text:
    MADILL v. CURRIE.
    1. Libel and Slander — Privilege—Trial—Charge—Embezzlement.
    In libel for publication of language imputing to plaintiff the embezzlement of county funds, it was error to charge the jury that defendant, a county supervisor, was not privileged, if the jury could find he imputed to plaintiff a crime, where the objectionable charge was contained in a report made to the public by a letter prepared by defendant as chairman of . an investigating committee duly appointed to investigate the accounts of the county treasurer.

      2. Same — Qualified Privilege.
    It is the occasion that determines the question of privilege, not the language employed.
    3. Same.
    And a report of such chairman upon a matter of public concern, under circumstances showing that the public were interested in knowing the true state of facts, was qualifiedly privileged.

      4. Same — Burden of Proof — Justification—Criminal Charge.
    Defendant was not required to show that plaintiff was in fact guilty, by testimony sufficient to prove it beyond a reasonable doubt; a mere preponderance would suffice.

    5. Same — Conflicting Instructions to Jury — Charge—Trial.
    When conflicting instructions are given, one of which is erroneous, it is presumed that the jury may have followed that which was erroneous:
    6. Same.
    That defendant published his report in a newspaper instead of. filing it with the county clerk, does not destroy the qualified privilege.
    7. Same — Implied Malice — Presumption.
    Where words imputing misconduct to another are spoken by one having a duty to perform, and the words are spoken in good faith to those who have an interest in the communication, and a right to know and act upon the facts stated, no presumption of malice arises from the speaking of the words, and therefore no action can be maintained without proof of express malice.
    Error to Bay; Collins, J.
    Submitted November 13, 1911.
    (Docket No. 93.)
    Decided March 12, 1912.
    Case by Leslie D. Madill against Gilbert A. Currie for libel. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Gilbert A. Currie and Julius B, Kirby (L. P. Coumans, of counsel), for appellant.

      James Van Kleeck (Floyd L. Post, of counsel), for appellee.

       Privilege as to proceedings for impeachment or removal of public officers, see note in 25 L. R. A. (N. S.) 455.
      Privilege of official report by executive or administrative officer,, see note in 5 L. R. A. (N. S.) 163.

       Pleading and proving truth as defense in libel suit, see note in 21 L. R. A. 511.

   Stone, J.

This is an action to recover damages for the publication of an alleged libel. Plaintiff is a resident of Midland county, and served as county treasurer for the four years immediately prior to January 1, 1909, and served as deputy county treasurer under his father, John Madill, for the four years immediately prior to January 1, 1905. The defendant is also a resident of Midland county, and at the time of the commencement of the investigation hereinafter referred to was a member of the board of supervisors of that county. The board of supervisors of Midland county employed one Charles H. Winke, a certified public accountant, to audit the books and records of the office of the county treasurer for the period of 11 years immediately prior to January 1, 1909. In his report of this audit, the accountant advised that, on account of no definite records having been kept by the county treasurers relative to the rebate transactions, it would be necessary to have an audit made of these transactions in order to determine whether the amounts taken by the county treasurers for rebated county taxes were correct or not. At various times the board of supervisors had passed what are termed “ rebate resolutions.” These resolutions contained a provision that the purchaser of certain lands therein described (in some instances of State tax lands in designated township), upon which the taxes were delinquent for three years and upwards —■ that is, State tax lands — could pay the county tax thereon by giving 10 per cent, thereof, and instructed the treasurer to charge the remaining 90 per cent, to the contingent fund. The full amount of the county tax would appear to the credit of the contingent fund, but the treasurer, collecting only 10 per cent, thereof, would charge the contingent fund with 90 per cent, rebated, and thus balance the account. In a . number of instances the township boards would adopt similar resolutions and make a like disposition of the township’s portion of the taxes delinquent against such lands, and would instruct the township treasurer to receipt to the county treasurer for the amount of county tax thus rebated. These amounts would be charged against the account of a township, but, of course, would have no bearing on the amounts of credit taken for county tax rebated which would be charged to the contingent fund of the county.

The rebate credits taken during the two terms of John Madill — January 1,1901, to January 1, 1905 — amounted to $2,473.27. Credits for alleged rebating of county tax were taken by the plaintiff during his first two terms— January 1, 1905, to January 1, 1909 — as follows:

In 1905 ........................................§3,088 02
In 1906 ........................................ 1,935 14
In 1907 ________________________________________ 2,225 34
In 1908 as follows: June 30, §1,556 13
Deo. 31, 2,958 63.......... 4,514 76

No records were kept showing either to whom or upon what description such rebates were alleged to have been given. Seven hundred and seventy citizens and electors of Midland county petitioned the board at its January, 1909, session to have these rebate transactions audited, and the board employed said accountant, Winke, to make such audit, and appointed a committee, consisting of the defendant, as chairman, plaintiff, Byron Burch and Robert H. Lane as the other members, which committee was to assist in the investigation and have charge of the same. The board further provided:

“That said expert shall complete his work on said county treasurer’s books within thirty days of the time he is employed and shall file his report with the county clerk within thirty days; and said committee shall also file its report with the county clerk within the same time.”

The accountant filed with the clerk the report of his audit on February 23, 1910, which report showed a shortage of over $2,900 in the accounts of the treasurer’s office for the last five years covered by the audit; that is, during the last year of John Madill’s term and the two terms of plaintiff. Before making his report the accountant requested a meeting of the audit committee. The committee met on February 7,1910, with a stenographer in attendance, and the accountant made known to the committee his findings. The plaintiff, under oath, endeavored to explain the alleged shortage. Some time afterwards, and prior to March 11, 1910, the defendant, who was chairman of .the investigation committee, requested the committee to join with him in making a report, and notified them that, if they neglected or refused to join with him, he would feel at liberty to make a report.

On March 11, 1910, defendant caused to be published in the Midland Sun a statement or report in the words and figures following, as alleged in the declaration:

“To the Citizens of Midland County:
“ Owing to the persistent and almost universal demand on the part of the people of Midland county to know the contents of the certified public accountant’s report on the audit of the rebate credits taken by the treasurers for the eleven years prior to January 1, 1910, I have decided to give out this statement upon my own responsibility.
“The audit committee has been in possession of the facts concerning the findings of the accountant since February 7, and the accountant’s report has been filed with the county clerk since February 22. Inasmuch, therefore, as the time within which we were expressly instructed to report by the board of supervisors has long since expired, I gave notice to the committee at a meeting Saturday evening last, that if a report was not to be made very soon to the public showing the progress made by us to date, I should feel at liberty to make any statement concerning the matter which seemed to me proper.
The report of the audit of the three years of Treasurer Burrington’s work shows that he took credit for rebated taxes to the amount of $1,285.03, while the audits of the records show him entitled to $1,289.30, a discrepancy of $4.27 in favor of the county. Mr. Burrington also filed, in nearly every instance, a statement showing the descriptions sold upon rebate basis and giving the exact amount that Treasurer Burrington charged, not only against the county, but the townships as well, for rebate, and made it a comparatively easy matter to check over his work and verify his credit entries.
“ No statements giving memoranda of rebate transactions occurring during the terms of John Madill or Leslie Madill, are on file in the treasurer’s office.
“ The report of the audit of John Madill’s term shows that no rebating was done by him prior to the several general rebate resolutions passed at the October, 1904, session of the board of supervisors, except in two or three instances under special resolutions to which he referred in taking his credit and the amount of said special credits are correct. Following the adoption of the several rebate resolutions in October, 1904, purchases were made and reported by the auditor general in the months of November and December, upon which the rebates amounted to $1,034.64 and application was actually made to Leslie D. Madill, deputy treasurer, in December, 1904, and the money paid to him for the purchase of certain lands in Lincoln township upon which the rebate amounted to $1,272.34; the application for the purchase of these lands was not made, however, by the county treasurer to the auditor general until January 25, 1905, but the resolution under which this purchase was made became void Januuary 1, 1905. It was admitted by Mr. Madill under oath that it was his practice to compute the amount of rebate for the purchaser at the time the application was made to him and he therefore knew in December, 1904, what the rebate amounted to on the lands, the application for which, he for some reason, withheld until January 25,1905. The treasurer would have no right to give rebate on these purchases if made after January 1, 1905, and the logical and safe course for him to follow would be for him to take credit for the amount of this rebate on December 31,1904, which the accountant says he did do according to the records. The credit taken by L.. D. Madill for John Madill on December 31, 1904, was $2,368.00 and in drafting the report of the committee on settlement with the county treasurer, the written part of which is in Leslie D. Madill’s handwriting and the balance typewritten, reference is made to this credit as ‘ Rebate of ninety per cent, of the county taxes as per resolutions of the board of supervisors, October, 1904.’
“ The total rebate on lands reported as sold by the auditor general in November and December, 1904, and those reported in January and February, 1905, but for which an application was actually made to the county treasurer in December, 1904, under a resolution becoming void January 1, 1905, amounted to $2,306.98. Mr. Madill before the audit committee on February 7, claimed that he was entitled in his term, commencing January 1, 1905, for the rebate on the purchases just mentioned as having been applied for to the auditor general on January 25,1905, under the resolution becoming void January 1,1905, and claimed that the deficit which would then be made in his father’s credit was made up by rebate to Will E. Reardon, W. D. Gordon, Gardner & O’Dell and William Timmons, for purchases made by them in April and May, 1904, under a rebate resolution dated January 20, 1899, and under which no rebating had been done for years, and claimed credit for his father for drain at large which he claimed had always been by him rebated as a county tax, and claimed credit for rebating certain drain special to N. A. Bentley and Winslow Inman amounting to $65.15, also which he claimed he rebated as county tax. Upon computing the amount of rebate claimed as extra credit by L. D. Madill for John Madill to make up the deficit caused by taking out of the December 31, 1904, credit the rebate above mentioned of $1,272.34 in order to have credit for that amount himself, it is found that these extra credits will, if considered, fall hundreds of dollars short of making up this $1,272.00.
“At a meeting Tuesday night, Mr. Madill appeared with counsel, and, upon the advice of his counsel, refused to make any statement. Accountant Winke was sworn as a witness at the request of counsel for Mr. Madill, and from the questions asked by counsel and Mr. Lane, I believe Mr. Madill is going to alter his sworn testimony of February 7, and claim other rebating to have been done by him for his father prior to 1904, but the nature and extent of this claim I have been unable to learn.
“The following is a comparison year by year of the credits taken and the amount that should have been taken as shown by the accountant’s report:
Year Amounts Entitled to Credits Taken
1904 .................$3,413 76...........$3,473 37
1905 ......-......... 3,050 96 ................ 3,088 03
1906 .......... 1,891 22 1,935 14
1907 .... 2,374 39 2,225 34
1908 ............ 1,666 46 1,556 13
$11,296 79 $11,277 90
December 31, 1908, Extra credit taken by ex-Treasurer L. D. Madill and claimed by him before the audit committee to be a balance for which credit should have been taken in the several credits previously taken during the above five years.............-.....-.......... 2,958 63
$14,236 53
“ (This included the $1,272.34).
“ Mr. Madill had taken credit on June 30, 1908, for $1,556.13 and testified that he had on that date taken credit for every cent he believed he was entitled to up to that time, and that each time he took credit upon his books, he took all the credit to which he believed he was entitled.
“ There was comparatively few sales in 1908, after this June credit was taken and Mr. Madill attempts to justify his taking of the credit for $2,958.63 on December 31,1908, by saying that at the close of his term in December, 1908, he checked over the rebate transactions and found that he had cheated himself out of approximately $2,900.00 in computing the rebate credits.
“ The accountant in making this audit construed the rebate resolutions to include no drain taxes, ‘ for reasons: (1) No special taxes, drain or otherwise, are specified in the resolution.’ (2) ‘ A comparison of the audit figures with the credits taken in the aggregate or otherwise, for all the years covered in both periods shows the credit en- • tries made, up to but not including the last entry in the five year period, to be practically correct without drain taxes.’
“ In this connection it may be stated here that not only do the resolutions fail to specify drain taxes, but the board of supervisors’ construction of its resolutions practically defining the same to include the county taxes only, as set forth above, is upon the records.
" Drain taxes are clearly special taxes and the board of supervisors have no more to do with the raising of the drain tax than they have to do with the township taxes and they are reported by the auditor general under head of ‘ Other Taxes.’ Yet Mr. Madill claimed before the committee that he was entitled to credit for all drain at large prior to 1903 tax — since then drain at large has been expressly considered as a township tax — and claimed to have rebated the following special drain:
1905 ' Year’s Tax Tax Interest
March — ffm. Young, 1888,
nw i nw i 25, 16 n 1 e. §66 40 $121 49
July — M. Eider, ; 1904,
s i ne i 12, 14 n 1 w. 66 00 3 30
June — F. G-. Kneeland, : 1904,
s 1 sw £ 16, 14 n 1 e. 24 00 96
April — F. E. Winchell, 1904,
w -J- ne i 8, 18 n 2 e. 16 00 51
1905 Year’s Tax Tax Interest
April — F. E. Winchell, 1903,
sw £ of ne £ 8, 13 n 3 e. $18 00 $2 53
July — Ed. L. Brown, e 4
nw £ 35, 16 n 1 w. 50 75 30 81
July — Ed. L. Brown, s £
ne £ 25, 16 n 1 w 79 75 32 70
$321 53 $188 29
1906 — None.
1907
May — Win. E. Crane, 1905,
n -I of ne £ 30, 16 n 3 e. 54 50 9 10
May — Wm, E. Crane, 1899,
n £ of ne J 30, 16 n 3 e. 48 00 41 76
May — P. G. Kneeland, 1906,
nw £ 33, 14 n 2 w, 14 40 58
$116 90 $51 44
1908
May — D. N. Maxwell, 1906,
seo. 19, 15 n 1 w. 42 31 6 18
May — D. N. Maxwell, 1895,
se £ sw £ 28, 15 n 1 w. 8 77 13 94
May — D. N. Maxwell, 1904,
seo. 19, 15 n 1 w. 41 21 16 07
May — D. N. Maxwell, 1904,
sec. 19, 15 n 1 w. 41 21 11 13
$133 .40 $47 33
“ Relative to the above claims for rebated drain taxes, I will say that he was not authorized by any resolution to make such rebates, and he recognized that fact by claiming to have only rebated the drain special on some occasions and not as the general rule. Not only did he have no authority to rebate the drain tax, but I have personal knowledge of the falsity of his claim in many instances and will produce the proof.
If Mr. Madilbwere to be given credit for all claim that he has made to date to the audit committee he would still be short several hundreds of dollars in his accounts.
“ In taking the credit of $2,958.63 on December 31,1908, which the accountant says he had no authority to take, but which Mr. Madill attempts to justify largely by claiming that on reauditing his books he found about this amount of mistake, it is a significant fact that Mr. Madill admitted under oath that in addition to taking this large credit he was even then obliged to borrow money to settle up with his successor, M[r. Erwin.
“In making this statement, I have been conservative and stand ready at any time to answer any criticism that may be made.”

For this publication plaintiff has brought this action, charging defendant with libel. The case was transferred to the circuit court of Bay county, and upon the trial before a jury and under the charge of the court a verdict of $500 was awarded the plaintiff. The defendant moved for a new trial, and assigned error. The motion was overruled by the court and opinion filed. The defendant excepted to the findings of the court and assigned error.

The assignments of error which we shall have occasion to consider relate to the charge of the court, and certain refusals to charge. In his charge to the jury the court used the following language:

“ Now, gentlemen of the jury, I have come to the conclusion that it is my duty to submit to you the question as to whether or not either of these charges amounted to a charge of embezzlement. And the reason for that I will give you. Now, if the word ‘embezzlement’ had been used, or ‘criminal shortage’ had been used, I could say upon a reading of the article that this was a charge of embezzlement as a matter of law, and could instruct you that embezzlement was charged; but the article does not contain those words, and I am unable to say that the article as a matter of law in these respects charges embezzlement, and upon that point I charge you now, and shall not repeat that charge, although what I shall say later will refer to it and may refer to it more than once. I charge you now this: That if the expression which I first read, ‘ If Mr, Madill were to be given credit for all claims that he has made to date to the final audit committee he would still be short several hundred dollars in his accounts,’ in connection with the other part of the article would indicate fairly, and reasonably indicate and show to those who read that article, to the readers of it, to the public generally, that the article did charge Mr. Madill with being criminally short, or charged him with being an embezzler, if you find that to be so, why, then, the charge of embezzlement — then the article means a charge of embezzlement. Similarly, referring to the statement which I have read: ‘In taking credit for $3,958.63 on December 31, 1908, which the accountant says he had no authority to take, but which Mr. Madill attempts to justify largely by claiming that on reauditing his books he found this amount of credit, it is a significant fact that Mr. Madill admitted under oath that, in addition to taking this large credit, he was even then obliged to borrow money to settle up with his successor, Mr. Erwin ’ — I say taking that statement in connection with the other statements in the article, if it satisfies you, that as read by the people of Midland county at large they would reasonably and naturally draw the inference that embezzlement was thereby intended to be charged, you will treat the article as charging the offense of embezzlement.”

Also the following:

(“The defendant in this case was not privileged to charge the plaintiff in this case, Mr. Madill, with embezzlement. That is not one of the things that privilege protects against, and the result of that is this: That, if you find under the instruction I have given you that the defendant in that article charged Mr. Madill with a crime, then the burden of proof is upon the defendant, Currie, to prove the truth of the charge. The burden of proof is not upon the plaintiff to prove that it is not true, but the burden of proof is upon the defendant, Currie, if that charges a crime, to prove that the charge is true as a defense. On the other hand, as to the statements in the article other than the two which I have read to you in your hearing, I think that the defendant is entitled to the protection and benefit of a privilege as to what was said, and before they can be considered as libelous, before you can treat them as libelous, it must be established that all of the allegations complained of in the article other than the two which I have referred to — that is, to those articles, the plaintiff cannot treat them as libelous, and you will not consider as libelous, unless plaintiff proves that they are not true. To restate it, as to the statements in the articles imputing a crime to Mr. Madill, the burden of proof is upon the- defendant, Currie, to prove these articles are true, as a protection to himself on that account. As to the statements in the article not imputing a crime to the defendant, Currie [plaintiff Madill], as to those articles before they can be considered as libelous, the testimony must satisfy you by its greater weight, or, in other words, the burden of proof is on the plaintiff to show that these statements are not true.”

