on writ of error asks no other relief than reversal of the judgment and a new trial, the court will consider the case as one pending and determine the question whether the trial court was in error in directing a verdict.
    2. Breach of Marriage Promise — Evidence—Sufficiency.
    Where plaintiff in an action for breach of promise to marry confesses to the establishment of immoral relations with defendant, but it cannot be said as a matter of law that her testimony does not tend to prove the mutual promises relied upon, made when she was legally competent to contract, the case should be submitted to the jury.
    3. Same — Contract—Competency—Parties—Meretricious Relations.
    It cannot be said as a matter of law that persons otherwise competent may not contract marriage while sustaining immoral relations with each other.

      Error to Wayne; Donovan, J.
    Submitted January 22, 1908.
    (Docket No. 122.)
    Decided January 31, 1908.
    Assumpsit by Florence Foss against David A. Brown for breach of promise to marry. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      Edward S. Grece ( Thomas P. Penniman, of counsel), for appellant.

      E. T. Berger, for appellee.
   Ostrander, J.

The action is for damages for breach of contract to marry. Plaintiff was a witness and the only witness called in her behalf. Her examination having been concluded, her counsel stated that there was further evidence “ to show the fact of defendant’s' frequent calls upon the plaintiff during the years as testified by her, and the court stated that could be as well shown on rebuttal, and plaintiff having rested her case,” counsel for defendant asked for a directed verdict in his favor. Decision was reserved and defendant was sworn as a witness in his own behalf. Whether his cross-examination was concluded is not clear. Court adjourned for the day and the next morning a verdict was directed for the defendant. A motion was made to vacate the verdict for the reason (and the record seems to supply the necessary facts) that counsel for plaintiff, before the verdict was directed, had not only announced the purpose to discontinue the case but had actually filed a praecipe in that behalf. This motion having been overruled and a judgment for defendant entered, plaintiff brings the case here on writ of error. In the brief it is said that two assignments of error, the first and the last, are relied upon. These are—

(1) “ The court erred in charging the jury to render a verdict for the defendant.” .

(2) The court erred in overruling the plaintiff’s motion to vacate and set aside the verdict rendered by the jury, in favor of the defendant, by the order of the court for reasons set up in said motion.”

It is further stated in the brief that the questions are:

“(a) Was there evidence introduced by the plaintiff which she had the right in a court of justice to have submitted to the jury ? and (6) Was it not the province of the jury to decide from all the facts whether there was an agreement to marry between the plaintiff and defendant ?”

The action of the court in refusing to recognize the right of plaintiff to discontinue her suit is not discussed or referred to. This court is asked to reverse the judgment and to grant a new trial and for no other relief. In consequence of the positions so taken by counsel for the appellant, the brief of counsel for appellee is silent upon the subject of the effect of the voluntary discontinuance. When discontinuance was proposed, the court said to counsel, “You will, not discontinue the case,” and peremptorily refused counsel for plaintiff permission to be heard. Under the circumstances, we may assume that the right to discontinue, regularly, was denied. The matter, then, stands in this way: Plaintiff’s case was, so far as it was possible to do so, discontinued, notwithstanding which a verdict and judgment for defendant were entered by order of the court. To treat the case as withdrawn from the attention of the trial court except, perhaps, for the purpose of taxing costs, involves a refusal to treat it as a pending case, judgment in which may be reversed and a new trial granted. On the other hand, it may be said, and it is claimed by counsel, that, the right to discontinue having been denied, the court may consider whether the trial court was in error in directing a verdict, We are of opinion that we should, in view of all the circumstances, consider the case as one pending and determine the question presented. It would profit no one to set out the testimony. We are required to give to plaintiff’s testimony the construction most favorable to herself. It is lacking in definite statements, in precision, as to dates and circumstances. She confesses to having established relations with defendant (he denies this) as early as the winter of 1899-1900, which were immoral and illegal and which continued until some time in 1904. But it cannot be said, as matter of law, that her testimony does not tend to prove the mutual promises relied upon, made when she was legally competent to contract, or that persons occupying the relations described by her may not contract marriage with each other. We feel constrained to say that the case should have been sent to the jury.

