author: Blair, J. Per Curiam.

text:
    WOODWORTH v. OLD SECOND NATIONAL BANK. SAME v. MALTBY CEDAR CO.
    1. Corporations — Stockholder’s Rights — Corporate Records —Inspection.
    In the absence of any statutory provision, a stockholder has a common-law right in a proper case and for a proper purpose to inspect corporate records and documents.

    g. Banks and Banking — . National Banks — Stockholder’s Rights — Enforcement—Jurisdiction of State Courts.
    The State courts have jurisdiction to compel the officers of national banks to allow stockholders to inspect the banks’ records and documents in a proper case and for a proper purpose.
    3. Same — Demand—Sufficiency.
    A demand by a stockholder of a bank upon its officers, made at the bank at the close of business on a business day, after due notice, that he, together with his attorney, experts, stenographers, and clerks, be permitted to examine the bank’s records and documents, to commence at that time and to continue thereafter at such hours of the day and evening as would not interfere with the proper conduct and operation of the business of the bank, was made at a proper time and place.
    4. Same — Propriety of Examination.
    The purpose to secure evidence against persons whom he had sued for false representations resulting in the sale to him of stock in the bank at a price in excess of its true value was a legitimate and proper one.
    5. Corporations — Stockholder’s Rights — Corporate Records —Inspection.
    Where a corporation was a mere. instrumentality of a bank, organized for the purpose of managing and realizing upon certain property taken by the bank to liquidate an indebtedness, the stock of which was all held by the bank, except sufficient shares to enable stockholders of the bank to qualify as directors, of whom relator was one, none of whom paid anything for their stock, nor held it otherwise than as trustees for the bank, the claim that relator was not a stockholder, and for that reason not entitled to inspect the books and documents of the corporation, was untenable.
    6. Same-Grounds for Examination.
    The fact that pending his application for mandamus to compel permission to inspect records and documents to enable relator to prepare for trial of a case pending in the State court he discontinued in the State court and commenced again in the Federal court having jurisdiction does not affect his right to the remedy, the reason remaining.
    7. Same — Court Rules.
    Circuit Court Rules 50-57, relating to the discovery of books and papers, apply to pending litigation where discovery is sought by. one of the parties against the opposite party, and were not intended to affect the common-law right to an inspection of corporate records in other cases.
    ON MOTION FOR RETAXATION OF OOSTS.
    1. Costs — Consolidated Causes.
    Where separate petitions in mandamus were filed against a bank and a corporation which was a mere instrumentality of the bank, and on removal to this court by certiorari the cases were consolidated and heard here as one, a reversal with costs against the bank, but without costs as against the corporation, authorized taxing the entire expense of taking and printing testimony, though it related to both cases.
    2. Same — Attorney’s Fee.
    The order allowing costs of both courts authorized taxing a reasonable attorney’s fee in the circuit court, and a fee equivalent to that allowed in the circuit on the judgment appealed from was not unreasonable.
    Certiorari to Saginaw; Gage (William G.), J.
    Submitted July 1, 1908.
    (Calendar Nos. 22,907, 22,908.)
    Decided October 5, 1908.
    Motion for retaxation of costs submitted November 17, 1908; denied November 30, 1908.
    Mandamus by Frank T. Woodworth to compel the Old Second National Bank of Bay City and others, and the Maltby Cedar Company and others, to allow relator to inspect certain books, records, and documents. There were orders denying the writs, and relator brings certiorari.
    Reversed, and writs granted.

      Gillett & Clark and John C. Weadock, for relator.

      Stoddard & McMillan, for respondents.

       As to right of stockholder to inspect books of company, see note to Weihenmayer v. Bitner (Md.), 45 L. R. A. 446.

   Blair, J.

On the 4th day of August, 1905, relator commenced an action in the circuit court for the county of Bay against Joseph W. McGraw and- Frank P. Chesbrough, as defendants, to recover damages alleged to have been suffered by reason of certain false and fraudulent representations made by the said McGraw and Chesbrough, as directors of the old Second National Bank of Bay City, in reliance upon which false representations plaintiff was induced to purchase 155 shares of the capital stock of said bank at a price largely in excess of its true value. Except for the fact that the cases concern purchases of stock made at different times, the cause of action in said case was of precisely the same nature as in the case of Smalley v. McGraw, 148 Mich. 384, 395. A reference to the latter case will supply such further information as may be necessary to an understanding of the cause of action.

Before relator’s action was tried, and in consequence of the decision in Yates v. Jones Nat. Bank, 206 U. S. 158, by the Federal Supreme Court, referred to in the opinion in Smalley v. McGraw on a rehearing in this court, relator discontinued his said action, and began a similar action in the Federal court at Bay City, based on the Federal statute. While the action was pending in the State court against respondents Chesbrough and McGraw,, relator requested permission to inspect the books, papers, and documents of the bank for the principal purpose of enabling him to prepare for the trial of his case, and on February 1, 1906, he served upon the directors of the bank a written notice and demand for such examination, stating that he would renew the demand in person on February 5, 1906, at 3 o’clock in the afternoon, at the banking office of the bank, and that inspection was desired to commence at that time and to continue thereafter at such hours of the day and evening -as would not interfere with the proper conduct and operation of the business of the bank. At the time mentioned in the notice, relator and his attorney renewed the demand in person at the banking office of the bank, where inspection was refused, the cashier informing relator and his attorney that he was acting under the authority of a resolution of the board of directors, which resolution was as follows:

“Resolved, that it is the sense of this board that a compliance with the demand of Mr. Woodworth above referred to [referring to said demand above mentioned] would be detrimental to the interests of the bank, and would involve a large amount of work and resulting expense, and several weeks’ time, and would seriously interfere with the transaction of the regular and routine business of the bank, and jeopardize the interests of the bank and its stockholders, and should not therefore be complied with.”

The reasons stated in the written notice in the bank' case as to the purpose of the examination were:

“ To ascertain the true financial condition of the bank and the true value of its assets and of its capital stock, also to ascertain the amount, nature, and date of the losses suffered by the bank through its dealings with Alvin Maltby, Alzina Maltby, Maltby Lumber Company, Maltby Cedar Company, and W. I. Brotherton & Co., for the year 1896 to the year 1906, both inclusive; * * * also to enable me to investigate the existence, location, and contents of certain documents named below, which will be essential as primary evidence of their contents in the prosecution of an action now pending in the circuit court of Bay county in which I am plaintiff and Joseph W. McGrraw and Frank P. Chesbrough are defendants, in order to enable me to prove the facts charged by me against the defendants in that action,” etc.

The notice further contained, in 33 separate paragraphs, what was alleged to be “a specific list of certain of the books, records, and documents of which inspection is desired.”

After the refusal of the bank officers to permit an inspection, relator filed his petition in the circuit court for a writ of mandamus to require such inspection. The 14th and 15th paragraphs of the petition allege that, after the refusal of inspection,

“Your petitioner, through his attorney, then and there requested said Andrews to permit said petitioner to examine some portions of the boobs, papers, and documents mentioned in petitioner’s written request and inquired if the refusal to permit such examination applied to all the books, papers, and documents mentioned or only to a portion of them; that thereupon the said Andrews informed your petitioner that such refusal applied to all of the documents so mentioned, and that the reason given by the bank and the board of directors thereof and by said Andrews for making such refusal was that such examination would not be for the best interests of the bank or its stockholders; that after such refusal, and on the 6th day of February, 1906, your petitioner’s attorney was informed by the said Andrews that such refusal did not apply to a certain record of the stockholders of said bank purporting to show the names and residence of the said stockholders and the numbers and dates of the certificates of stock issued to them; and that thereafter, on the 6th day of February, 1906, the said Andrews permitted your petitioner’s attorney to inspect such record but that he then and there refused as before to permit your petitioner or his attorney to inspect any other of the books, papers, documents, or records of the bank of which inspection was desired by your petitioner.”

These allegations of the petition were admitted by respondents to be true in their answer. Upon the hearing the circuit judge denied the1 writ upon the grounds, as stated in the bank case:

“ (1) It is apparent +hat the real purpose of the relator in applying for an inspection is to aid him in his litigation against McGraw and Ohesbrough and not to enable him to ascertain the value of his stock in the bank. He would not be entitled to the writ for the mere purpose of ascertaining the value of his stock, for there is no showing of any mismanagement of the bank since he acquired his interest, nor is there any showing that he has not now all the information necessary for that purpose which could be derived from an inspection of the books and papers of the bank.
“ (2) He does not point out by his petition nor show by the evidence which of the books and papers of the bank it is necessary for him to examine to enable him to prepare for the trial of his suit.
“ (3) He seeks an examination and copies by himself and his attorney, accountant, and stenographer of all of the books and papers of the bank. * * * The relator owns but 77k shares of 1,000 shares of this bank stock, and I am of the opinion that such an exhaustive examination of all of its books and papers as asked by his petition might result in grave consequences to the bank. If this be probable, then certainly the interests of the very large majority of the stockholders should not be jeopardized to promote the interest of relator.”

