text:
    VOHLERS v. E. H. STAFFORD MANUFACTURING CO.
    1. Process — Summons—Return Day-Time for Appearance.
    If the fifteenth, day after service of a summons falls on Sunday, defendant has all the following day in which to appear. Circuit Court Rules 1 and 36; 3 Comp. Laws, § 9989.
    2. Defaults — Opening and Vacating — Premature Entry.
    A default entered upon Monday, March 17th, for failure to appear to a summons served on Saturday, March 2nd, was premature, and a judgment taken on Wednesday, March 19th, should have been vacated on defendant’s motion, although no affidavit of merits accompanied it.
    Error to Ionia; Davis, J.
    Submitted June 19, 1912.
    (Docket No. 77.)
    Decided July 10, 1912.
    Assumpsit by Eugene L. Vohlers against the E. H. Stafford Manufacturing Company. From an order denying defendant’s motion to set aside its default, it brings error.
    Reversed.

      Elilis & Ellis, for appellant.

      Locke & Sheldon, for appellee.
   Stone, J.

This case presents a question of practice under our rules. The case was commenced in the circuit court by summons issued and served on March 2, 1912.

The summons was in the form prescribed by Circuit Court Rule 1, and contained the following provision:

“ Vou are required to have your appearance filed or entered in the cause, in accordance with the rules and practice of the court, in person or by attorney, within fifteen days after service of this summons upon you.”

The rule above referred to provides that:

“ Original writs for the commencement of suit shall notify the defendant to appear in person or by attorney within fifteen days after service of the writ upon him, to answer to the suit of the plaintiff according to the rules and practice of the court.”

By the terms of our statute (section 9989, 8 Comp. Laws) the return day of original writs is now governed exclusively by the rule above referred to. That section of the statute reads as follows:

“All original writs in personal actions shall be a summons ora capias ad respondendum according to such form as shall be fixed by the general rule of court. Said writs may be issued in vacation or term time and shall be made returnable according to the general rule of court.”

The fifteenth day after service of the summons upon the defendant was Sunday, March 17,' 1912. On the following day, Monday, March 18th, plaintiff’s attorney filed an affidavit of nonappearance, and entered defendant’s default for want of appearance. On Wednesday, March 20th, after waiting one day in term after default taken as above stated, plaintiff took judgment against the defendant for the amount claimed. On March 20th defendant duly mailed to the plaintiff’s attorneys a notice of retainer, which, under Circuit Court Rule 29, subd. b, would operate as of March 21st. On April 3, 1912, defendant gave notice of a motion to set aside the default and judgment for the reasons that said default and judgment were prematurely taken, without waiting the time provided by the rules of the court, and are irregular and void, and that before any default was regularly entered in said case, and judgment regularly taken, defendant entered its appearance by its attorneys by giving notice of retainer. On April 8th the circuit judge denied defendant’s motion on the merits.

Defendant has brought the case here by writ of error. The first and second errors assigned are as follows:

“(1) The court erred in permitting judgment in this cause to pass by default, entered on March 18, 1912, it appearing by the record that the summons in said cause was issued and served on Saturday, March 2, 1912, and the 15th day after the service was Sunday, March 17, 1912, and under and by virtue of the rules of the circuit court the defendant had all of Monday, March 18,1912, to enter appearance in said cause, and no default could be taken against it on that day, and that the plaintiff in said cause, on said Monday, March 18, 1912, filed an affidavit by Alfred R. Locke, his attorney, of nonappearance, and took a default against said defendant on said Monday, March 18, 1912, which was the only default ever entered in said cause, and, based upon said default, so prematurely and illegally entered, plaintiff did on Wednesday, March 20, 1912, take a default judgment, which is the judgment in this cause, and this defendant says that plaintiff never had a legal default because he took it prematurely, and that he has not obtained a legal judgment in said cause because the judgment obtained is based on an illegal default, and was taken at least one day before it could have been taken under the rules and practice of the circuit court if he had waited to obtain a legal default.
“ (2) The summons in this cause was served on Saturday, March 2, 1912, as appears from the return of the officer indorsed thereon. It required the defendant to appear within 15 days, and Circuit Court Rule 36 provides, in substance, that the time for complying with the exigency of a rule, order, or notice, pleading, or paper shall exclude the day of service, and shall include the day on which compliance therewith is required, except when the said day of compliance shall fall on Sunday, in which case the party shall have the next day to comply therewith. It appearing by the record that the fifteenth day after service of the writ of summons in this case was Sunday, March 17, 1912, and that, in violation of Circuit Court Rule 36, the plaintiff’s attorney entered defendant’s default on Monday, March 18, 1912, and that no other default has ever been entered in said cause, and that judgment was entered on said default on Wednesday, March 20, 1912, and Circuit Court Rule 12 c providing, c Hereafter a further order making a default absolute shall not be necessary, but judgment shall not be entered on a default until at least one day in term has passed after such default,’ and it appearing in this cause, by the records, that default had been entered at least one day too soon, the circuit judge erroneously permitted a violation of both rules by giving a judgment to the plaintiff on Wednesday, March 20, 1912.”

Circuit Court Rule No. 36, subd. a, is as follows:

“ The day on which any rule shall be entered, or order, notice, pleading or paper served, shall be excluded in the computation of the time for complying with the exigency of such rule, order or notice, pleading or paper, and the day on which a compliance therewith is required shall be included, except where it shall fall on Sunday, in which case the party shall have the next day to comply therewith.”

1. It is the claim of counsel for appellant that the circuit court erred in permitting judgment to pass by a default entered on March 18th, as the fifteenth day after Bervice was Sunday, and that under and by virtue of the rule the defendant had all of March 18th in which to enter his appearance, and that no default could legally be taken on that day; that the default entered on March 18th was premature and void, and that, being the only default ever entered, no legal judgment could be based on that default. They contend that had we a statute upon the subject the case might be different, but that we are here concerned simply with the correct construction and effect to be given a practice rule.

It is further urged that our Circuit Court Rule 36 is an exact transcript of the New York Supreme Court Rule 62, which had been repeatedly passed upon and construed by the courts of that State prior to its adoption by this court. The following New York cases are cited by appellant: Bissell v. Bissell, 11 Barb. (N. Y.) 96; Cock v. Bunn, 6 Johns. (N. Y.) 326; Borst v. Griffin, 5 Wend. (N. Y.) 84. We have examined these cases, and they seem to sustain the claim of appellant. In Bissell v. Bissell, supra, the distinction is made between the construction of a statute and the construction of a rule. The question there arose under the construction of a statute requiring a justice of the peace to render judgment, and enter the same in his docket, within four days after the cause was submitted to him for final decision. In the case under consideration, the cause was submitted on June 28th, and judgment was rendered on Monday, July 3d, following. The single question was whether the judgment was entered in season. The court said:

“Were this a matter of practice merely, there could be no doubt that the judgment must be held regular. By the sixty-second rule of the Supreme Court, as well as by several adjudged cases, the day on which any rule shall be entered, or order, notice, pleading, or papers served, shall be excluded in the computation of time for complying with the exigency of such rule, order, notice, pleading, or paper; and the day on which a compliance therewith is required, shall be included; except when it shall fall on a Sunday, in which case the party shall have the next day to comply therewith. ([Anonymous] 2 Hill, 377, note; [Charles v. Stansbury] 3 Johns. 261; [Merchants’ Ins. Co. v. Simmons] 10 Wend. 560). The same rule prevails in England. In matters of practice, in all cases in which any number of days (not expressed to be clear days) is prescribed by the rules of practice of the courts, the same shall be reckoned exclusively of the first day, and inclusively of the last day, unless the last day shall happen to fall on a Sunday, Christmas Day, or Good Friday, or a day appointed for a public fast, or thanksgiving, in which case the time shall be reckoned exclusively of that day also. (See 1 Dowl. P. C. 200; 8 Bing. 307; 3 B. & Adol. 393; 2 Tyr. 351; 4 Bligh. N. S. 608, cited in Harrison’s Digest, 3d Vol., p. 6,328.) * * *
“In respect to the construction of statutes the rule is otherwise in this State.”