The judgment is reversed, and a new trial granted.

Grant, C. J., and Montgomery, Hooker, and Carpenter, JJ., concurred.


text:
    GEDDIS v. WAYNE CIRCUIT JUDGE.
    1. Injunction — Restraining Suit at Law — Effect.
    An injunction staying proceedings at law in a pending case does not affect the jurisdiction of the law court, nor affect the validity of the judgment therein obtained in ■ disobedience of the injunction.
    2. Continuance — Propriety—Injunction Against Proceeding.
    The existence of an injunction restraining proceedings at law is good ground for granting a motion for a continuance of the suit at law in the absence of any good reason for refusal to postpone the trial.
    3. Mandamus — Propriety—Refusal of Continuance.
    Mandamus is not proper to review the action of the circuit court in denying a motion for a continuance, the question-being reviewable on error to the final judgment.
    4. Same — Interlocutory Motions.
    This court does not review an interlocutory motion on mandamus when the court does not refuse to proceed with the case, if there is another adequate remedy, though mandamus may be resorted to sometimes if the court does so refuse.
    Mandamus by George Geddis to compel Joseph W. Donovan, circuit judge of Wayne county, to vacate an order setting a case for trial.
    Submitted January 7, 1908.
    (Calendar No. 22, 594.)
    Writ denied February 3, 1908.

      Flynn & Sevald ( C. K. Latham, of counsel), for relator.

      William F. Bauhie and May & Dingeman, for respondent.
   Hooker, J.

Relator’s petition shows that he is defendant in an action at law pending in the circuit court for the county of Wayne, wherein one Johanna B. Dondero, as survivor of herself and husband, Antonio B. Dondero, is plaintiff. The action is upon a breach of covenant in a deed. Defendant therein-is complainant in a suit in chancery, commenced in the county of Oakland after the action at law aforesaid was begun, for the purpose of reforming said deed in regard to the description of the premises. After a hearing of the application for the same, upon an order to show cause, and the filing of the required bond, an injunction was issued restraining said Johanna B. Dondero from further prosecuting her said action at law until the further order of said court of chancery, or during the pendency of said suit, which injunction was duly served upon her, and process was duly served in said chancery cause.

In disobedience of said injunction, she has caused said action at law to be noticed for trial and has obtained an order from the circuit court for the county of Wayne setting the same for trial upon November 20, 1907. Upon application of relator, a judge of said court has refused to vacate said order. Relator has applied for an order to compel such action.

The return shows that the request of defendant to have the trial deferred, — which was equivalent to a motion for a continuance, — made in opposition to the motion to have the case set down for hearing, was accompanied by a showing of the pendency of the chancery case and the injunction. It must be conceded that the injunction did not affect the jurisdiction of the Wayne circuit judge, as it is elementary that an injunction staying proceedings at law operates in restraint of the party, and is in no sense a prohibition upon the action of the legal tribunal, and the current of authority supports the proposition that a judgment of such court is not void because of the disobedience of the injunction. See 1 High on Injunctions (4th Ed.), §§ 46, 103, and cases cited; Burpee v. Smith, Walk Ch. (Mich.) 327.