The facts in the second case submitted herewith (Woodworth v. Maltby Cedar Co.) are very similar to those in the bank case. The Maltby Cedar Company was a corporation formed in the interests of the bank. The directors of the bank, having taken over the property of the Maltby Lumber Company as security for or part payment of its indebtedness to the bank, organized the Maltby Cedar Company for the purpose of managing and realizing upon this property and closing up the business of the Maltby Lumber Company to the best advantage. Mr. Andrews, cashier of the bank, holds, as trustee for the bank, more than 99 per cent, of the stock of the Cedar Company, and the other shares are distributed among the stockholders and directors of the bank and held in its interest, except one share, which is held by Mr. Maltby. Mr. Lewis, the secretary and treasurer of the Cedar Company, who was in possession and control of the office, is an accountant employed and placed in the office of the Maltby Lumber Company at the request of the bank before the organization of the Cedar Company. One share of stock stood upon the stock book in the relator’s name, but the same was never delivered to him nor removed from the books. On February 27, 1905, relator was elected a director to fill the vacancy occasioned by the resignation of Joseph W. McG-raw, and was also elected president by the other directors, after which time, until his resignation, relator acted as such director and president. Neither relator nor any of the stockholders and directors of the Maltby Cedar Company paid any value for their stock in the Cedar Company, and in acting therefor they were acting as trustees for the bank. Among the reasons given by the circuit judge for denying the writ against the Maltby Cedar Company was:

“ Such an inspection is now provided for under Circuit Court Bules 50-57 (124 Mich, xxxviii). It will not be ordered when the books and papers can be obtained on the trial by subpoena duces tecum. * * * What interest has relator as a stockholder in the Maltby Cedar Company ? One share was written in his name to enable him to act as director and president when he was active in the Old Second National Bank. He paid nothing for it. It was never delivered to him. He appears to have no greater interest in this company than any other stockholder of the bank and never had a share filled out in his name. Certainly the writ should not issue at the behest of such a person.”

For this, as well as the reasons set forth in the bank case, the circuit judge concluded that it was his duty to deny the writ. Issues of fact were framed and considerable testimony was taken bearing thereon, but we do not deem it necessary to refer particularly to such testimony. Exhaustive printed briefs have been filed by both parties, which have materially lightened the labors of the court in considering the facts involved and the questions of law applicable thereto.

We are inclined to agree with the circuit judge that it is apparent that the real purpose of the application is to aid the relator in preparing for the trial of his case against McGraw and Chesbrough, and we dispose of the case upon that theory.

It is well settled that, in the absence of any statutory provision, a stockholder in a corporation has a common-law right, in a proper case and for a proper purpose, to in-, spect corporate records and documents. People v. Walker, 9 Mich. 328; Guthrie v. Harkness, 199 U. S. 148; In re Steinway, 159 N. Y. 250 (45 L. R. A. 461). In People v. Walker, supra, it was said in the prevailing opinion that the writ would not be granted to enable a corporator to “gratify idle curiosity. The principle seems to be, and very properly, too, that the party asking the writ must have some interest at stake which renders the inspection necessary.” In Guthrie v. Harkness, supra, the jurisdiction of the State courts to entertain applications of this nature against national banks was sustained. Numerous cases are cited, and, among others, the case of Huylar v. Cragin Cattle Co., 40 N. J. Eq. 392, 398. The court quote from the latter case, as follows:

“ Stockholders are entitled to inspect the books of the company for proper purposes at proper times. * * * And they are entitled to such inspection, though their only object is to ascertain whether their affairs have been properly conducted by the directors or managers. Such a right is necessary to their protection. To say that they have the right, but that it can be enforced only when they have ascertained, in some way without the books, that their affairs have been mismanaged, or that their interests are in danger, is practically to deny the right in the majority of cases. Oftentimes frauds are discoverable only by examination of the books by an expert accountant. The books are not the private property of the directors or managers, but are the records of their transactions as trustees for the stockholders.”

It is further said:

“It does not follow that the court will compel the inspection of the bank’s books under all circumstances. In issuing the writ of mandamus, the court will exercise a sound discretion, and grant the right under proper safeguards to protect the interests of all concerned. The writ should not be granted for speculative purposes, or to gratify idle curiosity or to aid a blackmailer, but it may not be denied to the stockholder who seeks the information for legitimate purposes. In re Steinway, 159 N. Y. 250 (45 L. R. A. 461); 4 Thompson on Corporations, § 4412 et seq.”

It is clear that the relator made his demand at a proper time and place. We think it is equally clear that the purpose of the demand was a legitimate and proper one. In the case of Richardson v. Swift, 7 Houst. (Del.) 137, an application was made by David M. Richardson, as relator, a resident of Michigan and a stockholder in the Diamond Match Company, a corporation of Connecticut owning property in the State of Delaware, for a mandamus to compel said Swift, a resident of Delaware and president of the company, who- had possession of certain books and papers belonging to the company, to allow relator to make copies thereof. These copies were wanted by Richardson for use in certain legal proceedings in the State of Michigan brought by him against Christian H. Buhl and Russell A. Alger, of Detroit, to restrain them from selling certain stock of the Diamond Match Company which he claimed. The court held that the relator was entitled to the writ.

In Re Steinway, supra, the court quote from Rex v. Fraternity of Hostmen, 2 Strange, 1223, as follows:

“In Rex v. Fraternity of Hostmen the reporter states that the court said:

“ ‘ Every member of the corporation had, as such, a right to look into the books for any matter that concerned himself, though it was in a dispute with others.’ ”

In 10 Cyc. p. 957, it is said:

“ The English doctrine seems to be that, in the absence of a statute or other instrument conferring the right, a shareholder has no right to an inspection of the corporate books for the purpose of acquiring a knowledge of facts upon which to create a dispute, but that there must be a defined and distinct dispute already in existence with reference to which the right of inspection is demanded. This does not necessarily mean that a suit should have been instituted, but it is sufficient if there is an existing dispute to be settled by reference to the books. There is neither sense nor justice in this restriction, since every proprietor has the right to know the manner in which his agents are conducting his business.”

See, also, 2 Cook on Corporations (5th Ed.), §§ 513, 515, 519; 3 Wigmore on Evidence, § 1858, par. 2. We are of the opinion, therefore, that the purpose of the inspection was a legitimate and proper purpose. We are also of the opinion that the demand, in the light of the pleadings, was sufficient to warrant the granting of the writ. Many of the books and papers specified by relator in the notice were sufficiently designated, and the refusal to permit examination was not based upon the ground that the notice was not sufficiently specific, but upon a different ground —on the ground of inconvenience to the bank. In Ellsworth v. Dorwart, 95 Iowa, 108, the court said:

“It is said in appellee’s argument that plaintiff requested and prayed for more than he was entitled to, and that they and the court were justified in denying him the right to examine any of the boobs. We do not think this is the rule. It was the duty of the officer, upon request, to exhibit to plaintiff such books as he was entitled to, although he called for more than he could rightfully demand; and the court was not justified in refusing him all relief because he asked for more than he was entitled to.”

The point that relator was not a stockholder in the Maltby Cedar Company, and, therefore, not entitled to an inspection of its records, is not well taken. The Maltby Cedar Company was a mere instrumentality of the bank itself, in which all of the stockholders of the bank had at least an equitable interest, and the directors of the bank having made relator a stockholder, director, and president of this corporation, and he having the same interest in it that any of them had, and none of them having paid value for their stock, they do not now stand in position'to deny his rights as a stockholder of that corporation. Clark v. Machine Co., 151 Mich. 416. The fact that relator has discontinued his suit against Chesbrough and McGraw in the Bay circuit and recommenced it in the Federal court does not affect his right to the writ. The reason for the writ remains precisely the same as before.

We are also of the opinion that Circuit Court Rules 50 — 57 (124 Mich, xxxviii) have no application to this case. Those rules apply to pending litigation where discovery is sought by one of the parties against the opposite party, and were not intended to affect the common-law right to an inspection of corporate records in other cases.

We are therefore of the opinion that relator is entitled to the writ permitting an inspection by himself, his attorneys, and necessary experts, of such books, papers, records, and documents of the bank and Cedar Company as are material to his cause of action in the Federal court, such inspection to be had at such place and times and in such manner as will least inconvenience the business of the bank, and under the surveillance of such officer or person as the bank may designate, and at the expense of relator. If the parties are unable to agree as to the course of the examination or the subject-matter thereof, a further application may be made to this court.

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

ON MOTION FOR RETAXATION OF COSTS.

Per Curiam.

Relator filed two separate petitions for the writ of mandamus to enforce his right as a stockholder to inspect the books of the above-named bank and of the Maltby Cedar Company. The circuit court denied both petitions. The orders of the circuit court were reversed in this court upon certiorari. Ante, 459. Relator applied for full costs in both cases. Respondents objected, for the following reason, among others, viz.:

“We further call attention to the fact that these two cases were heard in this court and the court below as one case, and the testimony was taken in the same manner. For this reason, also, we think that full costs should not be granted in both cases.”

An order was entered in the Bank Case:

‘ ‘ That the relator recover of and from the respondents his costs of both courts, to be taxed.”

In the Maltby Cedar Co. Case the order as to costs was:

“No costs will be awarded either party in this cause.”

In taxing the costs the clerk of this court allowed, among others, the following items: Printing brief, $57.60; printing reply brief, $3.60; paid commissioner for taking testimony, $122.55; clerk of Federal court for certified copy of declaration, $8; attorney fee, as allowed by circuit court on taxation of costs by respondents, $30. Respondents objected to the allowance of these items and others, and have appealed from the taxation thereof.

The basis of the objection to the items for printing and taking testimony is that such items relate to both cases, should be apportioned between them, and only that portion of such expense incurred in the Bank Case taxed. As we held in the opinion above referred to, the Maltby Cedar Company was a mere instrumentality of the bank, and any costs allowed against the Cedar Company would be paid by the bank. In entering the order, respondents’ theory was adopted that the two cases were really consolidated into one case, and the costs were properly taxed upon that theory. The relator was entitled, under-the order giving him costs in both courts, to a reasonable attorney fee in the circuit court. Inasmuch as the circuit judge allowed respondents an attorney fee of $30 in each case, we do not think they can complain that the fee allowed is unreasonable. The $8 for certified copy was necessary to show the status of the case in the Federal court, and the continued necessity for an examination of the books, and was properly allowed. There are no other objections which require discussion. *

The motion for retaxation is denied.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    BURNS v. BOARD OF ELECTION COMMISSIONERS.
    Elections — Nominations—Conventions—Proceedings.
    A candidate receiving 6 of 11 votes of the regularly elected delegates in a regularly constituted convention, as against a candidate receiving 5 votes in a seceding body of 5, is the nominee of the convention and is entitled to the place on the regular party ticket.
    Mandamus by William R. Borns to compel the boards of election commissioners of Alger, Luce, Schoolcraft, and Mackinac counties to place relator’s name upon the official republican ballot as a candidate for representative in the State legislature.
    Submitted October 27, 1908.
    (Calendar No. 23,099.)
    Writ granted October 27, 1908.