And in addressing counsel during his charge the court said:

(“You do not contend that if these privileged communications — statements that were untrue — they were still privileged ? ”)

Upon the question of privilege the court further instructed the jury as follows:

(“And I instruct you, as I think I have, already, that this was a privileged communication in view of all the circumstances; that is, that it was a privileged communication excepting those parts of it which the jury find chargéd Mr. Madill with having committed a crime.”)

In regard to the credits claimed by the plaintiff for alleged rebating of drain taxes, the court further instructed the jury:

“ Before he can be charged in any criminal sense, or in any criminal way, the jury must be satisfied beyond a reasonable doubt that he knowingly as well as unlawfully took such credits.”

And the court also charged the jury:

“ I rule that for the purpose of this case those drain taxes were not lawful credits, but, as before stated, that nothing of a criminal nature could be imputed to Mr. Ma-dill in taking these credits, without it appears by the preponderance of proof that they were knowingly and unlawfully taken as credits.”

The court refused to give defendant’s ninth and fourteenth requests to charge, which read, respectively, as follows:

“I further charge you and instruct you that in this case, from all the surrounding circumstances, considering the defendant’s position as chairman of the committee in question appointed by the board of supervisors of the county, and considering the circumstances wherein he attempted to procure a report from the committee and failed, that the article published by him on March 11th, and complained of by the plaintiff, is a privileged communication, and, if it was made in good faith by him, the plaintiff cannot recover in this case.”
“I further instruct you in this connection that it does not make any difference as to whether the statements in the articles were true, or false, if they were made with an honest belief that the same were true, and were made without malice upon the part of the defendant, because the nature of his position was such that he had a right to make the statement, if he believed it to be true, to the public.”

This brings us to the consideration of the second, third, and fourth assignments of error, which begin with that portion of the charge beginning with the words, The defendant in this case was not privileged,” etc., and including the matter embraced in the parentheses in the charge.

A perusal of this and other portions of the charge indicate clearly that the court repeatedly instructed the jury that the defendant could not be privileged in imputing to the plaintiff the commission of a crime. This we do not understand is the law in this State. See Bacon v. Railroad Co., 66 Mich. 169-171 (33 N. W. 181); Schultz v. Guldenstein, 144 Mich. 636-641 (108 N. W. 96), and cases there cited, holding that the occasion determines the privilege.

It seems to have been the view of the learned circuit judge that the language used in the article, and not the ocdasion of its use, would determine the question of privilege. We think there was error in this portion of the charge. The court in denying the motion for a new trial seeks to excuse this portion of the charge by stating that there was neither an occasion of privilege nor a privileged communication involved in the case, and that, therefore, the error, if any, was harmless. We cannot agree with this position. We do not think it can be successfully claimed that this defendant, chairman of an investigating committee, whose appointment by the supervisors was instigated by the petition of seven hundred and seventy electors of the county, in publishing this report to them of a matter of such public concern, should be placed upon the same footing as a libeler publishing some private gossip, scandal, or personal abuse, and, as we shall hereafter more fully state, we think the defendant was entitled at least to the benefit of the rule of qualified privilege. For the learned circuit judge frequently during his charge to direct the attention of the jury to certain portions of defendant’s statement or report, and tell them each time in effect that no accusation or crime could be privileged, not only constituted an erroneous statement of the law, but, in its very nature, must necessarily have impressed the jury that there was something in those statements to which the court wanted them to give special attention, and the natural result of their being told so emphatically and often that such accusations could not be privileged would probably, as it did in this case, result disastrously to the defendant.

The sixth assignment of error relates to that portion of the charge above quoted, as follows:

“Before he can be charged in any criminal sense, or in any criminal way, the jury must be satisfied beyond a reasonable doubt that he knowingly as well as unlawfully took such credits.”

This we do not understand to be an accurate statement of the law. If the burden of proof was upon the defendant in this case, and crime is charged, defendant is required to show plaintiff guilty by a preponderance of evidence only, and not beyond a reasonable doubt. Peoples v. Evening News Ass’n, 51 Mich. 11-17 (16 N. W. 185, 691); Owen v. Dewey, 107 Mich. 67-73 (65 N. W. 8).

The erroneous statement was in no place corrected by the learned trial judge, although he did in another instance charge as follows:

“I rule that for the purpose of this case those drain taxes were not lawful credits, but, as before stated, that nothing of a criminal nature could be imputed to Mr. Ma-dill in taking these credits, without it appears by the preponderance of proof that they were knowingly and unlawfully taken as credits.”

We do not think it can be logically contended that this last statement would correct the former erroneous statement. Upon this subject this court said:

“When conflicting charges are given, one of which is erroneous, it is to be presumed that the jury may have followed that which was erroneous, and the verdict will be reversed.” Grand Rapids, etc., R. Co. v. Monroe, 47 Mich. 152-154 (10 N. W. 179).

Even the use of the words “ clear preponderance ” under some circumstances has been held reversible error. Hoffman v. Loud, 111 Mich. 156 (69 N. W. 231); J. H. Worden Lumber & Shingle Co. v. Railway Co., ante, 74 (133 N. W. 949).

The tenth and eleventh assignments of error complain of the refusal of the court to charge the jury as requested in defendant’s ninth and fourteenth requests to charge, above set forth. A certified public accountant had audited the plaintiff’s books and found a shortage of about $2,900. He also found, and this fact is admitted by plaintiff, that no records or memoranda had been kept by plaintiff to show upon what descriptions, or to what persons rebate had been given. The accountant had requested a committee meeting which was held on February 7, 1910, at which the accountant made known the finding of his audit. The plaintiff endeavored, under oath, to explain the shortages shown, and his explanation involved the names of a considerable number of people to whom he claimed to have given rebates. The time for the committee to make its report had long since expired. The accountant had made and filed his report. The subject-matter was one of public concern and interest. If a shortage existed, the taxpayers of the county were interested in it, and must either recover it from the plaintiff or raise additional taxes upon themselves. Unless a special session were called the board of supervisors would not meet before the following October, but the annual election of supervisors would occur within a month. It is undisputed that the defendant requested the other members to join with him and report their doings. This the other members neglected at least to do. If the committee had joined in making this report, without a question it would have been absolutely privileged under the decisions of this court. Trebilcock v. Anderson, 117 Mich. 39 (75 N. W. 129); Wachsmuth v. National Bank, 96 Mich. 426 (56 N. W. 9, 21 L. R. A. 278).

Under all the circumstances of this case, considering that the defendant was legally appointed and was serving as chairman of the committee to investigate plaintiff’s accounts, and that an accountant hired to audit these accounts found a shortage, as above stated, by reason of a credit taken .on the last day plaintiff was in office, the fact of the failure to keep books to show the truth of the matter in dispute certainly furnished some reason why the public should be apprised of the condition of plaintiff’s accounts and the claims advanced by him. We cannot say that the defendant was not endeavoring to perform a duty he owed to the public to make known to them what the accountant had found in relation to the plaintiff’s accounts, and the progress made to that date by the audit committee.

It is contended that defendant should have filed his report with the county clerk. Does that fact destroy the privilege? We think not. Although his appointment came from the board, defendant’s duty was to represent, and perform a public service for, the citizens and electors of Midland county who were interested in the subject-matter. Upon this subject, see Newell on Slander and Libel, §§ 96, 98, at page 500, § 101 at page 504; Howland v. Flood, 160 Mass. 509 (36 N. E. 482). In Bradley v. Heath, 12 Pick. (Mass.) 163 (22 Am. Dec. 418), Chief Justice Shaw said:

“Where words imputing misconduct to another are spoken by one having a duty to perform, and the words are spoken in good faith, and in the belief that it comes within the discharge of that duty, or where they are spoken in good faith, to those who have an interest in the communication, and a right to know and act upon the facts stated, no presumption of malice arises from the speaking of the words; and therefore no action can be maintained in such cases, without proof of express malice.”

Qualified privilege extends to all communications made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, to a person having a corresponding interest or duty. Bacon v. Railroad Co., 66 Mich. 166 (38 N. W. 181) ; Trimble v. Morrish, 152 Mich. 624 (116 N. W. 451, 16 L. R. A. [N. S.] 1017); Flynn v. Boglarsky, 164 Mich. 513 (129 N. W. 674, 32 L. R. A. [N. S.] 740). The-distinction between the last-cited case and the instant case is very clear. In the Flynn Case the subject-matter was not such as to concern the welfare of the public generally, but in the case at bar the subject-matter was of the utmost interest and concern to the electors of Midland county, to whom the communication was addressed, and we cannot say that the course pursued was not the only feasible and effective manner of reaching them. Years ago this court held that the publication of a report of matters of public interest is privileged, and not actionable unless express malice is proved. See the language of Judge Cooley in Miner v. Tribune Co., 49 Mich. 358 (13 N. W. 773). The careful examination of this record satisfies us that the defendant was at least entitled to the benefit of a qualified privilege, and that the court erred in failing to so instruct the jury, and that such error was prejudicial goes without saying.

Other errors discussed are not likely to occur upon a new trial in view of what we have already said.

For the errors pointed out, the judgment of the circuit court is reversed, and a new trial granted.

Steers, McAlvay, Blair, and Ostrander, JJ., concurred.