Upon the somewhat analogous question involving actions against a receiver without leave of the court appointing the receiver first obtained, it is held that a judgment at law is not void, while many cases hóld that leave is unnecessary. Especially has this been held in negligence cases. See Smith on Receiverships, p. 189, citing Hackley v. Draper, 60 N. Y. 88; St. Joseph, etc., R. Co. v. Smith, 19 Kan. 225; Mulcahey v. Strauss, 151 Ill. 70; Kinney v. Crocker, 18 Wis. 74; Town of Roxbury v. Railroad Co., 60 Vt. 121; Lyman v. Railroad Co., 59 Vt. 167; Allen v. Railroad Co., 42 Iowa, 683. See, also, Gluck & Becker bn Receivers, p. 83. In Platt v. Woodruff, 61 N. Y. 381, it is said:

“While the common-law and equity courts were separate tribunals in this State, a court of law did not hold a party to a suit pending in it who should proceed in his suit in violation of an injunction of a court of chancery as even irregular in his practice, but left him to the sufficient power of that court to vindicate its own authority. (Grazebrook v. McCreedie, 9 Wend. [N. Y.] 437, 442.) And now that law and equity are separately administered by the same tribunal, each judge having equal power, as well to grant as to vacate an injunction order, it does not follow that a judge holding a purely law court is divested of his jurisdiction to proceed in an action pending in it, because of an order made by another judge of the same court, in the exercise of his equity powers, forbidding a party in a law suit from further prosecuting his action. A judge at circuit would, doubtless, if the existence of such an order should be properly brought to his knowledge, heed it; and would not, unless under very extraordinary circumstances, permit a party to disregard it. It does not appear in this case that the judge holding the circuit was informed of the existence of this order; or, being informed, he did not make it a condition of his hearing the cause that the bank should not proceed to judgment in it until the order should be vacated; but, whether he knew or did not know that such an order existed, he had jurisdiction of the subject-matter and of the parties, of which he was not ousted by an order directing the bank to refrain from the further prosecution of its actions. That order was not operative upon the court, but upon the bank, who, unless purged of its contempt, might have been compelled to relinquish all advantage of its proceedings subsequent to the service of the order. The judgments were not void.”

In Burke v. Ellis, 105 Tenn. 707, it was said:

“But, independent of this view of the matter, inhibitions by the court appointing a receiver are not directed against other courts, as such, to prevent such other court from hearing any cause brought before it in the usual manner, but are intended to operate against individual suitors and to restrain them from instituting and prosecuting such suits. In case the injunction or inhibition is unheeded, the proper remedy is to apply to the court issuing the injunction or inhibition to stop the suitor in the different court from proceeding with his suit, the process being one in the nature of a contempt proceeding against the individual, and the application in the court to stay its own proceeding is ineffectual unless the court shall feel itself bound as a matter of comity to recognize the prior and better right of the court having charge of the receiver and property.”

See, also, Grossman v. Davis, 117 Ill. App. 354.

In Maclean v. Wayne Circuit Judge, 52 Mich. 257, it was said by Cooley, C. J.:

“ It is a familiar principle that when a court of competent jurisdiction has become possessed of a case, its authority continues, subject only to the appellate authority, until the matter is finally and completely disposed of; and no court of co-ordinate authority is at liberty to interfere with its action. The principle is essential to the proper and orderly administration of the laws; and while its observance might be required on the grounds of judicial comity and courtesy, it does not rest upon such considerations exclusively, but is enforced to prevent unseemly, expensive and dangerous conflicts of jurisdiction and of process. If interference may come from one side, it may from the other also, and what is begun may be reciprocated indefinitely. The country has witnessed some such conflicts in which Federal and State courts of co-ordinate powers have unguardedly or unadvisedly undertaken to hamper or restrain each other’s action; and the mischiefs of which such cases are suggestive áre quite as likely to arise when courts existing as part of the same system intrude with their process upon each other’s authority.”

It is, however, a circumstance bearing upon the question of a right to have the case continued, which was in substance the question before the circuit court. The case before us is, therefore, practically, whether the court erred in refusing a continuance. We have no hesitation in saying that the return indicates that the court was in error in his opinion of the law governing his action, and that no good reason appears for his refusal to postpone the trial. See People, ex rel. Ives, v. Muskegon Circuit Judge, 40 Mich. 63.