      George P. Brown, for relator.

      James McNamara, for respondents.
   Per Curiam.

The record shows that relator received 6 of 11 votes of the regularly elected delegates in a regularly constituted convention. Respondent Edward McNamara received 5 votes in a seceding body of 5. Under these circumstances, it is clear that relator is entitled to a place on the regular republican ticket, and that respondent is entitled to no place upon the official ballot. Beck v. Election Com'rs, 103 Mich. 192; Potter v. Deuel, 149 Mich. 393.


author: Moore, J.

text:
    VILLAGE OF BERRIEN SPRINGS v. FERGUSON.
    Dedication — Acceptance—Village Plat — Evidence.
    Where a paper filed with a town plat stated that the side hill from the river lots up to B. street should remain open and free for the benefit of the public for the purpose of spring water, and nothing built thereon which might obstruct the view of the river from B. street, an intention to dedicate the side hill to the public appears, and the hill having been cleared of some of its underbrush at the expense of the village, and it having been used for private and public picnics and other public uses, there was an acceptance, irrespective of whether the plat and dedication were made by proper parties, or whether they complied with the statute.
    Appeal from Berrien; Coolidge, J.
    Submitted June 15, 1908.
    (Docket No. 98.)
    Decided November 2, 1908.
    Bill by the village of Berrien Springs and others against Frank A. Ferguson and others to enjoin the building upon certain premises claimed as a park. From a decree for complainants, defendants appeal.
    Affirmed.

      Lawrence C. Fyfe, for complainants.

      Cady & Andrews and George E. Dawson, for defendants.
   Moore, J.

The St. Joseph river runs from the south in a northerly direction. West of the river is the village of Berrien Springs. At an early day just west of the river was a strip of low land; then came a bluff from 40 to 75 feet high. The side hill was covered with bushes and trees of various sorts, and in it were several springs. At the top of the bluff was a comparatively level plateau, covered with native forest trees. The first street west of the river, and running nearly parallel to it, is known as Bluff street. Its west line is a straight line. The street is of irregular width. The complainants Mahan, Sink, and Benhard are the owners of homes on the west side of

Berrien Springs. The defendants Ferguson and Dear-born have put up two cottages between Bluff street and the river, which it is claimed obstruct the view of complainants . . The other defendant is the o wner of a mortgage on this property. The bill is filed upon the theory that defendants had no right to erect the cottages, and to compel their removal.

The original plat of Berrien Springs was made in 1831. It was recorded in Cass county, of which Berrien county was then a part, in August, 1831, and is the only plat of that part of the village of Berrien Springs which has ever been made. The streets shown and named thereon have become the streets of the village. All the deeds which have been made of the lots shown on said plat have referred, in the description of the property conveyed, to said plat. The principal street running east and west located on the plat is known as Ferry street. Then next north comes Mars street, then Madison street, then comes Union street. Attached to the plat, and recorded at the same time, was the following (we quote the words and figures we deem material):

“ The streets are running at right angles from the place of beginning, which is at the northeast corner of lot No. 38, running up the river from said beginning south 37 degrees east and down the river north 37 degrees west, except Bluff street from the southeast corner of lot No. 37, which runs north as far as lot numbered 13, which cuts said lot, a small corner off it. Thence near 2 degrees east of north until its termination as lot numbered 1. Also Ferry street from its departure from Mechanic street, which runs north 55 degrees east to the river, the roads are to be taken down from Bluff street to the river, at the places and courses designated by black paint on the plat fifty feet wide. River lots numbered separate from the lots above the bluff. * * *
“Surveyed by Samuel Mars. The side hill from the river lots up to Bluff street is to remain open and free for the benefit of the public for the purpose of spring water, and not anything built thereon that may obstruct the view of the river from Bluff street. The bottom land above the ferry will be laid out similar as it is below, with an alley under the bluff, and nothing built on the side hill to obstruct the view of the river from the town. There will be on the bottom lots for boat yard and lumber. * * *
475
“References: ‘A,’Fish Market; ‘B,’ Public Landing. Lot No. 89 is donated to the New Jerusalem Church and for no other denomination of Christians. The size of the lots on the river from Brown and Godfrey’s line down the, river to the northern line of lot 25 is four perches in front and three perches in the rear. As witness our hands and seals this 3d day of August 1831.”
Then come signatures and seals.
“ Michigan Territory, aa “Cass County. j SS>: -
“Before the subscriber, a justice of the peace for the county of Cass, in the territory aforesaid, came personally Francis B. Murdoch, Pitt Brown and Horace Godfrey, owners and proprietors of the land upon which the town of Berrien according to the annexed map is located, and acknowledges the map and plat aforesaid of said town, with the boundaries, references and grants in the same map to be their free act and deed, and as such desire the same to be recorded according to the act of the legislative council. In witness whereof I have hereunto set my hand and seal at the county aforesaid the 12th day of August, A. D. 1831.
[Seal.] ■ “A. Huston,
“Justice of the Peace.”

Objection was made to the reception of this plat for the following reasons:

“(1) As the deeds and different instruments introduced by the complainant show that Pitt Brown and Horace Godfrey never owned or had any interest in the premises in question, and as the instruments show that at the time of the pretended dedication Francis B. Murdoch was not the owner or proprietor, nor had any interest in the premises in question, we object to the introduction of the plat.
“(2) And, further, for the reason that the plat has only one witness.
“(3) And for the further reason that the plat does not clearly and unequivocally show an intention upon, the part of the pretended plattors to make a dedication.
“(4) And for the further reason that there never was any acceptance by the public of the dedication, if there was a dedication.
“(5) And for the further reason that the pretended plat contains provisions which have never been performed or complied with by the public.
“(6) And for the further reason that, if there was ever any intention upon the part of the plattors to dedicate, that intention was revoked and rescinded by the plattors before there was any acceptance by the public.”

These reasons, and the further one that defendants obtained title to the lots occupied by them through Mr. Murdoch, which title they claim is good, constitute the claimed defense of defendants.

The case was tried in open court before the circuit judge, who made a decree sustaining the claim of the village in part, and to the effect that defendants have no right to—

“Have any buildings, fences, or erections of any kind or nature whatsoever upon that portion of the village of Berrien Springs, Berrien county, Mich., lying between the north line of Union street and the north line of Mars street if these lines were extended to the river St. Joseph in said village, and between the westerly line of Bluff street and the said river, now or at any time in the future, and they and each of them, and any and all persons claiming, or to claim, from and under them, or' either or any of them, are hereby forever permanently enjoined from erecting or maintaining any building or erection of any kind whatsoever upon said premises. The line hereinafter mentioned, and designated as the north line of Mars street extended is used in this decree merely as a convenient boundary line. The use of it as such convenient boundary line shall not limit nor bound, increase nor decrease, the rights of said village, or of any person or persons in the property between Bluff street and the river south of such line.”

The defendants have appealed from this decree. The complainants did not appeal. We deem it unnecessary to decide whether the plat and the dedication accompanying it were made by the proper parties, or whether it complied with the statute. It has been acted upon for more th an 75 years. It has been constantly referred to in all the conveyances, and is the only plat of the original village there is.

The only important questions, we think, are whether the plat dedicates to the public that part of the bluff and side hill which is between Bluff street and the river, and whether the public have accepted such dedication. The map which was filed, and the paper attached thereto, indicates an intention to dedicate the land to the public. The evidence is unquestioned that the view from the bluff is fine, and that the side hill contained springs of water. The river runs through a beautiful valley, which is from a mile to a mile and a quarter wide. The testimony is conflicting as to just what was done by the inhabitants and the village. It does show, however, a clearing of some of the land of the underbrush by the village, and at its expense, the use of it for private and public picnics, and other public uses. The case of Conkling v. Village of Mackinaw City, 120 Mich. 67, contains a very full discussion of the principles which should apply to a case of this character. The facts disclosed by this record bring this case within the Conkling Case.

The decree is affirmed.

Montgomery, Ostrander, Hooker, and McAlvay, JJ., concurred.


author: Ostrander, J.

text:
    HOGAN v. DETROIT UNITED RAILWAY.
    . 1-. Railroads — Equipment—Conditional Sale — Contracts—Rec- ; ord — Bona Fide Purchasers.
    Where a buyer of electric-railway equipment upon a contract of conditional sale resold the same before paying for it, and the original contract of sale was not recorded as required by section 6336, 2 Comp. Laws, the seller or his assignee could not recover the balance of the purchase price from the last buyer without showing that such buyer was not a subsequent, bona fide purchaser for value without notice; but that fact being established, either the seller or his assignee could recover, in trover, the unpaid price.
    2. Sales — Conditional Sales — Bona Fide Purchaser — Demand. —Evidence.
    The receiver of a bank having bought the rights of the seller in a contract of conditional sale, and caused the assignment thereof to be made to plaintiff, and having demanded the return of the property from defendant, a purchaser from the original buyer, those facts, and that the transaction by the receiver was authorized by the court appointing him, were provable in an action of trover against the party in possession of the property to show the real party in interest, his authority, and the demand.
    3. Appeal and Error — Review —Record—Argument of Counsel.
    Where counsel did not go outside the record in his argument, and the language complained of was called out by comments of opposing counsel upon other testimony, which comments are not in the record, no cause for reversal arising from the argument appears.
    Error to Wayne; Mandell, J.
    Submitted June 18, 1908.
    (Docket No. 21.)
    Decided November 2, 1908.
    Trover by Walter Q-. Hogan against the Detroit United Railway. There was judgment for plaintiff, and defendant .brings error.
    Affirmed.

      Brennan, Donnelly & Van De Mark {Geer, Williams, Martin & Butler, of counsel), for appellant.

      Bowen, Douglas, Whiting & Murfin, for appellee.
   Ostrander, J.