In Borst v. Griffin, supra, it is distinctly held that, when the twentieth day of the rule to plead to a declaration happens on a Sunday, the defendant has the whole of the next day in which to plead, and a default entered on that day is premature. In Cock v. Bunn, supra, decided in 1810, it was held that, where the rule to plead expires on Sunday, the defendant has the next day in which to plead. Where the last day is Sunday, that is to be rejected, adopting the practice of the English courts. In an anonymous case found in 2 Hill (N. Y.), at page. 375, there is an extended note upon this subject. Referring to page 377, we find the following:

“ In the construction of rules of court in respect to time for pleading and other mere matters of practice, it is well settled that, if the last day falls on Sunday, the party has the whole of the next day in which to perform the act required. (See rules Supreme Court 62; Cock v. Bunn, 6 Johns. 326; Borst v. Griffin, 5 Wend. 84; Anonymous, 1 Stra. 86; Bullock v. Lincoln, 2 Stra. 914; Studley v. Sturt, Id. 782; Lee v. Carlton, 3 T. R. 642; Solomons v. Freeman, 4 T. R. 557; Harbord v. Perigal, 5 T. R. 210; Asmole v. Goodwin, 2 Salk. 624; Shadwell v. Angel, Burr 56; 1 Sellon’s Prac. 95; 1 Arch. Prac. 117; 1 Tidd’s Prac. 433; Grah’s Prac. [2d Ed.] 220, 230, 713.)”

Many cases from other States are cited by appellant in support of this rule.

It is also claimed that this court has construed this rule as contended for in the recent case of Moreland v. Lena-wee Circuit Judge, 144 Mich. 329 (107 N. W. 873), in which case this court construed Circuit Court Rule 58,137 Mich, xxxvii (108 N. W. v), erroneously called Supreme Court Rule 58, in connection with Circuit Court Rule 36. Circuit Court Rule 58 provides, in substance, that in cases pending and at issue when the rule took effect a motion for change of venue should be entered within 20 days therefrom. The rule took effect February 20, 1906. On March 12, 1906, a motion for change of venue was made in the case. Justice Moore, referring to Rule 58, said:

“It took effect February 20, 1906. It provides that in cases pending and at issue when this rule should take effect said motion shall be entered within 20 days therefrom. The 11th of March came on Sunday. The motion was made on Monday, the 12th of March. We think it was made in time, under Supreme Court. Rule 58, construed in connection with Circuit Court Rule 36 and Supreme Court Rule 25.”

Supreme Court Rule 25 is identical with Circuit Court Rule 36.

It is claimed that under this ruling this court, impliedly at least, held that, had a default been attempted for failure to move on or before March 11th, the same would have been set aside, as the party had all of Monday, March 12th, in which to make his motion. The plaintiff claims that defendant’s counsel are wrong in their contention, and that, as defendant could have entered its appearance or served notice of retainer at any time within 15 days after the service of summons upon it on March 2d, the construction of the rule by defendant’s counsel is not correct. Plaintiff says:

"The thing to be done was not required to be done on the fifteenth day. It could have been done on any day after service of the process, excepting, of course, Sundays. There were three Sundays within the 15 days, the 3d, 10th, and 17th. There would be as much reason for allowing three extra days beyond the 17th, as for one day. If obedience to the summons would have required the defendant to appear or give notice of retainer on the fifteenth day, then, under Rule 36, it would have had the following day.”