The instances are rare where a court may not properly delay á case which the plaintiff has been enjoined from prosecuting, but we are not sure that circumstances may not exist, such as extraordinary laches, or some exigency so obvious as to justify a refusal to continue a case which a plaintiff may be willing to take the risk of pressing to trial.

Whether it is such an abuse of discretion as would be ground for a reversal of a possible judgment, on error, we need not determine, as the case is not here on error, but mandamus. If there has ever been an instance where we have compelled a circuit judge to grant a motion for continuance or any other kindred motion, on mandamus, it has not been brought to our attention. Such a practice would be at variance with a long line of cases, in which we have denied relief on the ground that a writ of error or some other adequate remedy existed. It is no new thing to review the denial of motions to continue after judgment upon writ of error or otherwise. People, ex rel. Dickinson, v. Sackett, 14 Mich. 321; People v. Anderson, 53 Mich. 60; Bussey v. Bussey, 71 Mich. 504; People v. Evans, 72 Mich. 367; Winklemeir v. Daiber, 92 Mich. 621; Mills v. McLeod, 94 Mich. 627; McNaughton v. Evert, 116 Mich. 141; Schurtz v. Kelley, 119 Mich. 383; Leach v. Railway, 125 Mich. 373; People v. Marrs, 125 Mich. 376; Jones v. Wayne Circuit Judge, 141 Mich. 408.

It is the settled rule that we will not review an interlocutory motion on mandamus when the court does not refuse to proceed with the case, if there is another adequate remedy, although it may be resorted to sometimes if it does so refuse. See Michigan Mut. Fire-Ins. Co. v. Wayne Circuit Judge, 112 Mich. 270; St. Clair Tunnel Co. v. St. Clair Circuit Judge, 114 Mich. 417; Dages v. Sanilac Circuit Judge, 122 Mich. 490; Poupard v. Judge of Recorder’s Court, 129 Mich. 662; Steel v. Clinton Circuit Judge, 133 Mich. 695; Cattermole v. Ionia Circuit Judge, 136 Mich. 274; Skutt v. Kent Circuit Judge, 136 Mich. 477; Hopper v. Livingston Probate Judge, 137 Mich. 124; Valley City Desk Co. v. Kent Circuit Judge, 139 Mich. 194; Jones v. Wayne Circuit Judge, 141 Mich. 408, and cases cited; Sharp v. Montcalm Circuit Judge, 144 Mich. 328; Hitchcock v. Wayne Circuit Judge, 144 Mich. 362; Cosgrove v. Wayne Circuit Judge, 144 Mich. 682; City of Flint v. Genesee Circuit Judge, 146 Mich. 489; Reynolds v. Mecosta Circuit Judge, 148 Mich. 470.

It follows that the writ must be denied and it is so ordered, with costs to respondent.

Grant, C. J., and Blair, Moore, and McAlvay, JJ., concurred.


author: McAlvay, J.

text:
    TILLOTSON v. GREGORY.
    Deeds — Building Restrictions — Construction.
    On a bill to restrain the erection of a building in violation of certain alleged building restrictions in defendant’s deed, and in violation of the general plan of improving the subdivision in which the parties’ lots were located, evidence examined, and held, that defendant’s deed contained no restriction with respect to the erection of a dwelling to be occupied by more than one family, and that the general plan as to building not nearer than 10 feet from the side lines of the lots had been abandoned by all parties, including complainants.
    Appeal from Wayne; Mandell, J.
    Submitted June 14, 1907.
    (Docket No. 99.)
    Decided February 15, 1908.
    Bill by Frank F. Tillotson and others against Frederick E. Gregory to restrain the erection of a dwelling. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      John M. Corbin and Barbour & Field, for complainants.

      Lodge & Brown, for defendant.
   McAlvay, J.