Former opinions of this court, in this case (140 Mich. 101; 148 Mich. 288) indicate the nature of the action, the issues, and the substance of the testimony produced. The facts made to appear upon the third trial are substantially those appearing upon each of the other trials. The jury rendered a verdict in favor of plaintiff. Judgment was entered on the verdict. A motion for a new trial was made, heard, and denied. Errors are assigned (1) upon rulings admitting certain testimony; (2) upon the charge given and upon refusals to charge the jury as requested by defendant; (3) upon the refusal to grant a new trial; and (4) upon exceptions taken to statements of counsel for plaintiff in the presence of the jury and in the argument of the case to the jury.

1. It appears, as it has twice before appeared, and the facts in this respect are in no way in dispute, that a manufacturing company contracted with a partnership association named Detroit Construction Company, Limited, to sell to it, and that it did sell and deliver to it, certain apparatus at an agreed price. By the terms of the contract, title and ownership of this property remained in the vendor until the contract price was paid. The contract was signed by both parties. Three members of the vendee partnership association guaranteed in writing payment of the contract price, and agreed to indorse the notes to be given for deferred payments. Before the apparatus was installed, the railway property of which it was to be and of which it became a necessary component part passed to defendant for value. The purchase price of the railway property was nciade and paid upon the theory that the railway property was complete; that is to say, upon the theory that the apparatus in question, or equivalent apparatus, had been or would be installed as a part of the railway property. A portion of the purchase price of the apparatus — evidenced by the last note given — was not paid. Frank C. Andrews, one of the guarantors of payment, who was also an indorser of the note, became insolvent. Some of his creditors threatened to institute bankruptcy proceedings. . The receiver of the City Savings Bank of Detroit, with the affairs of which the said Andrews was largely involved, to which he had conveyed property as security, for the purpose of avoiding bankruptcy proceedings, purchased and paid for this and other claims against him. An assignment of the contract, without recourse to the vendor, was made to the plaintiff. He demanded payment of the unpaid purchase price of the defendant. Payment was refused. He demanded the apparatus. The demand was refused. This suit was begun. The vendor of the apparatus did not comply with 2 Comp. Laws, § 6336. The effect of this was to defeat a recovery by it or by its assignee, unless it could be established that the defendant was not a subsequent bona fide purchaser of the property for value without notice. The admitted facts and the prior decisions limited the issue at the last trial to the single question of notice or knowledge on the part of defendant of plaintiff’s claim. This notice or knowledge plaintiff had the burden of proving, and this he attempted to prove with no evidence that defendant had actual knowledge that the property was not paid for or that the contract for its purchase contained a provision reserving to the vendor title and the right to possession in case of default in payment. In proving his title the plaintiff did not rest upon the contract and the assignment thereof. He proved, over objection, what has been stated, viz., that the receiver was the real owner, had paid the face value of the demand, and had taken the assignment in the name of plaintiff, that the court appointing the receiver sanctioned the transaction, and that the reason for making the purchase was to prevent the institution of bankruptcy proceedings against Andrews. It is contended that this evidence was immaterial. The argument made is, in substance, that the plaintiff’s succession to the contract rights of the contract vendor is conclusively shown by the contract and by the assignment thereof. In this case the assignee is in the same position with respect to the precise issue involved as was his assignor. Neither could recover, unless it was established that defendant, lawfully in possession of property which it had paid for, bought it with notice of the original vendor’s rights. This fact being established, either could recover, in trover, the unpaid purchase price. In such a case it is usually not necessary, to establish a right to recover, to prove more than the written assignment imports, or to prove a reason for taking an assignment, or that some court or a judge thereof had authorized the purchase of the demand, or that some person other than plaintiff was the real party in interest. None of these facts tended in any way to prove that the defendant was not a good-faith purchaser. But it seems to be admitted in this case that a demand was necessary before bringing suit. The fact of a demand of the property and a refusal to deliver it or to pay for it was one to be established by plaintiff. It was the receiver — the actual purchaser and owner of the claim — which made the demand, and made it for and in behalf of itself. There were various interviews at which the subject was discussed. The plaintiff, Hogan, appears to have taken no part in the negotiations, and all interested parties understood, what was true, that the receiver purchased the claim and had the assignment made to Hogan. We have no doubt that the testimony was competent, and that the real owner had the right to prove its interest, its authority to make the purchase, and its demand upon defendant.

2. We have examined the charge and the requests to charge preferred by defendant, and think that no error is pointed out. The court fairly submitted the single issue of fact involved in the case in a manner conformable with former opinions of this court.

8. The grounds of the motion for a new trial are, first, that there is no evidence to support a finding that defendant had notice or knowledge of plaintiff’s demand; second, that the verdict is against the weight of evidence. Both points are disposed of by our former opinions.

4. We do not feel warranted in reversing the judgment for what counsel for plaintiff said in argument. It was in evidence that defendant had the guaranty of certain persons that the property conveyed to it should be free and clear from all liens and adverse rights or title or incumbrance except as enumerated. Counsel for plaintiff made a use of this testimony in argument objected to by defendant and called to the attention of the court. The court was of opinion that defendant’s counsel had in his argument made comments upon other testimony which made the argument objected to proper. The record does not set out the language to which the court referred. Counsel for plaintiff did not travel outside of the record.

No error appearing, the judgment is affirmed.

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


author: Hooker, J. Ostrander, J.

text:
    CLARK v. BAY CIRCUIT JUDGE.
    1. Costs — Security—Stay—Propriety—Costs Included.
    An order for security for costs, including accrued as well as prospective costs, with stay until filed, entered after reversal in-this court, is within the-discretion of the circuit court. Section 9992, 3 Comp. Laws.
    2. Appeal and Error — Finality of Orders — Security for Costs.
    An order for security for costs, with stay until filed, is not a final order, and error will not lie for that reason.
    Mandamus by Charles Clark, administrator of the estate of William F. Clark, deceased, to compel Chester L. Collins, circuit judge of Bay county, to vacate an order staying proceedings in an action at law.
    Submitted July 7, 1908.
    (Calendar No. 22,915.)
    Writ denied November 2, 1908.

      DeVere Hall, for relator.

      Cooley & Hewitt, for respondent.
   Hooker, J.

I am not prepared to say that an order for security for costs, with stay until filed, was not within the discretion of the circuit judge, and that it might not include accrued, as well as prospective, costs.

‘£ The court in which any civil action shall be pending, may, in all cases, when it shall appear reasonable and proper, require the plaintiff to give sufficient security for all such costs as may be awarded against him therein.” 3 Comp. Laws, § 9992.

Or that the payment of adjudged costs of a former trial or review may not be required before a second trial is entered upon. The latter practice is plain in New York, from whence our practice comes, and elsewhere. The rule was applied in a habeas corpus proceeding in Ex parte Stone, 3 Cow. (N. Y.) 380, and to a second trial in an ejectment case in Jackson v. Schauber, 4 Wend. (N. Y.) 216. See, also, Griffin v. Round Lake Camp Meet ing Ass’n, 26 Hun (N. Y.), 314; Jackson v. Carpenter, 3 Cow. (N. Y.) 22, and Dresser v. Brooks, 1 Abb. Dec. (N. Y.) 556.

The case of Gerrish v. Pratt, 6 Minn. 58, is an authority for the practice followed in this cause. In Felt v. Amidon, 48 Wis. 66, the authority to stay proceedings in the trial court until the costs of a former appeal should be paid was sustained, and it was said that the order was a discretionary one, not subject to review, except possibly for abuse of discretion. See, also, Johnston v. Reiley, 24 Wis. 494; Parmalee v. Wheeler, 32 Wis. 429; Noble v. Strachan, 32 Wis. 314; McLeod v. Bertschy, 30 Wis. 324; In re Will of Kneeland, 40 Wis. 344; Blesch v. Railway Co., 44 Wis. 593, 595; McIntosh v. Hoben, 11 Wis. 400. The subject is considered and discussed at length, and many cases cited, by Philips, J., in Buckles v. Railway Co., 47 Fed. 424, and the practice upheld as one lodged in all courts. This doctrine is announced in the case of Henderson v. Griffin, 5 Pet. (U. S.) 151. See, also, Robinson v. Transportation Co., 16 R. I. 217.

I think that the order was not a final order, and that error would not lie for that reason. We must assume that the learned circuit judge exercised his best judgment in the interest of justice, and necessarily his opportunity for knowing the character of the claim in this case is better than ours. V\7e should not say, therefore, that he has abused his discretion. The writ should be denied, with costs.

Grant, C. J., and Montgomery and McAlvay, JJ., concurred.

Ostrander, J.

I concur in denying the writ on the ground that it does not appear that the circuit judge had before him evidence of the inability of the parties interested to pay the costs of this court. If the fact appeared, I think the writ should issue.

Moore, J., concurred.


author: Montgomery, J.

text:
    MAST v. WASHTENAW CIRCUIT JUDGE.
    1. Execution — Availability—Chancery Decree — Form of Decree.
    That a chancery decree ordering the payment of money fails to contain an order for an execution does not determine the complainant’s rights in that respect, since if by law he is entitled to an execution an application for a modification of the decree would be proper.
    3. Contempt — Proceedings — Enforcement of Decree — Existence of Other Remedy — Execution.
    A chancery decree ordering defendants “severally or jointly to pay §7,610.31 trust funds” to the register of the court, founded on a showing that as to that fund they were trustees ex mala fides, is not an order that a particular fund be turned over in specie, but is a decree enforceable by execution, and proceedings to punish them as for contempt for disobedience of the order are not open. Section 10891, 3 Comp. Laws.
    Mandamus by Theodore E. Mast to compel Edward D. Kinne, circuit judge of Washtenaw county, to enter an order adjudging certain persons guilty of contempt for failure to comply with the terms of a decree.
    Submitted September 8,. 1908.
    (Calendar No. 22,937.)
    Writ denied November 2, 1908.

      Robert E. Bunker, for relator.