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    WESTON v. DUNN.
    1. Appeal and Error — Specific Assignment — Saving Questions for Review — Directing Verdict.
    In assigning error by setting out the charge of the court which contained conclusions of fact as well as of law and, directed a verdict for plaintiff, the defendant’s objection that the court erred in so instructing the jury, was not sufficiently specific.
    3. Boundaries — Navigable Waters — Great Lakes — Accretions to Real Property.
    Where several lots described by number in the government survey lay contiguous to a channel of one of the Great Lakes, and fronted upon the water, which by receding left accretions not divided by the survey among the several lots, and by the recession of the water plaintiff’s lot became separated from the water line so that the meridian line constituting the section line east of his lot passed between the plaintiff’s premises and the shore, leaving the new land adjacent to a lot on another section and range, it could not be held, as a matter of law, that plaintiff acquired no rights by accretion beyond the meridian line, in the adjoining section and range.
    3. Same — Trespass.
    Having possession of the disputed land, the plaintiff was entitled to maintain trespass against defendant who tore down a fence, and entered the close without being able to show title to the premises.
    Error to Mackinac; Shepherd, J.
    Submitted November 13,1911.
    (Docket No. 94.)
    Decided March 12, 1912.
    Trespass quare clausum fregit ia justice’s court by Charles Weston against David C. Dunn and others. The justice certified the case to the circuit court on the ground that the title to land was involved. Judgment for plaintiff on a verdict directed by the court. Defendants bring error.
    Affirmed.

      Henry Hoffman, for appellants.

      James J. Brown, for appellee.
   Ostrander, J.

The action was begun in justice’s court, where plaintiff declared, describing, or attempting to describe, the land trespassed upon by defendants. Defendants pleaded the general issue and gave notice that on the trial they would show that the close in plaintiff’s declaration mentioned and in which the injuries complained of were supposed to have been committed is, and at the time of the alleged trespass was, the close and freehold of defendants’ licensor, and that what was done upon the land was by permission of the owner. Thereupon the cause was certified to the circuit court for trial. Coming on to be tried, plaintiff offered testimony tending to prove his title to lot 2 in section 36, town 42 north, of range 1 west, in Mackinac county, being a part of the south half of the northeast quarter of said section, and his possession of the land since the year 1884. The government plat and original field notes, which were produced, and are here reproduced, show a meandered water front on the easterly boundary of said lot, and that no part of said lot was bounded by the meridian line:

The person, in whose right defendants entered, owned, it was conceded, lot 5, in section 31, in the township next east of the land in dispute; said lot being bounded on the west by the meridian line. The parcel of land in dispute has been formed by accretion or by receding waters and lies east of 'the meridian line and north of the quarter line in section 36, directly north of lot 5 if lot 5 is extended north to the said quarter line. Lot 3, as originally surveyed, does not now touch the water and belongs to neither plaintiff nor defendants’ licensor. There is now a road on the meridian line. Plaintiff’s testimony tended to prove, also, that he built a fence near the quarter line east of the meridian line, a distance of some 30 rods, to the water, cutting off access to his land by cattle from said lot 5. Later he built a fence on the east side of the meridian line road, on the west line of the land in dispute, and it is this fence which defendants tore down sufficiently to drive upon the land in dispute. This is the trespass complained about. Another drawing, known as “Exhibit 2,” was introduced, and is here reproduced:

On it the triangular piece of land in dispute is marked “1.” The water line formerly, indicated by “7,” is now shown by the line “6.” As stated to the trial court, plaintiff’s position is:

“That when plaintiff homesteaded said lot 2 in 1884, and also when he received his patent therefor in 1891, the disputed triangular piece of land was covered with water; that it has since become derelict land by the gradual and imperceptible recession of the water from lots 2 and 3 and 5; that no portion of the land, where the trespass is claimed to have been committed, belongs to lot 5, but to lot 2, section 36, town 42 north, of range 2 west, Mich.; that the principles which govern riparian rights give plaintiff title to the derelict land in dispute, notwithstanding it lies east of the section line running north and south between section 31, town 42 north, of range 1 east, and section 36, town 43 north, of range 1 west; that, at all events, if plaintiff has no title, defendants have none, and plaintiff, being in peaceable possession at the time of the alleged trespass, can recover.”

Counsel for defendants made to the trial court the following statement:

“We admit that plaintiff owns the premises claimed by him in section 86, town 43 north, of range 1 west, Mich., and that in his patent the premises are described as claimed by Mr. Brown, and we also admit that plaintiff was in possession of this triangular piece, marked ‘ 1 ’ on Exhibit 3, at the time of the alleged trespass; but our claim is that this triangular piece, marked lot ‘ 1 ’ on Exhibit 3, belongs to and is a part of lot 5, section 81, town 43 north, of range 1 east, Mich., and is owned by Lydia J. Dunn, wife of defendant David 0. Dunn, and that defendants had a right to enter upon said premises, or said triangular piece of land, as agents of said Lydia J. Dunn. And we also claim that if this triangular piece, marked on Exhibit 3 as ‘lot 1,’ is not a part of lot 5, section 31, town 43 north, of range 1 east, Mich., then the plaintiff is not entitled to recover in this action. My contention is that the legal subdivision of lot 3, section 36, town 43 north, of range 1 west, Mich., cannot extend east and past the principal meridian, and that the triangular piece marked ‘ 1 ’ on Exhihit 3, being attached to lot 5 of section 31, is a part of lot 5. It is admitted by the parties hereto that at the time of the homesteading by plaintiff of the land in question, the water line was at line 7 on Exhibit 3, and east of that line was water and west of it was land, and that now the water line is at line marked figure 6, and west of that line is land and east of it is water. It is also admitted that this triangular piece of land, by accretion, must either belong to lots 3 and 3, section 36, town 43 north, of range 1 west, or lot 5, section 31, town 43 north, of range 1 east, Mich.”

The character of the channel, the distance to the nearest island, is not made to appear. Again, counsel for defendants said, referring, apparently, to the description of lot 5, in his paper title (which does not appear in the record):

“It does not say lot 5 in the northeast one-quarter of the southwest one-quarter. It says lot 5 in section 31. It is not confined by any boundaries at all.- Lot 2 of section 36 cannot go outside of the section.”

The court overruled defendants’ contention, instructed the jury that plaintiff was in possession of the premises, and further said:

“ The court is somewhat uncertain as to whether the plaintiff owned all of them. He did, in my opinion, own the greater part, if not all, of the triangular piece of land. At any rate, they were not owned by the defendants or any one whom the defendants represented; and therefore they were guilty of trespass in going upon the land.”

A verdict was directed for plaintiff for nominal damages. We find in the record no evidence that any question was debated or any point raised by defendants, except the one hereinbefore indicated. It does not appear that defendants preferred any requests to charge. No exceptions were taken to rulings.

In assigning error defendants set out the charge of the court at length with the statement that the court erred in so charging the jury. As the charge or statement made by the court to the jury contains conclusions of fact as well as of law, the assignment is not specific. In the brief in this court the charge is said to be erroneous because:

(1) The declaration does not describe any particular piece of land.
(2) The only trespass declared for is cutting and carrying away growing grass, and the only trespass proved is tearing down a fence, etc.
(3) “ The water shown on Exhibits 1 and 2 is a part of Lake Huron, being one of the channels in the Les Cheneaux Islands, Mackinac county, Mich. The trespass, as shown by the testimony of plaintiff, is the tearing down of-a fence near the quarter line in section 31, and on the east side of the meridian road near the quarter line, but how far from the quarter line, and how far from the meridian, the evidence fails to state. The record is entirely bare of any testimony tending to show whether the waters shown on Exhibit 1 are navigable or not, and whether there is any filum aquae, or middle thread, in the channel shown on Exhibit 1, and if any such middle thread, where the same is, in order that some rule of proportion might be adopted which would give each landowner along the shore his proportionate share of the shore or accretion formed adjacent to the shore in sections 31 and 36. In this respect, testimony fails to show that the point where the trespass was committed would fall outside of the boundaries of lot 5, section 31, town 42 north, of range 1 east, Mich., when lot 5 has been given its just proportion of its share of the accretion in sections 31 and 36, as shown by Exhibits 1 and 2, and the court erred in directing a verdict in favor of the plaintiff, and a verdict on the court’s own motion should have been directed for the defendants.”

Considering the assignment as amounting, in effect, to an averment that it was error for the court to direct a verdict for plaintiff, and that a verdict should have been directed.for defendants for the reason that plaintiff could claim no accretions to his land beyond the meridian line, and that as matter of law the accretion in question is a part of lot 5, we think it without merit.

The admission that plaintiff was in possession of the invaded close disposes of the contention, unless the land in question is a part of lot 5. The only authority referred to by counsel for defendants, which is Grand Rapids Ice & Coal Co. v. Coal Co., 102 Mich. 227 (60 N. W. 681, 25 L. R. A. 815, 47 Am. St. Rep. 516), does not determine the point, having, apparently, no application to the case of lands bordering waters of the Great Lakes. If the rule stated and applied in Blodgett & Davis Lumber Co. v. Peters, 87 Mich. 498 (49 N. W. 917, 24 Am. St. Rep. 175), is followed, it would seem that the owner of lot 3 should not be excluded from access to the water, and, if not excluded, it is plain that the owner of lot 5 has no title to the land in question. We are not advised by counsel concerning the proper rule to be applied.

The judgment is affirmed.