Certain parties owning land in the city of Detroit as tenants in common transferred the title of the same to one of their number in trust for the purpose of platting and selling. It was platted as Chandler Avenue Subdivision and the plat recorded April 17, 1890. This subdivision contained 98 lots, 94 of which front on Chandler avenue; two have been taken for a street. At the time of commencement of this suit 48 of these lots had been built upon, leaving 46 vacant lots on the avenue. Complainants, who are owners of certain houses and lots on this avenue, some adjoining the property of defendant, which is lot 94, filed their bill of complaint for the purpose of restraining him from erecting a four-family flat building upon this lot, contrary to what is claimed to be the restrictions and covenants contained in the deed to his grantors and to the general and uniform plan and scheme of development adopted for the benefit of all lots in this plat between Woodward avenue and Brush street. The decree of the circuit court denied complainants the relief prayed for, and dismissed the bill of complaint. Complainants have appealed.

The lots on this subdivision each have a frontage of 50 feet on Chandler avenue which extends from Woodward avenue east to Oakland avenue, a distance of one-half of a mile. Complainants allege that Chandler avenue is one of the choicest residence streets in Detroit; that the lots were sold under a certain general plan of improvement and were purchased by them and their homes were erected with the understanding that this was a restricted district; that on the half of said avenue from Brush street east the restrictions were that the property should be used for residence purposes only, the residences to be of brick, stone, or wood, at least two stories high, to cost not less than $2,500; that a space of 10 feet should be left between the building and the lot line on each side and 20 feet between the building and the street line of Chandler avenue; that on the half of said avenue from Brush street west the restrictions were the same, except that the residences were to be of brick and stone and to cost not less than $4,000; that with few exceptions all of the conveyances from the person platting the subdivision contained one or the other of these restrictions, which were made for maintaining uniformity in the character of the dwellings and the building line of the street, with uniform spaces between the dwellings; that a reasonable construction of these restrictions allowed but one dwelling suitable as a residence for one family only upon each lot.

The contentions of . the defendant which we consider necessary to discuss are: That no general, definite, uniform plan existed in this subdivision; it was only to preserve the territory for residence purposes; that the plan as claimed in the bill of complaint has been abandoned and waived and the restrictions violated by complainants and other lot owners there. The first transfers after platting were all made to purchasers by Edwin B. Robinson, the trustee.

The restrictions claimed by complainants to be practically uniform in this subdivision and specified in the transfers are that these lots were to be used for residence purposes only, that the building line was fixed 20 feet back from the street line, and the buildings were to be so erected as to leave a space not less than 10 feet between the buildings and the lot side lines; that the houses were to be of a certain size and construction and of a cost according to location not less than #2,500 and #4,000, and to be occupied by one family.

There were no restrictions in the transfers by his co-tenants to Mr. Robinson, and none were contained in the plat. In none of the deeds to purchasers was there any express restriction that but one family could occupy each dwelling residence, but it is claimed that such intention is fairly inferred from a construction of all the restrictions contained in the conveyances. An examination and careful tabulation of all these transfers gives the following results:

Thirty lots were conveyed containing all of the express restrictions above recited as claimed by complainants. Thirty-two lots were conveyed with restrictions providing for dwellings or residences of the kind and cost above stated, to be erected 20 feet from the street line. Seventeen were conveyed without restriction as to the character of the building to be erected thereon, the restriction being, “ It is also agreed that no building or dwelling house shall be erected nearer than 20 feet from the Chandler avenue line.” Ten were conveyed without any restrictions. Five were conveyed for residence purposes only, ‘ ‘subject to the building restrictions now existing on said subdivision.” Three were conveyed in pursuance to contract, the terms of which are not given. One was conveyed under restrictions to build a residence costing $3j500 with 10 feet space on each side between the building and lot line. Forty-nine, being more than one-half of the number of lots above conveyed, have no restrictions as to the spaces between the buildings.