      M. J. Lehman and A. J. Sawyer, for respondent.
   Montgomery, J.

This is an application for a mandamus to require the respondent to proceed to punish George H. Purchase and Elmer C. Glenn for contempt of court. The alleged contempt was a failure to pay over the amount of a certain decree pronounced by the circuit court in chancery in a case in which the relator in this proceeding is complainant. The bill was filed alleging that the complainant, the defendants Purchase and Glenn, and a large number of other parties, who were made defendants because of interest in the subject-matter, joined in the enterprise of obtaining an option to purchase a so-called oil lease from one Charles W. Miller. The bill alleged that Purchase and Glenn misrepresented to the complainant and others that they were required to pay to Miller for this option the sum of $10,500, and that the land covered by the option or lease was valuable oil land, and various other averments of fraud, the truth of which was negatived in the bill. An issue of fact was made upon these averments, but the circuit court found that they were true, and it was further found that the defendants Purchase and Glenn had not accounted for the moneys^which had come into their hands, and that there still remains in their hands a fund of $7,000. A decree was thereupon entered, finding as a fact that the said Purchase and Glenn now have in their possession $7,000 of said trust funds, and have had the same since September 1, 1906, together with interest thereon, amounting to the sum of $610.31, and concluding with the order:

“And thereupon it is ordered and directed, and the court hereby orders and directs said Purchase and Glenn severally or jointly to pay said $7,610;31 trust funds to the register of this court within 10 days from this date, and orders said register on receipt of said funds to deposit them to the credit of this cause in the First National Bank of Ann Arbor, there to await the further order of this court.”

Upon the application for an order to commit for contempt for failure to comply with the provisions of this decree, the circuit judge ruled that the case was one in which an execution might by law issue for the collection of the debt, and that in view of the provisions of section 10891, 3 Comp. Laws, the remedy of proceedings as for contempt is not open.

The petitioner relies upon Carnahan v. Carnahan, 143 Mich. 390, and the question is whether this case falls within the holding in that case, in which an order committing for contempt was sustained. What was decided in that case was this: That in that proceeding it was competent for the court to adjust the property relations of the two parties inthecase, andthatin doing so the courthad directed a specific fund, then on deposit in the name of the defendant and equitably belonging to the complainant, to be turned over in specie — an order which the defendant had failed to comply with. Obviously an execution in ordinary form could not have accomplished what was here attempted, viz., the laying hold of a particular fund beyond the jurisdiction of the court and turning that over to the complainant. It is claimed that, in view of the finding of the circuit judge, this case is in all respects similar to the case cited. It is to be noted, first, that the form of the order in the decree should not be held to conclude inquiry as to whether the remedy of execution is still open to the party. See Swarthout v. Lucas, 102 Mich. 492. The fact that the decree fails to contain an order for an execution does not determine the complainant’s rights in that respect. If by law he is entitled to an execution on such a decree, application for a modification of the decree might be made.

But it is said that there was a finding here by the circuit judge that this fund remained in the hands of the defendants Purchase and Glenn. The return indicates, and the whole record discloses, that the sense of this finding was that Purchase and Glenn had not accounted for the money, and that it was in that sense that it still remains in their hands. There is no claim that there was any showing that there was any specific money anywhere upon which it would be possible for either Glenn or Purchase to give a check or an assignment, or that they had control of any money at the time of the hearing in this case, except that it appeared that they were as to this fund trustees ex mala fides. We think something more than this was necessary to be shown to bring the case within Carnahan v. Carnahan, 143 Mich. 390, and that this is an attempt to enforce a money decree by proceedings for contempt, when the remedy by execution is open. The writ is denied.

Ostrander, Hooker, Moore, and McAlvay, JJ.„ concurred.


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    CLIFTON v. JACKSON PROBATE JUDGE.
    Executors and Administrators — Probate Court — Appeal — Right — Allowance.
    Under section 669, 1 Comp. Laws, an appeal from the probate court is a matter of right on compliance with the statute, and the probate judge is not authorized to enter into an inquiry whether the party claiming the appeal is in fact a “person aggrieved” and deny the application if he is not found to be aggrieved.
    Certiorari to Jackson; Parkinson, J.
    Submitted September 8, 1908.
    (Calendar No. 23,004.)
    Decided November 2, 1908.
    Mandamus by Elizabeth Clifton to compel Robert A. Smith, probate judge of Jackson county, to grant an appeal to the circuit court. There was an order granting the writ, and respondent brings certiorari.
    Affirmed.

      R. S. Woodliff, for relator.

      Richard Price, for respondent.
   Moore, J.

The following is a sufficient statement to show the questions involved: John Parr died, leaving a will in which he made two specific bequests and gave the residue of his estate to his wife. The will was duly admitted to probate, and no appeal was taken. An administrator was appointed. After a time he was ready to settle the estate, and filed his account, and asked for an order for the distribution of the estate. Before the hearing the appearance of the relator by her attorney was entered. After several adjournments, an order allowing the account of the administrator and ordering distribution of the estate was made. Within the time allowed for an appeal the relator sought to take an appeal. It was her claim that John Parr was born an illegitimate child, that he left no children, and that his wife died before he did, so that as to the residuary part of his estate, he died intestate, and that his heir at law was Mary Ann Willis, a resident of England. The relator claimed to be the assignee of Mary Ann Willis as to all her interest in said estate, and that she was aggrieved by the order of the probate court, and desired to take an appeal therefrom at the same time relator tendered a bond. The judge of probate was of the opinion that it had not been made to appear that relator was aggrieved by the order of the court, and denied her application for an appeal, and refused to file her application and the bond, but made a memorandum thereon showing the time when they were presented. Upon making an application to the circuit judge for a mandamus to the probate court requiring it to file the papers presented by the relator and to grant an appeal, an order was issued to show cause. A hearing was had, and the circuit judge granted the writ of mandamus. The case is removed here by certiorari.

It is the claim of counsel for the respondent that it is only a party who is aggrieved by the order of the judge of probate who has a right to an appeal; “that the judge of probate is not called upon to act in this matter, except at the instance of a party aggrieved, and when the interest of the party is questioned, as it was in this instance, a prima facie showing, at least; should be made.” In other words, it is the claim of counsel that, though a person claiming an appeal presents an application in the words of the statute, the probate judge may then and there enter upon an inquiry as to whether the applicant is in fact aggrieved by the order, and, if not satisfied that he is aggrieved, may refuse to allow him to appeal. Counsel cite, in support of this contention, several cases to be found in his brief. An examination of them will show they are not controlling in the case before us. Section 669, 1 Comp. Laws, reads in part as follows:

“Any person aggrieved by any order, sentence, decree or denial of a judge of probate, may appeal therefrom to the circuit court for the same county.”

See Fox v. Wayne Probate Judge, 48 Mich. 643; Pruden v. Clark, 148 Mich. 165. We think the application made to the probate judge brought the relator within the provisions of the statute.

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

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


text:
    BRESNAHAN v. CASS CIRCUIT JUDGE.
    1. Mandamus — Application—Jurisdiction—Demand for Relief.
    Where a mandamus to require the circuit court to set aside an order was fully briefed and orally presented upon the merits, and the public interest required that the question presented be disposed of, the court considered the merits, notwithstanding the practice was irregular in that no motion had been made in the circuit court to vacate the order complained of.
    2. Venue — Change—Application—Prematurity—Cause Not at Issue.
    Under Act No. 161, Pub. Acts 1907, application for change of venue is premature before issue joined.
    Mandamus by Thomas J. Bresnahan, prosecuting attorney, to compel Walter H. North, acting circuit judge of Cass county, to set aside an order granting a change of venue.
    Submitted October 6, 1908.
    (Calendar No. 22,942.)
    Writ granted November 2, 1908.

      Thomas J. Bresnahan (John F. Bird, Attorney General, and Thomas Ambrose Lawler, Assistant Attorney General, of counsel), in pro. per.

      James H. Kinnane and Dallas Boudeman (.Pierce & Kinnane, of counsel), for respondent.
   Montgomery, J.

This is an application for a mandamus requiring the respondent to set aside an order directing a change of venue in the case of People v. Frank W. Lyle and Ira B. Gage, based upon two counts: First, that the order was prematurely made, it having been entered before the case was at issue; and, second, upon the ground that there was an abuse of discretion in awarding the change of venue.

A preliminary question is raised by the respondent, namely, that no motion was regularly entered asking the judge to vacate the order which he had entered for a change of venue. The practice was not followed in this respect, but as the case is fully briefed and orally presented upon the merits, and public interest requires that the question be disposed of, we think the rights of all parties will be better subserved by a consideration of the merits. Were the case to turn upon the question of discretion, we should not be disposed to disturb the holding of the circuit judge, as there was ample showing of prejudice, and, while opposing affidavits in large numbers were filed, we cannot say that there was not abundant ground for the circuit judge to act upon.

The principal question is whether it was proper to enter the order before the cause was at issue. The statute, as amended in 1907 (Act No. 161, Pub. Acts 1907), reads in part as follows:

“ Each of the said courts, upon good cause shown, may change the venue in any cause pending therein, and direct the issue to be tried in the circuit court of another county, and make all necessary rules and orders for the certifying and removing such cause, and all matters relating thereto, to the court in which such issue shall be ordered to be tried, and the court to which such cause shall be so removed shall proceed to hear, try and determine the same.”

This statute plainly imports that what is to be transferred from one county to another is a case at issue, as it refers to the court to which the case is transferred as the court in which such issue shall be ordered to be tried, and the duty of that court to which the cause is transferred is defined, namely, to proceed to hear, try, and determine the same. There is abundant reason for this. The ground of the application for a change of venue of the present case is the claim that it would be impossible to secure a jury. Unless an issue of fact is made, no jury will be called upon to act in the case. Hence no necessity for a change of venue.