Counsel for plaintiff quote a part of section 314, 1 Green’s Practice (3d Ed.). The whole of the section reads as follows:

“ In computing time the day on which any order, notice, pleading, or other paper is served must be excluded; and the day on which compliance therewith is required must be included, except when it falls on a Sunday, in which case the party has the whole of the next day to comply therewith. This rule, however, does not seem to apply to special proceedings in which both days are generally excluded. Where a statute requires an act to be done within a certain number of days, Sunday is included though it be the last day for doing the act, except where it comes within the rule of court stated above. In many cases intervening Sundays have been excluded in the computation of time within which to do an act, while in cases relating to notices regulated by rules of the court such Sundays have been included.”

Counsel for plaintiff also cite the following cases: Drake v. Andrews, 2 Mich. 204; Anderson v. Baughman, 6 Mich. 297; Corey v. Hiliker, 15 Mich. 314; Dale v. Lavigne, 31 Mich. 149; Harrison v. Sager, 27 Mich. 476. In Drake v. Andrews, supra, this court was dealing with the statute providing that an appeal from a decree in chancery must be claimed and entered within forty days from the time of making such decree; and it was held that, where the fortieth day was Sunday, the appeal could not be taken on the following Monday. But the court said:

“In the construction of rules of court in relation to pleading and other mere matters of practice, it is well settled that if the last day fall on Sunday, the party has the whole of the next day in which to perform the act required. See the authorities cited at the end of an anonymous case in 2 Hill [N. Y.], 376, 377.”

After a review of the. authorities, the court proceeds:

“The court says in Bates v. Loomis, 5 Wend. [N. Y.] 136:
“ ‘ It is the ordinary course of the court to enlarge the time to plead, or other time prescribed for any other purpose by the rules or practice of the court, upon cause shown; but neither a commissioner in vacation nor the court in term can enlarge the time within which an act is to be done where such time is regulated by statute. The rules and practice of the court being established by the court may be made to yield to circumstances to promote the ends of justice. Not so as to a statute; it is unbending, requiring implicit obedience as well from the court as from its suitors. The court possesses no dispensing power.’ * * *
“We must stop where the statute stops, and therefore we are reluctantly constrained to grant the motion of the appellee and dismiss the appeal.”

In Anderson v. Baughman, supra, the rule relating to hearings in this court was under consideration, and it was held that in computing time on such notices the day on which the notice was served was to be excluded, and the first day of the term included. There • was an intervening Sunday, which was included in such computation, but it will be noted that the last day did not fall on Sunday, hence the case does not apply here. Corey v. Hiliker, supra, is to the same effect. In Harrison v. Sager, supra, it was held by a divided court that under the statute requiring the justice to render judgment within four days after a case shall have been submitted to him for his final decision, a judgment rendered on the fifth day was void, even though the fourth day was Sunday, following the New York rule in Bissell v. Bissell, supra. Chief Justice Christiancy said:

“ If the statute required the judgment to be rendered on the fourth day, and it was not competent for him to render it upon the first, second, or third, there would be strong reason for saying that Sunday should be excluded; but as it is just as competent for him to render the judgment on any other of the four days, there is no more reason for excluding Sunday because it happens to be the last, than if it happened to be one of the preceding three.”

This is the same reason that is urged by appellee in the instant case, but the distinction between a statute and a rule of practice should be kept in mind. We think, however, that on principle there is much force in the language of Justice Campbell in the dissenting opinion, wherein he said:

“ To include Sunday is to limit him (the justice) to three judicial days, and to raise a distinction which gives him more time in some cases than in others, which is not, I think, a conclusion to be favored.”

In Dale v. Lavigne, supra, the last-named case was held controlling in construing the statute requiring an appeal from the judgment of a justice to be perfected within five days after the rendition of the judgment; and, where the fifth day was Sunday, it was held that Monday was too late. We are of opinion that under Circuit Court Rule 36, as construed by the New York courts, and by this court, the default entered in this case was premature and void.