McAlvay, Brooke, and Stone, JJ., concurred. Blair, J., concurred in the result.


author: McAlvay, J.

text:
    RAMEAU v. VALLEY.
    1. Appeal and Error — Trial without Jury — Exceptions — Saving Questions for Review.
    In order to review a finding of facts and law made by tbe circuit judge sitting without a jury, appellant should file exceptions within four days unless further time is granted; and such exceptions should be settled and incorporated in the bill of exceptions. Circuit Court Rule 26.
    2. Justices of the Peace — Attachment—Service of Process-Inventory.
    Judgment in justice’s court against a defendant in attachment served with the summons but not with the writ of attachment or a copy of the inventory is invalid. 1 Comp. Laws, § 730.
    8. Chattel Mortgages — Affidavit—Subscription.
    An affidavit attached to a chattel mortgage, sworn to but not subscribed is sufficient. Act No. 332, Pub. Acts 1907.
    4. Replevin — Demand—Excuse.
    Defendant unlawfully in possession of property under a void execution may not defend against an action of replevin on the ground that no demand was made, where it appeared that he would have refused the demand in any event.
    Error to Muskegon; Sessions, J.
    Submitted November 15, 1911.
    (Docket No. 124.)
    Decided March 12, 1912.
    Replevin in justice’s court by William Rameau against Edward F. Yalley and Ralph Peterson. From a judgment for plaintiff, defendants appealed to the circuit court where judgment for nominal damages was entered against defendant Peterson, and as to defendant Yalley judgment of no cause of action was entered. Defendants bring error.
    Affirmed.

      Turner & Turner, for appellants.

      Alex Sutherland, for appellee.
   McAlvay, J.

This was a replevin case commenced in justice’s court by plaintiff against defendants to obtain possession of a certain ferry scow and cable used to ferry across the Muskegon river, in Muskegon county, where a bridge had formerly been located. From a judgment rendered in justice’s court an appeal was taken to the Muskegon circuit court, where the case was tried before the court without a jury.

The following findings of fact and conclusions of law in the case were made and filed by the court April 18, 1910:

“ Findings of Fact and Law.
“(1) That the defendant, Edward Valley, commenced an action in justice’s court against one Antone Fritz on the 3d day of June, 1908.
“(2) That a writ of attachment and a summons in the ordinary form was issued upon that date returnable upon the 13th of June, 1908. Directed to Antone Fritz the defendant in that cause.
“(3) The return of the officer on the summons shows that it was personally served upon Antone Fritz, but the return of the writ of attachment does not show personal service on Antone Fritz of the writ of attachment or copy of the inventory.
“(4) That the property which is in controversy in this replevin suit was attached by the defendant Peterson upon said writ of attachment. That the defendant Peterson was the deputy sheriff who served the writ of attachment, but failed to serve a copy of the inventory of the property seized by virtue of said writ of attachment.
“(5) That Antone Fritz did not appear before the justice on the return day of the writ of attachment and summons, and judgment was taken against him.
“(6) The case in justice’s court was carried on as an attachment suit, and was so styled in his docket, and the justice and the parties regarded it as an attachment suit, and they supposed the justice acquired jurisdiction of the case by virtue of his seizure of the property under the writ of attachment.
“ (7) That on the 24th day of June, 1908, an execution was issued by the justice and levied upon the attached property by the defendant Peterson, deputy sheriff.
“ (8) That on the 13th day of June, 1908, Antone Fritz gave a chattel mortgage to William Rameau for fifty (50) dollars to secure him for his indorsement of Mr. Fritz’s note, which had been given to one Robert Kempf. The note and debt was not then due. This chattel mortgage had a statutory affidavit attached. The affidavit waB sworn to by Mr. Fritz, but he did not sign it.
“(9) This chattel mortgage covered the same property which had been attached, and it was duly filed the day it was dated in the office of the township clerk in the township where this property was situated.
“ (10) That on the 3d day of July, 1908, this replevin suit was commenced by the plaintiff against the defendants to recover possession of the property which was then in the possession of the defendant Peterson, deputy sheriff.
“ (11) That the defendant Valley was never in possession of the property described in the replevin suit.
“ (12) That the plaintiff Rameau did not make a demand on the defendant Peterson for the possession of the property, before the replevin suit was instituted.”
“(14) That this replevin suit was commenced before Benjamin G. Oosterbaan, a justice of the peace for the city of Muskegon, Mich., and a judgment in favor of the plaintiff was appealed to this court by the defendants.”

Upon these facts the court reaches the following conclusions of law:

“(1) That the justice acquired no jurisdiction of the attachment suit because of the failure of the deputy sheriff to serve a copy of the inventory upon Mr. Fritz, the defendant.
“(2) That there could be no judgment rendered upon the summons, and, even if there was, the chattel mortgage would take precedence over the execution and the lien created thereby.
“(3) That no demand was necessary because the defendant Peterson was a trespasser, and because a demand would have been ineffectual and would have accomplished nothing.
“(4) The affidavit attached to the chattel mortgage was sufficient, though it was not signed.
“ (5) That the plaintiff is entitled to a judgment against the defendant Peterson for six (6) cents damages.
“(6) That the defendant Valley is entitled to a judgment of no cause of action.
“ (7) That as this is an appeal case from justice’s court, under the circumstances of this case, neither party should, recover costs.”

Upon these findings a judgment was later entered in favor of the plaintiff, and against defendant Peterson, for the sum of six cents damages, and against plaintiff in favor of defendant Valley. No costs were allowed to either party. Defendants have brought the case to this court for review upon writ of error. Defendants were apparently satisfied that the findings were sufficiently full and definite, as no amendments to them were proposed.

On April 26, 1910, they filed exceptions to the conclusions of fact and law found by the court, although no time for that purpose had been extended or allowed by the court. Such claimed exceptions were not settled and incorporated in the bill of exceptions. An examination of Circuit Court Rule 26, the provisions of which appellee contends have been disregarded by appellants, shows the practice which must be followed by a party desiring to review errors claimed to have been made by the trial court in the facts found by him and his conclusions of the law thereon.

In the instant case it appears that the requirements of this rule have not been followed in the following particulars:

(1) Such exceptions were not filed within the four days required, and no extension of time was granted.
(2) They were not settled and incorporated in the bill of exceptions.

It follows that the only question before this court is whether the findings of fact support the judgment. Stafford v. Crawford, 118 Mich. 285 (76 N. W. 496); Goulet v. Perry, 123 Mich. 264 (81 N. W. 1072). From the facts found by the court his conclusions of law were:

(a) That the attachment proceedings were invalid.
(b) That the chattel mortgage was valid against the defendant.
(c) That no demand for the property was necessary.

These three propositions will be briefly considered.

The court upon ample evidence found that this was an attachment case in which judgment was rendered, upon which the execution was issued under which the defendant Peterson held the property, also that the defendant did not appear in the case, and that no certified copy of the inventory in attachment was served upon defendant. The conclusion of law that the judgment was invalid was correct. Langtry v. Wayne Circuit Judges, 68 Mich. 451 (36 N. W. 211, 13 Am. St. Rep. 352); Davison v. Davison, 99 Mich. 625 (58 N. W. 637); Cary v. Everett, 107 Mich. 654 (65 N. W. 566).

The material objection by defendants to the chattel mortgage was that it had no affidavit attached (Act No. 332, Pub. Acts 1907), in that, although sworn to, it was not signed by affiant. This court has repeatedly held that such an affidavit is valid. Wynkoop v. Grand Traverse Circuit Judge, 113 Mich. 381 (71 N. W. 640), and cases cited.

Defendant was in possession of the property under a void execution. He knew of the mortgage of plaintiff and his acts in relation to the property at that time, and the notice under his plea in the same case clearly indicates that a demand would have been refused if it had been made. Galvin v. Iron Works, 81 Mich. 16 (45 N. W. 654).

The judgment of the circuit court is affirmed.

Brooke, Blair, Stone, and Ostrander, JJ., concurred.


author: Steebe, J.

text:
    UNION TRUST CO. v. ELECTRIC PARK AMUSEMENT CO.
    1. Foreclosure — Practice—Notice oe Proceedings.
    While notice of filing of a decree of foreclosure and of the steps taken to advertise and sell is required by the rules and practice of the court of chancery, a defendant who had actual notice in season of the sale and report of sale, and whose attorney attended the sale and filed exceptions to the commissioner’s report, was not prejudiced by oomp’ainant’s omission to give formal notice.
    2. Same — Decree—Appeal and Error — Supreme Court.
    Where a decree of foreclosure as filed in the Supreme Court required payment to be made to reinstate defendant under the mortgage on or before January 5th, but was not signed and filed until January 7th, the defendant who was allowed the statutory right to redeem within six months after sale, which did not take place for two months, could not complain.
    3. Same — Taxes—Surplus.
    Taxes paid by the complainant after decree and before sale were properly allowed to complainant, who bid in the premises for the amount due, including them.
    4. Same.
    As mortgagee complainant would be entitled to an equitable lien for such amounts, and to reimbursement out of any surplus arising from the sale of the premises.
    5. Same.
    A party relying on irregularities must complain promptly, or lose his right to relief.
    Appeal from Wayne; Murfin, J.
    Submitted November 20,1911.
    (Docket No. 62.)
    Decided March 12, 1912.
    Bill by the Union Trust Company, trustee, against the Electric Park Amusement Company, Electric City Amusement Company, and Detroit Trust Company, trustee, for the foreclosure of a mortgage. From an order overruling their exceptions to the commissioners’ reports of sale under a decree, defendants appeal.
    Affirmed.

      Bussell, Campbell, Bulkley & Ledyard and E. T. Berger, for complainant.

      Thomas A. E. Weadock, for defendants.
   Steebe, J.