Cases are not numerous in which this question has arisen; but, so far as our examination extends, the authorities are uniform that the application for a change of venue must be made after issue has been joined. See 12 Cyc. p. 247; State v. Haywood, 94 N. C. 847; People v. McCraney, 21 How. Prac. (N. Y.) 149; State v. Addison, 2 S. C. 356.

The order for a change of venue should be set aside.

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


author: Blair, J.

text:
    GRAND RAPIDS & INDIANA RAILWAY CO. v. KALAMAZOO CIRCUIT JUDGE.
    Venue — Change—Actions in Which Authorized — Condemnation Proceedings.
    Act No. 161, Pub. Acts 1907, authorizing a change of venue in any “cause” pending, was not intended to extend the jurisdiction previously existing, and hence did not authorize a change of venue in proceedings to condemn land for a railroad right of way.
    Mandamus by the Grand Rapids & Indiana Railway Company to compel John W. Adams, circuit judge of Kalamazoo county, to vacate an order denying a change of venue.
    Submitted September 8,1908.
    (Calendar No. 23,114½.)
    Writ denied November 2, 1908.

      James H. Campbell, for relator.

      A If red J. Mills, for respondent:
   Blair, J.

This is an application for an order requiring respondent to show cause why he should not vacate his order denying a petition for change of venue in the condemnation proceedings reported as Chicago, etc., R. Co. v. Grand Rapids, etc., R. Co., 153 Mich. 686. The respondent refused to grant a change of venue upon the sole ground that he had no jurisdiction or power to grant a change of venue in condemnation proceedings, regardless of the showing made. The trial judge was clearly right in his holding, unless the amendment of 1907 (Act No. 161, Pub. Acts 1907) has effected a change in the law as to such proceedings. Michigan, etc., R. Co. v. Monroe Circuit Judge, 144 Mich. 44.

Act No. 309, Pub. Acts 1905, provided:

“Each of said courts may change the venue of any criminal action pending therein, upon good cause shown, and shall change the venue of any civil action pending therein, upon the application,” etc.

The amendment of 1907 provides:

“ Each of the said courts, upon good cause shown, may change the venue in any cause pending therein,” etc.

We find no reasonable ground for determining that the legislature intended, by the use of the word “cause,” instead of the word “ action,” to extend the jurisdiction of the courts in civil cases. The words “any cause” were intended to embrace and have the same meaning as the words ‘ ‘ any criminal action ” and ‘ ‘ any civil action;” both classes of actions being brought under the same rule as to the character of the showing to be made. Manifestly the proviso was not intended to enlarge the jurisdiction, since it merely continued in force “any and all suits, proceedings, causes, or actions ” pending under the act of 1905, which this court had held did not apply in condemnation proceedings.

Application denied, with costs.

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


text:
    BOARD OF POLICE COMMISSIONERS OF THE CITY OF WYANDOTTE v. MAYOR AND COMMON COUNCIL OF THE CITY OF WYANDOTTE.
    Judgments — Conolusiveness of Adjudication.
    A judgment in mandamus deciding that it was the duty of the common council of a city to make an appropriation to cover the estimate made by the police hoard of the city for a particular year imposes the duty upon the council of allowing the pay roll of the police officers, and mandamus will issue to compel performance, the objections of the council being the same in both cases.
    Certiorari to Wayne; Hosmer, J.
    Submitted October 6, 1908.
    (Calendar No. 22,938.)
    Decided November 2, 1908. .
    Mandamus by the board of police commissioners of the city of Wyandotte to compel the mayor and common council of the city of Wyandotte to allow a certain pay roll. There was an order granting the writ, and respondents bring certiorari.
    Affirmed.

      A. B. Hall and Ari E. Woodruff, for relator.
    P. J. M. Hally, for respondents.
   Per Curiam.

On May 19th last the relator filed a petition in this court against the respondent, to compel a compliance by the respondent with the law requiring it to make an appropriation for the support of the police department of the city for the year 1908. The petitioner presented a valid excuse for not applying to the circuit court. An answer was filed May 26th. The case was heard May 27th; and the following order entered:

“This cause having been heard upon the petition of the relator, the answer of respondent, and the briefs and arguments of counsel, and the court having duly considered the same, and no sufficient cause being shown to the contrary, thereupon it is ordered that a peremptory writ of mandamus issue out of and under the seal of this court to compel it, the common council of the city of Wyandotte, to forthwith appropriate the sum of $5,000 to cover the estimate made by the said police board of the city of Wyandotte for the police fund for the fiscal year 1908.”

No opinion was filed. On June 1st relator sent a communication to the common council, accompanied by a pay roll of the marshal and policemen of the city. The respondent refused to allow the pay roll. Thereupon the relator filed a petition in the circuit court for the writ of mandamus to compel its allowance. The circuit court granted the writ, and the respondent has brought the case before us for review upon the writ of certiorari.

The issue in this case is substantially the same as in the former. The respondent, in its answer to the petition, admits that the same objections were made to that proceeding as are made to this. It was there decided that it was the duty of the respondent to make the appropriation to pay the marshal and policemen employed by the relator. If it is the duty of the respondent to raise the funds, it was likewise its duty to pay them out on the order of the relator. It is proper to say, in view of the arguments presented, that it was not determined by our prior decision, and is not now held, that the common council of the city of Wyandotte may not, in good faith, and at a proper time, by ordinance or otherwise, fix the number of policemen and watchmen, with pay, to be appointed by the board of police commissioners.

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


text:
    MAHON v. WAYNE CIRCUIT JUDGE.
    Mandamus — Propriety—Necessity oe Writ.
    Mandamus will not issue to compel the vacation of an order denying a temporary injunction where the return shows that a. preliminary injunction is not presently necessary to protect relator’s rights, and may never become necessary through the determination of relator’s suit upon the merits.
    Mandamus by Thomas J. Mahon to compel Joseph W. Donovan, circuit judge of Wayne county, to vacate an order denying a temporary injunction.
    Submitted October 6, 1908.
    (Calendar No. 23,066.)
    Writ denied November 2, 1908.

      Thomas J. Mahon, in pro. per.
    Navin, Sheahan & Bourke, for respondent.
   Per Curiam.

On September 19, 1908, relator presented to respondent his bill of complaint, in chancery, praying “that a preliminary injunction be issued out of and under the seal of . this court, commanding the said defendant, the Detroit Baseball Company, its officers' and agents, * * * prohibiting them and each of them from playing baseball at the grounds known as Bennett Park, and from using said park for the purpose of playing baseball on Sunday, September 20, 1908, and upon Sunday, September 27, 1908, and every other Sunday hereafter, and upon final hearing to forever prohibit the use of said grounds for the playing of baseball on Sunday by the aforesaid defendants,” etc. Respondent having refused to issue the preliminary injunction prayed for, relator applied to this court on September 22, 190.8, for the writ of mandamus to compel respondent to issue the injunction. An order to show cause was issued, returnable October 6th, and respondent filed his return on October 5th.

Respondent’s return shows, among other things, “that he is advised upon information and belief that it is not the intention of the Detroit Baseball Company to attempt the playing during this present season of any further games of baseball on Sunday, and that consequently no further such alleged nuisance will be committed during the balance of this season. * * * This respondent respectfully shows untó the court that, after carefully considering the matter of petitioner’s motion, he has decided to grant the prayer of petitioner, by issuing an order to show cause; * * * that, in view of this respondent’s determination to issue said order to show cause, he respectfully requests this honorable court to withhold its decision in relation to this petitioner’s petition for mandamus until a return is had to the order to show cause,” etc. It is apparent that a preliminary injunction is not necessary at the present time to protect the relator’s rights, and that it may never become necessary, through the determination of relator’s suit upon the merits.

For these reasons, the writ is denied.


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    BARTHEL v. CRIPPEN.
    Appeal and Error — Motion to Remand — Decision—Postponement.
    The decision of a motion to remand a chancery case to the circuit court for the introduction of testimony discovered since the appeal was perfected is reserved till the hearing of the appeal.
    Bill by Otto F. Barthel against George F. Crippen and Lewis Crippen for the specific performance of a contract. From a decree for complainant, defendants appeal: On motion to remand the record for a rehearing.
    Submitted October 6, 1908.
    (Calendar No. 22,361.)
    Motion denied November 2, 1908.

      Lee N. Brown, for the motion.

      Henry O. L. Forler, contra.
   Per Curiam.

This is a motion on behalf of defendants and appellants for the remanding of the record in the above-entitled cause to the circuit court for the county of Wayne, in chancery, for the introduction of further testimony on the part of defendants, alleged to be material and necessary to a just determination of the issues involved and to have been discovered since the appeal to this court was perfected.

In accordance with the practice approved by this court in Adams v. Field, 25 Mich. 16, the question of a rehearing will be reserved till the hearing of the appeal.


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    KERBS v. STATE VETERINARY BOARD.
    Physicians and Surgeons — Veterinary Surgeons — Registration — Statute—Construction.
    Act No. 244, Pub. Acts 1907, in effect June 27, 1907, requiring persons desiring registration as existing practitioners of veterinary medicine to apply before January 1, 1908, is not merely directory as to the time of applying, but is mandatory, since the general purpose of the act would in any event require such practitioners to apply within a reasonable time after the act took effect, and the legislature has determined what is a reasonable time.
    Mandamus by Leo W. Kerbs to compel the State veterinary board to register relator under the provisions of Act No. 244, Pub. Acts 1907.
    Submitted October 6, 1908.
    (Calendar No. 23,046.)
    Writ denied November 2, 1908.

      Cady & Crandall, for relator.

      John E. Bird, Attorney General (Arthur P. Hicks, of counsel), for respondent.
   Ostrander, J.

In 1899 the legislature passed an act:

“To protect the professional title and degrees of veterinary surgeon, doctor of veterinary medicine and surgery, and veterinarian, and their abbreviations, and to restrict the use of such titles and their abbreviations to regular graduates of recognized colleges or schools of veterinary medicine and surgery and those having passed a satisfactory examination before a State veterinary board; to create a State veterinary board for registration of veterinary surgeons, doctors of veterinary medicine and surgery, and veterinarians.” Act No. 191, Pub. Acts 1899.