2. The default having been prematurely entered, it cannot be said that the default “was duly filed or entered” within the meaning of Circuit Court Rule 12, subd. b, and it must follow that the judgment entered on March 20th was premature and void. The defendant had all day Monday, March 18th, in which to appear. Its default could not have been properly entered until Tuesday, March 19th. Subdivison c of Circuit Court Rule 12 provides that:

“Hereafter a further order making a default absolute shall not be necessary, but judgment shall not be entered on a default until at least one day in term has passed after such default.”

That one day in term would properly have oeen Wednesday, the 20th, if we are to exclude the earliest day on which the default might have been legally entered under Rule 36, to wit, Tuesday, the 19th. Therefore the judgment on Wednesday, March 20th, was premature and void. Thursday, March 21st, was the first day upon which judgment could have been legally entered. On that day defendant’s appearance was entered. It is urged that defendant’s motion to set aside the default was not based upon an affidavit of merits, as provided by Rule 12. Our answer is that the rule contemplates a default “ duly filed or entered,” and does not apply to an irregular or premature default. In Pemberton v. Duryea, 5 Ariz. 8 (43 Pac. 220), the court held in a similar case that no affidavitof merits was necessary, citing 1 Black on Judgments, § 347, and using the following language:

“ The entering of the judgment was unseasonable, and it should have been vacated by the court upon its attention being called thereto, and the appellant allowed to defend, without requiring any affidavit of merits whatever.”

In Marks, Ex’rs, v. Russell, 40 Pa. 372, it was held that, in computing the time to plead, on 10 days’ notice, under a rule of court, the day on which the notice is given must be excluded, and, if the final day falls on Sunday, it also is to be excluded. Therefore, where a rule was entered and served December 27, 1860, and the ten days in which defendants therein were required to plead expired January 6, 1861, which was Sunday, a plea entered upon the following Monday was in time, and the judgment entered on that day against the defendants in default of the plea was premature and erroneous. The court said:

“ The judgment was premature. In counting the time to plead after notice, the day on which the notice is given is excluded, and, if the final day falls on Sunday, it also is excluded, and a plea entered on Monday is in time. A judgment entered on that day is erroneous.”

We are constrained to hold that the default and judgment were prematurely entered, and are void. The judgment of the circuit court is reversed and a new trial granted, and defendant should be permitted to plead to the declaration.

Moore, C. J., and Steers, McAlvay, Brooke, Ostrander, and Bird, JJ., concurred. Blair, JJ., did not sit. '


source: Caselaw Access Project

author: Moore, C. J.

license: Public Domain

text:
    GREEN v. MUSKEGON TRACTION & LIGHTING CO.
    1. Trial — Jury—Selection—Talesmen.
    During the examination of jurors the panel became exhausted, and the trial court directed the sheriff to summon a tales-man from the room. On seeing the person so selected, plaintiff’s attorney objected and requested that the court have names drawn from the regular lists under Act No. 194, Pub. Acts 1911. The court complied with the request, and defendant’s attorney excepted. Held, that the point was made with ' sufficient promptitude, and that the court did not abuse its discretion.
    2. Damages — Husband and Wire —Medical Expenses op Married Woman — Personal Injuries.
    Plaintiff, a married woman, running a boarding house on her own account, was rightly allowed to recover for medical services of a physician whom she had employed, and who looked to her for payment, in her action for personal injuries.
    3. Same — Special Damages — Married Women — Loss op Earning Capacity.
    And plaintiff was entitled to recover for loss of ability to perform ordinary labor.
    4. Same — New Trial — Verdict.

      Held, that a verdict of §3,050 should be reduced to $2,000. Moore, C. J. and Steere and Bird, JJ., dissenting.
    Error to Muskegon; Sullivan, J.
    Submitted June 19, 1912.
    (Docket No. 78.)
    Decided July 10, 1912.
    Case by Nancy Green against the Muskegon Traction & Lighting Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reduced and affirmed.