This record presents two appeals taken by three of the defendants, the Electric Park Amusement Company, Electric City Amusement Company, and Detroit Trust Company, from orders of the Wayne county circuit court in chancery overruling defendants’ exceptions to preliminary and final reports of the circuit court commissioner made on the sale of certain premises under a decree of foreclosure by this court. A former opinion in this suit, leading up to.said decree, is reported in 168 Mich. 687 (130 N. W. 306). By that opinion all questions involved up to that time in the protracted litigation were adjudicated, except the matter of compensation for services of the trustee and its counsel. The lower court had made an allowance for such services in the sum of $3,500, without sufficient proof, as this court held. Upon that subject it was said:

“As stated in the opinion and as shown by the record, the court refused to permit the defendants to go into the details of the services, or to clearly separate those which were a proper charge in this suit from those which were not. Under such circumstances, we are constrained to remand the case for further proofs upon this subject. Upon hearing the further proofs, upon this subject alone, a decree may be entered by the circuit court in accordance with this opinion and the further finding of such court.”

Said opinion was filed on July 14, 1910, following which complainant and its counsel filed in due form a written waiver of all claims for allowance of compensation and fees for services, in relation to which alone the case had been remanded for further proceedings, and also filed at the same time a written consent that final decree might be entered in this court according to the opinion rendered, making no allowance in such decree for fees or compensation for services. In the meantime a motion for rehearing had been made by the defendants, heard, and denied on December 8, 1910. After these proceedings, steps were taken to obtain from this court a final decree disposing of the whole matter. On January 8,1911, opposing counsel appeared before the justice who wrote the opinion, each presenting a draft of such form of decree as was desired and such as each side claimed to be entitled to under the opinion. On this hearing before the justice for settling a decree, defendants’ counsel asked, among other things, 30 days’ additional time for payment before sale. Complainant’s counsel strenuously opposed this, contending that there had been constant delays at the instance of defendants, and the matter should now be speedily disposed of. The justice to whom this matter was presented, after hearing both parties, took copies of their proposed decrees, stating to them that on January 7,1911, he would be able to confer with his associates, when a decree would be settled and handed down. This was done, and the decree was signed, entered, and recorded in this court, and became a public record on that date. It was certified from this court on January 10, 1911, and the record, remanded with said decree from this court, was filed with the clerk of the Wayne county court on January 13, 1911. On January 21, 1911, the case was enrolled at the instance of complainant.

The decree, after certain introductory matter, determined, in paragraphs 1 and 2, that the total amount due on the mortgage which was being foreclosed, including all interest, insurance, taxes, and other expenses up to that date, aggregated $100,961.33. Paragraph 3 of said decree provides in part as follows: That the defendant Electric Park Amusement Company shall pay to said complainant all of the sums mentioned in paragraphs 1 and 2 of the decree, with interest at the rate of 5 per cent, per annum, together with costs of the circuit court to be taxed, if not already taxed, “all of which payments shall he made on or before the 5th day of January, 1911,” in default whereof the premises shall be sold at public auction by the circuit court commissioner of Wayne county “at any time after the 7th day of January, 1911.” Said section further provides that, after confirmation of the sale, the commissioner shall pay out of the proceeds the expenses of this suit in the court below and of said sale, “neither party to recover costs in this court.” He is also required to pay all taxes, insurance, assessments, liens, and expenses, with interest thereon, and the principal and interest of the bonds outstanding under the mortgage, amounting to $95,134.48, and “any surplus remaining after the payment of the foregoing sums shall be distributed according to the further order of this court.” Section 8 of said decree provides for reinstatement of the defendant amusement company under the mortgage on payment to the complainant of $20,961.33, with interest from the date of the decree, being the stipulated amount found due at the time of the decree according to the terms of the mortgage, had the total sum not been declared due by reason of default in the payment of an installment, “together with any taxes, assessments, rates, charges, labor or mechanics’ liens, which may be levied or imposed upon said property, which were due and unpaid at the date of the payment, or which may have been paid by the complainant, together with interest on such paid taxes, assessments, rates, charges,” etc., at the rate of 5 per cent, per annum, “and upon such payment and performance the trustee shall discontinue this suit and all proceedings taken hereunder.” The decree contains the usual statutory six months’ time in which to redeem after sale and all other formal matters usually found in a decree of foreclosure.

Pursuant to the terms of said decree, the commissioner proceeded to advertise and sell the property covered by the mortgage. The first publication of foreclosure sale appeared in the Detroit Legal News on January 21,1911, and the sale took place on March 7, 1911. Notice of taxation of costs was served on defendants’ solicitor March 6, 1911. Preliminary and final reports of the sale were filed by the commissioner, the latter on April 5,1911, and exceptions to the same were filed by defendants. These exceptions were argued and overruled and the reports confirmed by the Wayne circuit court in chancery, from which orders this appeal was taken. At the sale the Union Trust Company, trustee, was the only bidder, and the property was struck off to it for $101,903.56, being the amount due by the decree, including $3,027.66 for taxes which complainant paid before sale, but after decree. No formal notice was given defendants’ solicitor of filing said decree, or of the steps taken to advertise and sell. In those respects certain of the proceedings do not strictly comply with the rules, but the record shows he had actual notice, and was fully advised, thereof in ample time to have taken any steps necessary to protect defendants’ rights.

The first published notice of sale was seen by him two days after its issue. He was served with notice of taxation of costs before sale. A person from his office attended the sale and took memoranda thereof. He was notified of the commissioner’s report of sale, and filed exceptions thereto.

Complaint is made of a palpable clerical error in dates found in the decree, wherein it reads that payment is required to be made on or before January 5th, the decree being signed on January 7th. The hearing for settlement of decree was on January 3d, and apparently it was the intention, reckoning from then, to give two days’ time, but the decree not being signed until the 7th, an error in copying, or omission to advance the date, resulted in the inconsistency. According to his own affidavit, this was discovered by the defendants’ solicitor on January 23, 1911. Good faith with the court would suggest calling attention to this when 'discovered, but the worst that can be said of it is that no time for payment before default was specified. We think the decree valid without specifically fixing any date for redemption in the portion of the decree mentioned. The present statute gives right to redeem within six months after sale. The provisions of paragraph 8 of the decree, heretofore referred to, expressly provided that defendants, at any time before the date set for sale of the premises, might, by paying installments in default, and costs, be reinstated under the mortgage, whereupon complainant would be compelled to discontinue this suit, and dismiss all proceedings.

The sale did not take place until two months after the decree was settled. Defendants, whose solicitor participated in settlement of said decree, had two months thereafter to pay up installments and be reinstated before sale, and eight months in which to redeem. Defendants had ample notice and time to redeem. Redfield v. Reid, 148 Mich. 545 (112 N. W. 124).

Exception was taken to the final report of sale and confirmation thereof because a surplus of $3,027.66 was applied in payment of taxes, instead of being reported to “be distributed according to the further order of this court. ” The amount due under the decree was $101,875.92. The taxes paid after decree and before sale were added, and the property struck off for the $104,903.56 total. If complainant had not paid these taxes by May 1st, right of redemption from tax sale would have been lost. We think this was permissible and within the spirit of the decree, which makes special reference to any taxes, assessments, rates, and liens due and unpaid, which may be paid by complainant.

It appears by the supplemental record that on August 24, 1911, the premises were redeemed by Josephine Gaukler, who owned the equity of redemption, having foreclosed a second mortgage on the property, and also obtained deeds from defendants. She paid the full amount required to redeem from this foreclosure to the register of deeds, reserving all rights which she may be entitled to under a final decision in this case. She having acquired the original title of defendants and redeemed the property, this so-called surplus would be hers. It was applied in payment of taxes on her property and redemption of the same from tax sales.

Complainant paying such taxes as mortgagee would succeed to the lien therefor on the land, and in a court of equity would be entitled to reimbursement out of any surplus on foreclosure sale. Noeker v. Howry, 119 Mich. 626 (78 N. W. 669).

The matters complained of are at most irregularities, known to defendants at the time of their occurrence or soon thereafter. A party relying upon irregularities must act with the utmost promptness in order to obtain relief. Goodwin v. Burns, 21 Mich. 211; Lyon v. Brunson, 48 Mich. 194 (12 N. W. 32).

Upon a review of this whole case, we are not only satisfied that defendants had full knowledge of all facts on which claim for relief is based and have no substantial and meritorious grounds of complaint, but the only result of granting the relief they ask would be to further protract this litigation and delay the inevitable collection of money borrowed from, and heretofore found honestly due, complainant. This suit, to foreclose a mortgage and collect borrowed money, was begun on May 13, 1908. Arthur H. Gaukler, president of the defendant Electric Park Amusement Company, examined as a witness in this case, testified as follows:

“Q. I ask you whether or not all this litigation * * * introduced by way of defense to the Schmidt mortgage, by way of defense to the cross-bill and otherwise, to the first mortgage, was directed by you or Mrs. Gaukler in this business for the purpose only of delaying these proceedings as long as possible in coming to their ultimate foreclosure ?
“A. Mr. Radford was given direct orders by me to use every legal means of staving off the final day as long as possible, and he has that order now.”

The voluminous records in this case and numerous technical and dilatory proceedings it discloses indicate clearly that the mandate of Gaukler has been ingeniously and tenaciously followed with marked success.

There comes a time when strife should end in every contention. In the final winnowing of this case we fail to discover any remaining equities for defendants, and think the orders of the circuit court should stand affirmed, with costs.