In 1907 it passed an act:

“To protect the title and to regulate the practice of veterinary medicine and surgery in allits various branches in the State of Michigan; providing for a State veterinary board and prescribing its duties; regulating existing practitioners ; governing undergraduates and reciprocity with other States and provinces; prescribing penalties for its violation and repealing all inconsistent acts.” Act No. 244, Pub. Acts 1907.

The act was approved June 27, 1907, and took immediate effect.

It is provided in section 5 of the act last referred to:

“ From and after January first, nineteen hundred eight, it shall be unlawful for any person to practice or'attempt to practice veterinary medicine or surgery in any of its various branches, unless he shall be duly registered by the State veterinary board. No person shall be registered by the State veterinary board as a veterinarian or veterinary surgeon, until he shall have furnished satisfactory proof of his identity and that he is the lawful and regular possessor of a diploma from a regular veterinary college or veterinary department of a State institution of learning or college of medicine having a curriculum of at least three sessions of six months each, and requiring personal attendance of its pupils, and that said diploma was issued by such school or college direct to him: Provided, That the provisions of this section shall not be applicable to those persons who are duly registered veterinary surgeons at the time -this act takes effect.”

And in section 4:

“Any person who has practiced veterinary medicine or surgery in their various branches in this State for five years prior to the passage of this act shall be eligible to become registered as an existing practitioner, and entitled to receive a certificate of registration from the State board as such: Provided, That any-such person shall, on or before the first day of January, nineteen hundred eight, file with the secretary of State veterinary board an affidavit, showing that he has been continuously so engaged and shall also present letters of recommendation from ten reputable freeholders and stock raisers of this State, who shall have employed him, showing him to be qualified to practice veterinary medicine or surgery as above set forth. All those registered under this, clause shall not be entitled to use any college degree or any abbreviation thereof. All veterinarians now registered under authority of act one hundred ninety-one of public acts of eighteen hundred ninety-nine, or entitled to be registered under said act, when registered, shall be recognized' and known as the regular veterinarians. It shall be unlawful for any person except a regular veterinarian under the provisions of this act, to use any college degree, or their abbreviations in connection with his name, or profession which might lead the public to believe that he has had a college course of veterinary training: Provided, That nothing in this act shall prevent any person from treating his own animal or assisting his neighbor.”

Relator on May 26,1908, applied to the State veterinary board to be registered, basing his right to registration upon his affidavit and upon recommendatory letters from freeholders. He sets out in his petition that he has been in the continuous practice of veterinary medicine and surgery for the last 12 years, and in his affidavit filed with respondent board says he had so practiced in this State continuously for five years prior to the passage of the act of 1907. Registration was refused upon the ground that the application therefor should have been made on or before January 1, 1908.

The law of 1899 (section 5) forbade any person not having the certificate of the State board, and also of the county clerk,—

“To use or append to his name the term ‘Veterinary Surgeon,’ ‘Doctor of Veterinary Medicine and Surgery,’ or ‘Veterinarian,’or any title, name, abbreviation, degree or description implying or calculated to lead people to infer that he is a regular registered practitioner under this act.”

It did not forbid others to practice. It provided for the registration and the issuing of certificates to graduates of regular veterinary colleges and schools, and also for an examination of those not graduates by the State board upon subjects designated, such persons being entitled, after satisfactory examination, to a certificate and to registration as veterinary surgeons, doctors of veterinary medicine and surgery, or veterinarians. The evident legislative purpose is (1) to forbid the practice of veterinary medicine or surgery after January 1, 1908, by unregistered persons; (2) to restrict registration to (a) those registered under authority of the act of 1899 and those entitled to be registered under that act, (6) to those who, like relator, claim the right under the provisions of section 4 of the act of 1907, and apply for registration on or before January 1, 1908, (c) to graduates of regular veterinary colleges; (3) to fix a time within which existing practitioners might be registered as such. Relator could in no event be registered as a regular veterinarian, but only as an existing practitioner. His contention is that having been eligible at the time the act went into effect to become registered as an existing practitioner, and entitled to receive the certificate of the respondent board as such, the provision fixing the time for making his application for registration must be held to be directory merely. The requirement of status, viz., five years’ continuous practice prior to the passage of the act, is not merely directory, nor the provision for evidence of such status. The general purpose of the act and the particular provisions referred to would in any event require one like relator to apply for registration within a reasonable time after the law became operative. The legislature has determined what is a reasonable time.

The writ is denied.

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


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    PEOPLE, ex rel. McCALLUM, v. GEBHARDT.
    1. Arrest — Capias ad Respondendum — Premature Issuance.
    The fact that a writ of capias ad respondendum was sued out on the day before the affidavit supporting it was made and the order to hold to bail indorsed, did not render it void as prematurely issued, since it was not effective until the order for bail was indorsed, and the suit was not begun until the writ was delivered or transmitted to the officer with the bona fide intention of having it served.
    3. Sheriffs and Constables — Escape — Liability — Arrest — Sufficiency.
    Where a defendant submitted to arrest on a capias ad respondendum and at once set about procuring bail, but before bail was procured was rescued during the time apparently devoted to securing bail, the writ was so far executed as to involve the sheriff and his sureties, though a copy of the writ and affidavit had not been served on the defendant, more especially since the service might have been at any time completed, and to hold otherwise would be to permit the sheriff to profit by his failure to perform his legal duty.
    Error to Cheboygan; Shepherd, J.
    Submitted October 6, 1908.
    (Docket No. 32.)
    Decided November 2, 1908.
    Case by the People of the State of Michigan, on the relation of Maud McCallum, against Otto H. Gebhardt, sheriff, and Jacob J. Post, Arthur M. Gerow, and John B. McArthur, sureties on his official bond, for the escape of a prisoner arrested on a capias ad respondendum. There was judgment for plaintiff, and defendants bring error.
    Affirmed.

      Frost & Sprague, for appellants.

      Beilley & McPhee, for appellee.
    The defendant Otto Gebhardt during the year 1906 was sheriff of Cheboygan county; the other defendants being súreties on his bond. On August 16, 1906, the plaintiff Maud McCallum caused to be issued out of the circuit court for Cheboygan county a writ of capias ad respondendum against one George Schoettle, an infant about the age of 13 years. On August 17, 1906, the plaintiff made an affidavit, alleging, in effect, that said George Schoettle had thrown a firecracker at her which had exploded and caused her horse to throw her from the buggy, from which she received injuries. An order for bail in the sum of $2,000 was indorsed on the writ by the circuit judge August 17, 1906. The deputy sheriff who had the writ returned that he served a copy of said summons on said George Schoettle on August 17, 1906, showing him the original with the seal impressed thereon and delivering to him a true copy thereof, and that “ I took possession of the person of said defendant and he thereafter escaped from my custody.” It appears that in that case the defendant George Schoettle, by his guardian ad litem, moved the court to quash the writ for the reason that the affidavit was made on a day succeeding the issuing of the writ. He also moved upon numerous affidavits to set aside the return of the sheriff as being .a false return, inasmuch as no arrest was made and no copy of the writ and affidavit was served upon said defendant. The court overruled both motions, after which there was a general appearance on the part of said defendant, a plea of the general issue was filed, and, after a trial upon the merits, verdict and judgment in favor of the plaintiff for the sum of $5,000 was duly rendered. On June 24, 1907, the instant suit was brought to recover damages for an alleged unlawful escape. Plaintiff recovered a judgment for $2,100 February 17, 1908. The defendants contend:
    (1) That the judgment obtained by Maud McCallum against George Schoettle is void.

      First. Because the writ of capias therein was prematurely issued; it having been issued the day before the making of the affidavit therefor.

      Second. Because said writ was never lawfully executed, there never having been served upon the defendant a copy of the affidavit on which said writ was founded and said defendant never having béen arrested, and the court erring in not permitting said George Schoettle to have the return amended to show that no arrest was made under the writ.
    (2) That, the judgment in McCallum v. Schoettle being void, there is no basis for recovery in this case.
    (8) That the writ of capias in McCallum v. Schoettle being prematurely issued, and therefore void, the sheriff was not authorized to arrest said Schoettle, and cannot therefore be sued as for an escape.
   Ostrander, J.

(after stating the facts). The writ of capias ad respondendum was not prematurely issued. The date of a writ is undoubtedly prima facie evidence of the time it was actually issued (Howell v. Shepard, 48 Mich. 472), but a suit is not commenced by writ until the writ is delivered or transmitted to an officer with the bona fide intention of having it served (Dedenbach v. City of Detroit, 146 Mich. 710). The statute (3 Comp. Laws, § 9998) permits personal actions to be commenced by capias ad respondendum in certain cases “where an order for bail shall be indorsed on the writ by a judge of the court from, which the writ issues, * * * directing the amount in which bail is to Be taken.” The writ is, in form, both a summons addressed to the defendant to appear and defend the suit, and a command, addressed to the sheriff, to take the defendant into custody and keep him until discharged according to law. It is absolutely noneffective as authority to make an arrest until, upon the affidavit of the plaintiff, or some person in his behalf, showing the nature of the plaintiff’s claim (3 Comp. Laws, § 9999), the order directing the amount in which bail is to be taken is indorsed “upon the writ.” It is then, and not until then, a warrant to seize the person of the defendant. It is then issued, and upon probable cause supported by oath or affirmation. The statute does not require the filing of the affidavit with the clerk as a condition precedent to the issuing of the writ. Exhibiting it to the clerk can accomplish no useful purpose. It must in any event be considered by another and a judicial officer. Johnson v. Morton, 94 Mich. 4. The point is ruled by Baker v. Dubois, 32 Mich. 92; Taylor v. Kalamazoo Circuit Judge, 100 Mich. 181, and not by Buckley v. Lowry, 2 Mich. 418. See, also, Clark v. Kent Circuit Judge, 125 Mich. 449. The judgment of the plaintiff against George Schoettle is not void because the writ was prematurely issued.