      Gross, Vanderwerp, Foote & Boss, for appellant.

      Turner & Turner for appellee.
   Moore, C. J.

This case was brought to recover damages for personal injuries sustained by the plaintiff on August 18, 1911, in a collision between a car of the defendant company in which plaintiff was riding as a passenger and a car of the Grand Rapids, Grand Haven & Muskegon Railway Company, which corporation runs its cars over a part of the track of the defendant company. The plaintiff claims to have been thrown forward against the seat in front, and then jerked backwards, thereby sustaining injuries to her right arm, her ribs, her chest, and her right hip. The testimony is that plaintiff was assisted off the car, taken home in an automobile, and a doctor called, who found her right hip bruised and discolored, two ribs broken near the breastbone, and the biceps muscle of the right arm injured. Plaintiff’s nervous system was impaired, and the doctor continued to treat her every day for about four weeks. She afterward developed pneumonia, and was treated for that. At the time of the accident plaintiff was 57 years of age, a married woman living with her husband, and was keeping boarders with a profit to herself. She recovered a verdict for $3,050. A motion was made for a new trial, which motion was denied. The case is brought here by writ of error.

■ The claim of appellant is stated by its counsel as follows :

“Questions involved and the manner in which they are raised: While the examination of the jurors was in progress the panel became exhausted, whereupon the court directed the sheriff to summon a talesman from the room, and fill the panel. Counsel for plaintiff made no objection to this procedure until after the sheriff had summoned one Mr. Thompson, who stepped forward to take his place in the jury box. After counsel for plaintiff saw who had been summoned, he for the first time requested the court that names be drawn from the regular lists under the statute of 1911. Counsel for defendant insisted that plaintiff’s attorneys could not sit by and see the court take action of this kind until they found out who had been called into the box, and then raise an objection. The trial court denied the request of counsel for defendant that Mr. Thompson be allowed to take his place in the jury box, exception was duly taken, and error has been assigned thereon, the peremptory challenges of defendant having been exhausted before the panel was completed. It is the claim of defendant that the plaintiff, being a married woman living with her husband, should not have been allowed to recover medical expenses as an item of damages, and that the court erred in his charge to the jury in that regard, and also in his refusal to strike out the testimony of the plaintiff that she became personally liable for the doctor bill. The other errors assigned relate to portions of the judge’s charge concerning the rule of damages and to the refusal of the court to grant a new trial for the reasons stated in the motion therefor, it being claimed, among other things, that the charge of the court as a whole was argumentative and gave undue prominence to the claims of plaintiff; that the court erred in instructing the jury that the plaintiff was entitled to recover, as an element of damage, her loss of capability to perform ordinary labor; that the amount of damages awarded plaintiff is excessive and unreasonable in amount, is unsupported by and contrary to the great weight of the evidence and that the verdict and judgment is unjust, oppressive, and against the just right of the defendant.”

Did the court err with reference to the selection of a jury? Act No. 194, Pub. Acts 1911, provides:

“When there shall not be jurors enough present to form a panel in any cause, the circuit court may direct the sheriff or other proper officer to summon a sufficient number of persons having the qualifications of jurors to complete the panel from among the bystanders or from among the neighboring citizens; and the sheriff shall summon the number so ordered accordingly and return their names to the court: Provided, that such court may, on his own motion, or in case either of the parties litigant demand it, then it shall be the duty of the court to order a sufficient number of jurors to be drawn from the regular lists.”

The record shows that while the examination of the jurors was in progress the following occurred:

The Clerk: The panel is exhausted, your honor.
The Court: Mr. Sheriff, summon a talesman from the room here and fill the panel.
“The Sheriff: Mr. Thompson.
“Mr. J. E. Turner: Now, if the court please, I submit that under this statute of 1911 this is hardly regular.
The Court: It is regular all right, so far.
“Mr. J. E. Turner: We would ask at this time that the court direct that a few names be drawn from the regular list, and we make that request.”