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


author: Moore, C. J.

text:
    POLLOCK v. DETROIT UNITED RAILWAY.
    1. Corporations — Process—Commencement or Actions — Venue.
    A resident of Missaukee county, claiming to have been injured in Oakland county, into which defendant’s electric railway lines extend, could institute an action in that county, where it maintained stations and ticket agents, though the principal place of business of the corporation was in the county of Wayne. 2 Comp. Laws, § 6454; 8 Comp. Laws, §§ 10022, 10468; Act No. 208, Pub. Acts 1901.
    2, Same — Residence—Jurisdiction.
    For purposes of jurisdiction the corporation is deemed a resident of any county where the road is operated or corporate powers exercised, and of each county where it has an office, agency, or agent for service of process.
    Certiorari to Oakland; Smith, J.
    Submitted November 21,1911.
    (Docket No. 60.)
    Decided March 12, 1912.
    Case by Robert Pollock against the Detroit United Railway for personal injuries. Defendant filed a plea to the jurisdiction. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      James H. Lynch,, for appellant.

      Andrew L. Moore, for appellee.
   Moore, C. J.

The plaintiff is a resident of the county of Missaukee. The defendant is a corporation having its principal office in the city of Detroit. The defendant company owns and operates lines of electric cars, one of which runs through Oakland county, called the “ Flint Division.” On the 12th day of July, 1910, a collision of cars belonging to defendant occurred within the limits of Oakland county. Plaintiff claims he was injured in this collision, and brought suit in the circuit court for the county of Oakland. Service of process was had upon the agent of defendant company at Pontiac. The defendant interposed a plea, raising the question of the jurisdiction of the circuit court for the county of Oakland for the reason that, as neither the plaintiff nor the defendant was a resident of Oakland county, the circuit court for the county had no jurisdiction. The return of the circuit judge states that the city of Pontiac, Oakland county, is the terminus of the Detroit United Railway Companies lines, and that an assistant division superintendent is stationed at Pontiac, that a station is maintained at Pontiac, where tickets are sold, and a station where freight is received and unloaded. Counsel are agreed that “the only question involved in this case is the determination whether, under the state of facts above outlined, the circuit court for the county of Oakland has jurisdiction to try this case.”

Section 2, art. 12, of the Constitution, provides:

“All corporations shall have the right to sue and be subject to be sued in all courts in like cases, as natural persons.”

The contention of counsel for appellant is as follows:

“ This constitutional language, it seems to me, is very plain, and places corporations and natural persons in exactly the same class, and that no extraordinary privileges are granted to corporations, neither are they to be shorn of any rights which belong to natural persons.
“The second subdivision of section 10216 of the Compiled Laws of 1897 reads as follows:
“ ‘Actions of slander, for libels, and all other actions for wrongs, and upon contracts, shall be tried in the county where one of the parties shall reside at the time of commencing such action, unless the court shall deem it necessary for the convenience of parties and their witnesses, or the purposes of a fair and impartial trial, to order any such issues to be tried' in some other county; in which case the same shall be'tried in the county so designated.’ ”

His contention is that the foregoing provisions are not changed by the provisions of sections 10022, 10468, 3 Comp. Laws, and Act No. 208, Pub. Acts 1901. We quote further from the brief:

“The foregoing contains all the statutory provisions bearing upon the question raised in this case. It will be noted that in sections 10468 and 10022 there is no reference to the residence of the corporations. Nor is there any expression from which an inference can fairly be drawn that there is any intent to change the rule of law as laid down in section 10216 to the residence of parties. Corporations, like individuals, must have some place of residence or domicile. A corporation, as a body, is entirely distinct from the individuals composing it. The individual stockholders may live in any or all parts of the world, but a corporation cannot be permitted to be a peregrinating body. It must, like an individual, have a fixed place of residence where it can be found. This is for the interest of those who may wish to deal with the corporation, and, if necessary, to sue it. It must follow that that residence, having been fixed, remains there, and cannot and does not change to suit the whim or convenience of individuals who may care to institute proceedings remote from its place of residence. It has the same rights in this particular as natural persons, under the provisions of our Constitution.”

On the part of the plaintiff it is insisted that the rule which applies to individuals that suit must be brought in the county where one of the parties resides does not apply to suits against steam or electric railways. Neither of the counsel is able to call our attention to a case where the precise question involved here has been passed upon by this court. It becomes important, therefore, to carefully consider the statutory provisions. Sufficient has already been quoted from section Í0216. Chapter 168, 2 Comp. Laws, provides for the incorporation of street railway companies. Section 4 of that chapter (section 6437, 2 Comp. Laws) contains the following:

“Said articles of association may he filed in the office of the secretary of State and thereupon all persons who have subscribed the same and all persons who shall from time to time become stockholders in such company shall be a body politic and corporate by the name specified in such articles and by such name shall be capable of suing and being sued in any court of this State.”

Section 6448, 2 Comp. Laws, authorizes the purchase and operation of other street railways. Section 6454, 2 Comp. Laws, reads:

“Service of every summons, notice, declaration or other legal process may be made on any street railway company by leaving a copy thereof at the business office of the company, with any person in charge thereof, or by leaving such copy with any director or officer of the company in the county where the road of such company is located.”

Section 10468, 3 Comp. Laws, reads in pa,rt as follows:

“ Suits against corporations may be commenced by writs of summons or by declaration, in the same manner that personal actions may be commenced against individuals, and such writ or a copy of such declaration in any suit against a corporation shall be served on the presiding officer, cashier, secretary or treasurer, or any other officer or agent of .such corporation, or by leaving the same at the banking house or office of such corporation, and may be served in any county in the State where the plaintiff resides.”

It was held in Turner v. Tunnel Co., 102 Mich. 574 (61 N. W. 72), that section 10022, 3 Comp. Laws, was supplemental to section 10468, and was intended to facilitate service on domestic corporations. Section 10022 reads as follows:

“Be it enacted by the senate and house of representatives of the State of Michigan, that whenever in any suit or proceeding either in law or equity, it shall become necessary to serve any process, notice, or writing upon any railroad company in this State, it shall be sufficient to serve the same upon any station agent, or ticket agent at any station or depot along the line, or at the end of the railroad of such company, and such service shall be deemed as good and effectual as if made on the officers, stockholders, or members, or either of them, of such company.”

Section 6454, 2 Comp. Laws, is supplemented by the provisions of Act No. 208, Pub. Acts 1901, which read as follows:

“ Whenever in any suit or proceedings, either in law or equity, it shall become necessary to serve any process, notice or writing upon any corporation owning or operating any interurban electric railway in the State of Michigan, it shall be sufficient to serve the same upon any station agent, or ticket agent, at any station or depot along the line of or at the end of the railroad of such company, or upon any conductor upon any of the cars of such company along the line of or at the end of the railroad of such company, and such service shall be deemed as good and effectual as if made on the officers, stockholders or members, or either of them, of such company: Provided, that the modes of service herein provided for shall be in addition to those already in existence: And provided further, that the provision for service.upon conductors of electric railways shall not apply to conductors on electric railways operating within the limits of incorporated cities.”

While, as before stated, this court has not passed upon the question, a like question has been before other jurisdictions. In speaking of railroad corporations in the text of 23 Am. & Eng. Enc. Law (2d Ed.), p. 679, the following language is used:

“ The residence of the corporation is in the State where it was created, irrespective of the residence of the corporators. For purposes of jurisdiction the corporation is deemed a resident of any county where the road is operated or corporate powers exercised, and in each county where it has an office, agency, or agent for services of process ” — citing in notes a very large number of cases.

See United States v. Railroad Co. (C. C.), 49 Fed. 297; The People v. Fredericks, 48 Barb. (N. Y.) 173; Schoch v. Railroad Co., 55 Minn. 479 (57 N. W. 208). In Smith v. Assurance Society, 159 Mich. 167 (123 N. W. 588), Justice Montgomery, speaking for the court, said:

“As a general rule, transitory actions must be brought in the county where service of process must be had, which is usually, although not necessarily, the county of residence of the defendant. * * * The general rule and statutes relating to service of process fix jurisdiction, and undoubtedly the action might be brought in the county of plaintiff’s residence or in any county where service might be had upon a duly authorized agent of the defendant.”

When these provisions are all read and considered together, and the authorities we have cited are applied and are taken in connection with the work done by corporations like defendant, the inference is irresistible that, when one has a cause of action against such a corporation that may be tried in a circuit court, any circuit court of a county in which process may be served may take jurisdiction of that cause of action. Such a construction does not involve any hardship. Process can be served only where the defendant company is enjoying the privilege of its franchise, and is engaged in the business for which it was organized. The instant case is an illustration of the desirability of such a construction. The plaintiff lives in the northwestern part of the lower peninsula. The principal office of the defendant is in the extreme southeastern part of the State. The cause of action, if any, arose in Oakland county. It is fair to assume that the witnesses reside in that county. It would be impossible for the plaintiff to serve process in the county where he lives because the defendant is not in the exercise of any of its franchise rights in that county. It would seem to be desirable, from every point of view, to have the case tried in the county where the occurrence happened that gave rise to the cause. We have no doubt the circuit court for Oakland county has jurisdiction to try the case.

Judgment is affirmed.