These variations in the conveyances as indicated in the several groups extend to lots in every part of the subdivision. From the record it appears that the lots of this subdivision fronting on Chandler avenue are each 50 feet wide. Ninety-four of the lots front upon this street. Forty-eight have been built upon. Thirty-five of these 48 houses are more than 30 feet wide; the size required under the restrictions claimed. Fourteen houses are more than 40 feet wide. Five are 44 feet wide and over.

Of the complainants in this case, Tillotson’s house is 37.3 feet wide; Postal’s is 40.5; Smith’s is 43.5; Niles’s is 43.5; O’Leary’s is 37.8. All of the houses built on the first two blocks exceed 30 feet in width. A double house 44.9 feet wide was built without objection on lot 72, conveyed without restrictions. A double house 46.5 feet wide was built without objection on lot 31, in the deed to which the only restriction was that no building or dwelling shall be built or erected nearer than 20 feet to the Chandler avenue line. Two houses each 20.2 feet wide were erected on lot 32 under same restriction as 31 without objection.

From the evidence in the case it is clear that whatever restrictions may have been in some of the déeds as to distances buildings should be placed from side lines of the lots the concession in complainants’ brief that there has not been a general compliance with it is amply supported by the evidence.

Complainants ask that defendant be enjoined from building a dwelling house or flat two stories high and to be occupied by himself and three other families upon the theory that there was a general restriction, binding upon the original purchasers and their grantees, that only a single dwelling house designed for one family should be built upon each lot and that defendant was bound by the restrictions in the deed to his grantors, and had notice of the general plan.

The question to be decided is not whether the restrictions claimed by complainants would be valid, but whether any such general restrictions existed as to this subdivision, and particularly whether there was any restriction that the dwelling houses erected on each lot were to be occupied by but one family. The restriction in defendant’s deed was that the property was to be used for residence purposes only, the building to be erected at least 20 feet from the street line and 10 feet from each side line, and to be stone or brick, and to cost not less than $4,000. All these restrictions defendant agrees to comply with except as to distances from the side lines (which complainants concede has been abandoned) and the building is to cost about $14,000. The proofs do not support complainants’ contention. A careful reading of the tabulation made of the conditions in the deeds will not disclose a general, uniform, and certain plan of improvement, except that these ' lots were to be used for residence purposes, as distinguished from business purposes, and the building line was to be 20 feet from the street line, and the houses were to cost not less than $2,500 and $4,000, according to location. There is no specific restriction in any deed that but one family shall occupy each house.

The practical construction of these restrictions given by complainants and others who have built upon these lots is also against complainants’ claim.

It is urged that between Woodward avenue and Brush street, within which part of this plat defendant’s lot is situated, the restrictions claimed exist in the conveyances and have been practically complied with by the purchasers and builders. The proofs do not warrant this claim. In these two blocks lots were sold without any restriction at all; without restriction as to the use of the property and without uniformity as to distances from buildings to side lines. Although all of them were restricted as to cost of buildings to be erected, and distance from street line, there is not a house erected on these two blocks which does not exceed 30 feet in width, including those of complainants.

The case at bar, like James v. Irvine, 141 Mich. 376, which it much resembles, can be distinguished from Harris v. Roraback, 137 Mich. 292. In the latter case all of the conveyances but one contained the restriction “ that the said second party, his heirs and assigns, will not occupy said premises except for one dwelling house to each lot.” This court held that the intention of the parties was ‘ ‘ that no house except one planned and designed for a single dwelling should be erected.” The restriction in defendant’s deed or in any of the other deeds before us in this case will not bear any such construction.

That restrictions of the kind claimed by complainants may be created and held valid is not disputed. Citation of authorities upon that question is therefore not necessary. The question before us is a construction of these conveyances and a consideration of the evidence. Our conclusion, as already indicated, is against complainants.

The decree of the circuit court dismissing the bill of complaint is affirmed, with costs.

Grant, C. J., and Montgomery, Hooker, and Moore, JJ., concurred.