The court then examined the statute, and directed Mr. Thompson, who had not been sworn, to stand aside, and new names were drawn from the regular list. It will be observed that all the above occurred in a very brief period of time; that counsel at once called the attention of the court to the statute. We do not think the court abused its discretion.

Did the court err in allowing the plaintiff to recover for ^medical expenses ? The record shows plaintiff was doing business on her own account, that she employed the doctor, that he regarded himself as in her employ and looked to her for his pay. The court did not err as to this feature of the case. Lacas v. Railway Co., 92 Mich. 412 (52 N. W. 745); Vergin v. City of Saginaw, 125 Mich. 499 (84 N. W. 1075). Particular stress is placed by counsel for appellant on that part of the charge of the court allowing plaintiff to recover as an element of damage her loss of capability to perform ordinary labor. We have already referred to the fact that plaintiff, though a married woman, was keeping a boarding house on her own account. What was said by the trial judge about which complaint is made should be read in connection with the rest of his charge, bearing in mind the work in which plaintiff was engaged. When so read, we think it appears that the charge was without error. See Act No. 196, Pub. Acts 1911. It is said that in any event the verdict is too large, and should be reduced to $2,000. A careful examination of the record in relation to the extent of the injury and the suffering of the plaintiff does not satisfy us that the verdict is excessive.

Judgment is affirmed.

Bird and Steers, JJ., concurred with Moore, C.. J.

Ostrander, J. I think the verdict and judgment excessive. Unless plaintiff will remit all in excess of $2,000, the judgment will be reversed and a new trial ordered. Appellant will recover costs of this court.

Brooke, McAlvay, and Stone, JJ., concurred with Ostrander, J. Blair, J., did not sit.


author: Bird, J.

text:
    COUSINEAU v. EMBURY.
    1. Master and Servant — Personal Injuries — Negligence—Evidence.
    Evidence that the arbors and collars of an edger had become so worn that the saw wabbled, and to remedy the difficulty set screws were placed in the collars of such saw, which caused the saw to pinch and throw back the material that it was shaping, that fly-backs had rarely occurred before inserting the set screws, and became frequent afterwards, that two edgermen preceding plaintiff had been injured, warranted the submission of the question of defendant’s negligence to the jury, although defendant’s testimony tended to show that numerous other causes might produce throwbacks.
    2. Same — Assumption oe Rise.
    Whether plaintiff assumed the risk was a question for the jury to determine, taking into consideration his age, experience, means of observation, and the circumstances of the case.
    3. Same.
    The servant assumes risks that are incident to his employment, and such dangers as he knows and appreciates, or ought to know.
    Error to Cheboygan; Shepherd, J.
    Submitted April 6, 1912.
    ( Docket No. 20.)
    Decided July 11, 1912.
    Case by Jacob Cousineau against S. Harris. Embury and others for personal injuries. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Frost & Sprague, for appellants.

      Maxwell W. Benjamin and De Vere Hall, for appellee.
   Bird, J.

The plaintiff was seriously injured in the arm while in the employ of defendants at their mill in Cheboygan. While engaged as an edgerman, his arm was struck by a “fly back,” as it is called in mill parlance when a splinter or piece of board is thrown back from the saws toward the forward part of the edging machine. The occurrence is not an unusual one in mills where such machines are used. The causes which produce “fly backs” are various. It is not known with certainty what caused this particular one. The plaintiff ascribes the cause to the failure of the defendants to keep the edging machine in proper repair. The defendants show that the “fly back ” might have been caused in ten other and different ways than the one alleged by plaintiff.