Steere, MoAlyay, Brooke, and Blair, JJ., concurred.


author: Steers, J.

text:
    DAVIS v. McCAMMAN.
    1. Equity — Plea—Argument—Pleading.
    Where complainant’s bill to vacate certain proceedings in probate court for fraud was amended, and defendant filed a plea alleging that the issues were tried and determined in probate court, and that complainants had notice and appeared by counsel, the bill was properly dismissed at the argument of the legal questions presented by the plea, on which complainants did not take issue.
    2. Fraud — Assignability oe Claim — Executors and Administrators.
    A right to complain of fraudulent conduct of an administrator in filing accounts, and in his conduct in the matters of the estate, is not assignable.
    3. Probate Court — Jurisdiction oe Equity.
    Where complainants lost, by failure to act seasonably, their opportunity to prosecute their rights in probate court, chan- ' eery does not obtain jurisdiction to set aside the orders made.
    Appeal from Eaton; Smith, J.
    Submitted November 22, 1911.
    (Docket No. 161.)
    Decided March 12, 1912.
    Bill by Charles J. Davis and another against James R. McCamman, as administrator of the estate of Malvina R. McCamman, deceased, and another, for an accounting and other relief. From a decree sustaining a plea to complainants’ amended bill, complainants appeal.
    Affirmed.

      Samuel H. Davis ( O. H. Heed, of counsel), for appellants.

      Horace S. Maynard, for appellees.
   Steers, J.

On March 31, 1911, an opinion was rendered in this court in the above-entitled suit sustaining a decree of the circuit court of Eaton county dismissing complainants’ bill.

Following that decision, complainants again filed substantially the same bill of complaint, adding, however, certain allegations of due diligence after discovery of fraud complained of, lack of notice, and other matters of like nature, framed to comply with suggestions found in the last paragraph of the opinion referred to. Said opinion, reported in 165 Mich. 287 (130 N. W. 691), sufficiently states the nature of the controversy, which need not be repeated at length here. Defendants filed substantially the same demurrer and plea as before. The plea was set down for argument, and on the hearing the circuit court allowed the plea and dismissed complainants’ bill, holding that the amendments to the same in no way strengthened complainants’ former claim. The matter is now again before this court for review.

Defendants’ plea is duly sworn to, and properly certified, as required by Chancery Rule 8. No issue having been taken thereon, the only question involved is its legal sufficiency as against complainants’ bill. Detroit, etc., R. Co. v. McCammon, 108 Mich. 368 (66 N. W. 471); Shafer v. Thompson, 109 Mich. 406 (67 N. W. 511); Hurlbut v. Britain, Walk. Ch. (Mich.) 455. The bill was filed to set aside certain orders and decrees made by the probate court of Eaton county in the matter of the estate of Malvina R. McOamman, deceased, and to obtain a trial of matters relating to the management of said estate. It asks an accounting by defendant McOamman as administrator, charges him with concealing assets and rendering false accounts in fraud of complainants’ rights, prays that he be required to deliver up certain properties, and pay over certain moneys of the estate fraudulently appropriated by him. The right to apply to a court of chancery is based on the claim of fraud and concealment of the fraud until it is too late to appeal or obtain reopening of the orders and decrees in the probate court. The plea sets out in detail the many proceedings had in the probate court, shows that each and every matter complained of was before that court, heard, tried, and determined by it, that complainants had due notice and knowledge thereof, and were represented by counsel in every step of said proceedings. The record shows that administration of the estate of Malvina R. McCamman was begun in the probate court of Baton county in March, 1901, and is still pending in said court.

On September 10, 1909, complainant Mary A. Lindsay Smith, by proper indenture, transferred her entire interest in the estate to complainant Davis. He appears to be relying on claims of fraud committed against his assignor. She, though a nominal party to the suit, has no real interest in it. He cannot avail himself of any fraud practiced on her. A right to complain of fraud is not an assignable commodity. Brush v. Sweet, 38 Mich. 574; Dickinson v. Seaver, 44 Mich. 624 (7 N. W. 182).

As the case presents itself by the record, complainants are seeking an opportunity to retry issues which were tried in the probate court and determined against them, relating to matters within the jurisdiction of said court and in which equity has no power of interference except where, by fraud or mistake, unusual conditions preclude an adequate remedy in the probate court in the first instance. The plea is to be taken as true under the rules of pleading. The bill and plea taken together disclose the case in all vital essentials to be the same and no stronger than when formerly before this court. It was there said:

“The record shows that the probate proceedings were regular. The bill does not successfully impeach them for fraud.”

As was said in Winegar v. Newland, 44 Mich. 369 (6 N. W. 842):

“ It is not perceived that any ground is set forth here for equitable cognizance. Complainant’s remedy, if not lost by neglect to take steps in season, is in the court of probate. And, if it has become impracticable to prosecute redress in that forum by reason of having failed to move seasonably, it neither widens the scope of equity nor gives him any title to proceed in chancery. ”

We think the circuit judge was correct in his conclusion that the case did not justify the intervention of a court of equity, and that he properly dismissed the bill of complaint.

The decree is affirmed, with costs.

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


text:
    CHRONOWSKI v. ZIELINSKI.
    1. Abatement and Revival — Discontinuance —Dismissal op Bill in Chancery — Equity Practice — Decree or Order.
    After the filing of a stipulation discontinuing a foreclosure suit by mutual consent, the proceedings were not a bar to a second foreclosure suit in which defendant, by plea in abatement, set up the pendency of the first proceeding alleging that no final order of dismissal had been entered by the court.
    3. Same — Equity—Nunc Pro Tunc Order.
    And an order entered in the first cause, after the plea in the second cause was filed, discontinuing the suit as of the date of the stipulation, operated as a formal discontinuance at the time of filing the stipulation.,
    Appeal from Wayne; Rohnert, J.
    Submitted November 21,1911.
    (Docket No. 68.)
    Decided March 12, 1912.
    Bill by Stanislaus ChronowsM against John Zielinski, Barbara Zielinski, and the German-American Bank for the foreclosure of a mortgage. From a decree for complainant, defendants Zielinski appeal.
    Affirmed.

      George F. & Peter J. Monaghan, for complainant.

      Ezra P, Beeehler, for defendants.
   McAlvay, J.

This is an appeal from a decree in favor of complainant and against defendants of the ordinary foreclosure of a real estate mortgage. A prior mortgagee, the German-American Bank of Detroit, was made a party defendant, and the foreclosure was taken subject to such prior mortgage, the lien of which was acknowledged as prior and paramount to the lien of complainant upon the premises in question. No relief was prayed or decreed against such prior mortgagee, and none of its rights are involved in this appeal.

It appears that on August 18, 1908, a suit in chancery was begun by this complainant against the same defendants for the foreclosure of this identical mortgage. On March 7, 1910, after the appearance therein of the defendants, who are appellants, a stipulation in writing, theretofore made and entered into by and between the parties to said cause, by their respective solicitors, discontinuing the same, was filed and entered therein. The material portion of this stipulation, duly executed, reads as follows:

“It is hereby stipulated and agreed by and between the parties to the above-entitled cause, through their respective solicitors, that the above-entitled cause be, and the same is hereby, discontinued without costs to either party, and without prejudice.
“Dated Detroit, Michigan, February 9, 1910.”

In the instant case, appellants, having appeared, filed a plea in abatement therein June 21, 1910, on the ground of a former suit pending for the same cause of action, alleging—

“That said suit has never been discontinued; a stipulation for discontinuance having been filed, but no order or decree having been entered in pursuance thereof.”

Under petition of complainant, duly made in the first case, praying for an order nunc pro tunc as of the date of the filing of the stipulation of discontinuance, such order was granted October 12, 1910.

The plea in abatement of the appellants came on to be heard October 31, 1910, and was overruled for the reason as appears in the opinion of the court, as follows:

“I hold that the filing of that stipulation discontinued the case, and that it is not necessary that a formal order of discontinuance be entered. It is notice to all parties in the case of the discontinuance, and until it is set aside it would not permit any further proceedings in the case. The discontinuance disposes of the subject-matter for the purposes of that case, leaving only the question of costs to be determined, either in accordance with the stipulation, or in accordance with the law. So that I hold at the time of the commencement of the second case, May 12, 1910, the first case was not pending.”

In the. order overruling the plea in abatement, the defendants were allowed 10 days to answer the bill of complaint. Defendant Barbara Zielinski answered. The bill was taken as confessed as to John Zielinski. A hearing was had upon the bill of complaint and answer filed, and proofs taken in open court. The decree of foreclosure in favor of complainant was granted.

No question is raised upon this appeal, except upon the action of the court in overruling the plea in abatement. Appellants state in their brief:

“The only question in this case is whether this plea was effective.”

We think that the reasoning of the learned circuit judge is conclusive that the stipulation discontinued the case, and until set aside no further proceeding could be taken in the case. It was not the usual stipulation, agreeing that an order of discontinuance might be entered. Its terms were “that the above-entitled cause may be, and the same is hereby, discontinued without costs.” It disposed of that case by a discontinuance agreed upon and signed by the parties. We do not understand that any court has held that a stipulation in these terms does not absolutely discontinue a case.

The contention of appellants is purely technical, and if this stipulation had been in the usual form it would have no merit, for the reason that the weight of the authority, in our opinion, would sustain a holding that the order nunc pro tunc would operate as a formal discontinuance of that date.

The decree is affirmed, with costs to complainant.

Moore, C. J., and Steers, Brooke, and Blair, JJ., concurred.