- The judgment is not void because the writ was not lawfully executed. The testimony produced upon the trial strongly tends to prove that the defendant in the capias suit was, after being taken into custody by the sheriff, rescued not by force, but by a trick. The defendant was a boy about 13 years of age. That he and his father understood that he was under arrest there can be no doubt. Josselyn v. McAllister, 25 Mich. 45. The father of the boy received from the sheriff copies of the writ and affidavit, and the officer, upon his plea, permitted the boy for the night to go home with his father, who promised to produce him in the morning and did produce him. The father, the boy, and the sheriff journeyed in the morning to Cheboygan by rail. The father desired to confer with counsel, and did so. The sheriff having been induced to go away from the office of counsel so employed to the office of counsel for the plaintiff to confer with them upon the subject of the responsibility of a suggested surety upon a bond to be given to the sheriff, the boy was, by advice of one of the counsel for the father, removed from the county, and, being a resident of Cincinnati, in the State of Ohio, was placed beyond the peradventure of recapture. As to these facts there seems to be no dispute. It is proper to state that the attorney involved in the related transaction was not one of those now appearing for the defendants. 3 Comp. Laws, § 9995, provides the manner of execution of writs of capias ad respondendum. This section was amended in 1899 (Act No. 168, Pub. Acts 1899) so as to read:

“Writs of capias ad respondendum shall be served by the sheriff, or other officer, by arresting the body of the defendant, and keeping him in his custody until discharged according to law, and serving a copy of the writ and of the affidavit or affidavits upon which said writ is founded upon said defendant.”

In this case the sheriff has returned that he served a copy of the summons. He does not in his return mention the affidavit. We are not prepared to say that where the defendant in such an action submits to arrest, and at once sets about obtaining bail, but escapes or is rescued before bail is obtained and during the time apparently devoted to securing such bail, the writ is not so far executed as to involve the sheriff and his sureties, even although a copy of the writ and affidavit has not, in fact, been served on the defendant. The objection, in the absence of a showing of prejudice, would not have availed the defendant in the capias suit. Pixley v. Berrien Circuit Judge, 121 Mich. 629. We take into consideration, however, the fact that in this case the service of the writ, according to law, might have been at any moment completed, and that the sheriff, if his contention is admitted, would profit by his failure to perform his legal duty.

The judgment is affirmed.

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


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    STEVENS v. OTTAWA PROBATE JUDGE.
    1. Certiorari — To Circuit Court — Return—By Whom Made.
    Where, upon certiorari to the circuit court to review its action in refusing to issue a mandamus, a question arises as to what was submitted to the court for its consideration upon the hearing, the circuit judge is the only party who has authority to determine that question, the clerk being only able to certify to the files and records in his custody, and the judge should, therefore, make the return.
    2. Same — Return—Immaterial Matters — Striking erom Files —Motion—Propriety.
    A motion to strike from the files, because of the inclusion of immaterial matters, a return to a writ of certiorari made by the circuit judge, was denied, since the immaterial matters could be excluded upon the hearing.
    Mandamus by Frederick W. Stevens, guardian ad litem of Edward P. Ferry, to compel Edward P. Kirby, probate judge of Ottawa county, to approve an appeal bond. There was an order denying the writ, and relator brings certiorari: On motions to require the clerk of the court to make return to the writ, and to strike from the files a return later filed by the circuit judge.
    Submitted October 13, 1908.
    (Calendar No. 23,052.)
    Motions denied November 2, 1908.

      Taggart, Denison & Wilson and Kingsley & Wicks, for the motions.

      Butterfield & Keeney and Walter I. Lillie, contra.
   Per Curiam.

This court issued a writ of certiorari, directed to the judge of the circuit court for the county of Ottawa, to review the action of the circuit court in refusing to issue the writ of mandamus to the judge of probate of said county. The writ was served upon the clerk of the circuit court. He declined to make a return for the reason that, in his opinion, it was the duty of the circuit judge to make the return, as the writ was directed to him. The relator then made a motion in this court for an order directing the clerk to make the return. Meanwhile the writ was sent to the circuit judge, who has made a return, returning all the records and proceedings specified in the petition for the writ of certiorari, and also other proceedings, and has incorporated in it denials of certain matters alleged in the relator’s petition, and has incorporated other documents which he returns were submitted to him, and were considered in his decision denying the writ of mandamus. The relator then made another motion in this court moving to strike the return from the files. Inasmuch as the relator now has before the court all the papers and proceedings which he asked for, the question of whether the writ should be served upon the clerk of the court or upon the circuit judge is purely academic.

We may say, however, that, where a question arises as to what was submitted to the court for its consideration upon the hearing, the circuit judge is the only party who has authority to determine that question. The clerk cannot do it. He could only certify to the files and records in his custody. In this case, therefore, we think the circuit judge is the proper party to make the return. The court now has the entire record before it. If the circuit judge has returned immaterial matters, they will be excluded upon the hearing. The assertions or denials of, or conclusions reached by, the circuit judge based upon the evidence are not an essential part of the return, and will not be considered except so far as they are based upon the record. We therefore see no occasion to determine under what conditions a writ of certiorari should be served upon the clerk and when upon the circuit judge. Neither do we think it essential now to examine this extremely large record to determine whether any portion of the return should be stricken from the files. All these questions can be taken care of when the case is heard upon the merits.

The motions are therefore denied.


author: Grant, C. J.

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    WEISMAN v. NEWTON BEEF CO.
    1. Judgments — Equitable Belief — When Granted — Diligence.
    A bill to set aside a judgment must show that complainant has been diligent in prosecuting his remedy at law, and if it appears that he had the opportunity to interpose his defense at law and failed to avail himself of it equity will not interfere.
    2. Same — Neglect of Attorney.
    The neglect of one’s attorney, to whom he intrusted his defense to a suit at law, will not avail to set aside the judgment rendered against him.
    3. Same — Justice’s Judgment — Diligence.
    Complainant handed a justice’s summons to his attorney, requesting him to represent him, and before the return day the attorney verbally arranged with plaintiff’s attorney to adjourn the cause one week without pleadings. Plaintiff’s attorney neglected to inform his clerk of the arrangement, and the clerk appeared on the return day and took judgment. Neither complainant or his attorney paid any further attention to the case until the judgment had been docketed in the circuit court and execution issued, when a bill was filed to set the judgment aside. Held, that complainant was not entitled to relief, since it was his or his attorney’s duty to appear upon the adjourned day, and if either of them had done so the judgment might have been set aside on consent, . or complainant might have applied to the circuit court for leave to appeal.
    Appeal from Wayne; Donovan, J.
    Submitted October 9, 1908.
    (Docket No. 10.)
    Decided November 2, 1908.
    Bill'by Isadore Weisman against the Newton Beef Company to set aside a judgment and execution. From an order overruling a demurrer to the bill, defendant appeals.
    Reversed, and remanded.

      Adam E. Bloom, for complainant.

      May & Dingeman, for defendant.

      The purpose of this suit is to set aside a judgment (and execution issued thereon) rendered in justice’s court against complainant in favor of defendant, and to obtain a new trial. The bill alleges that the defendant company-brought suit by summons February 7, 1907, returnable February 19th. Complainant handed the summons to his attorney, William P. Corbett. The day prior to the return day Mr. Corbett called up Mr. Groesbeck, the attorney for the company, by telephone, and asked that the case be adjourned one week without pleadings. Mr. Groesbeck assented and promised to inform his clerk and instruct him to appear on the return day, and have the case adjourned one week. Mr. Groesbeck forgot to notify his clerk, who appeared in court on the return day and took judgment. Shortly after, but just when is not alleged, a transcript of the judgment was filed in the circuit court and execution issued. The sheriff called upon complainant immediately thereafter with said execution and ' informed him that he was ready to make a levy; thereupon complainant instituted this suit for the purpose above stated. Attached to the bill of complaint is the affidavit of Mr. Groesbeck admitting the arrangement and his forgetfulness to instruct his clerk; also the affidavit of Mr. Corbett stating that the arrangement was that the case should be adjourned “ one week, namely, from February 19th to February 26th.” To this bill the defendant interposed a demurrer, which was overruled.
   Grant, C. J.

(after stating the facts). He who invokes the aid of a court of equity to set aside a judgment rendered against him in a court of law must show by his bill that he has been diligent in prosecuting his remedy at law. If he had the opportunity to interpose his defense at law and failed to avail himself of it, a court of equity will close its door to him.

Complainant does not allege that he was not informed by his attorney of the date of adjournment, and the affidavit of his attorney is entirely silent upon this point. If, however, his attorney failed to notify him and he relied upon his attorney to attend to the suit and his attorney neglected it, the client alone, so far as the opposite party is concerned, is responsible for the negligence of his attorney. Foster v. Wiley, 27 Mich. 244; Clark v. Ewing, 93 Ill. 577. Neither the company nor its attorney were under any obligation to notify complainant or his attorney of the adjourned day. It was the duty of the defendant in that suit and his attorney to appear in the justice’s court on the adjourned day, the 26th. Had either of them performed this duty, the complainant would have had ample time either to have had the judgment set aside by consent, or, failing in that, to have applied to the circuit court under the statute for leave to appeal. Under > the allegations of the bill, the company could have taken judgment by default on the adjourned day, for complainant was not present to make defense. Complainant paid no attention to the suit against him for nearly three months, and not until an execution was presented to him. He proffers no excuse for his neglect, neither does his attorney. He therefore has no standing in a court of equity, for he has not been deprived of his remedy at law by the fraud of the opposite party, or by accident or mistake, unmixed with fault or negligence on his own part. Kelleher v. Boden, 55 Mich. 297; Gray v. Barton, 62 Mich. 196; Valley City Desk Co. v. Insurance Co., 143 Mich. 468; Hiles v. Mosher, 44 Wis. 601.

Decree reversed, with costs of this court, and case remanded for further proceedings.

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