The trial court, against the protest of defendants, submitted the case to the jury, and it resulted in a verdict for plaintiff. The defendants now claim that the trial court erred in so doing for the reasons, (1) that, if the “ fly back” was caused as claimed by plaintiff, it was not proved and was not shown to be the proximate cause of the injury; (2) that plaintiff assumed the risk.

First'. The plaintiff accounts for the “flyback” which injured him on the theory that the arbor and collars of the edger had become so worn that they would not hold the saws firmly and securely in position without wabbling, and to remedy this defect set screws were placed in the collars; that, when the set screws were tightened, it tilted the saws and threw them out of plumb, the effect of which was to make a portion of the saw bind or pinch and carry the board up on top of the saw and throw it back with great force toward the front of the edging machine.

The plaintiff made proof that the arbor and collars were old and worn, that they had been used much longer than usual, and that an attempt was made to overcome the wabbly condition of the saws by placing set screws in the collars, which had the effect of tilting the saws as claimed. It was also shown by those who were versed in running such machines that the defects claimed by plaintiff would have a tendency to cause “fly backs.” It was further shown that prior to the insertion of the set screws “fly backs” very rarely occurred, whereas, after the insertion of them, they occurred quite frequently, sometimes as many as ten a day, and that two edgermen who preceded him were injured by “fly backs ” after the set screws were inserted. This showing justified the trial court in submitting to the jury the question as to whether the defects complained of would cause “fly backs.” But defendants argue that it is not enough to show that the claimed defects might have cáused the injury when the testimony shows that it may have been caused in several other ways, for some of which defendant would not be liable, but he must go farther,, and show that the alleged defects did cause the injury. To meet this phase of the case, plaintiff introduced testimony tending to rebut the presumption that the injury was as likely to have been caused in the other ways shown by the record, and the trial court submitted the question as one of fact to the jury. This was proper. Our examination of the testimony convinces us that it brought the question as to whether the alleged defects caused the “fly back” which injured plaintiff into the domain of probabilities where the jury had the right to pass upon it.

Did plaintiff assume tne risk ? The general rule is that a servant assumes only such risks as are incident to his employment. Chicago, etc., R. Co. v. Bayfield, 37 Mich. 205. Plaintiff’s contract of employment did not bind him to make repairs. Therefore the dangers of defective machinery would not be, as a matter of law, included among the risks incident to his employment. Of course, if he knew, or the circumstances were such that he ought to have known and appreciated, the dangers, he would be held to have voluntarily assumed the risk. As to whether he did voluntarily assume the risk was a question of fact for the jury to determine from his age, experience, and means for observation, together with all the other testimony bearing on the question. The trial court submitted the question to the jury in a very fair and careful instruction, and we think the defendants have no ground for complaint.

The judgment is affirmed.

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


author: Bird, J. Ostrander, J.,

text:
    MELZE-ALDERTON SHOE CO. v. FIRST STATE SAVINGS BANK.
    1. Injunction — Foreclosure oe Mortgages — Pleading.
    Upon demurrer to a bill to restrain defendant from foreclosing certain mortgages that complainant claimed the mortgagee was equitably estopped from foreclosing because of statements made to and relied upon by complainant, the bill was insufficient if it failed to aver that the claim of complainant, a purchaser of the mortgaged lands upon execution sale, could not be satisfied out of the property after paying the amount of the mortgages.
    2. Same — Parties—Foreclosure.
    And the mortgagor and his wife were indispensable parties to the suit, wherein complainant prayed to have the amount due determined and to have one mortgage declared paid.
    Appeal from Osceola; Withey, J.
    Submitted June 26, 1912.
    (Docket No. 38.)
    Decided July 11, 1912.
    Bill by the Melze-Alderton Shoe Company against the First State Savings Bank of Evart for an injunction and other relief. From an order overruling a demurrer to complainant’s bill, defendant appeals.
    Reversed

      B. N. Savidge, for complainant.

      Odell Chapman, for defendant.
   Bird, J.

The complainant filed its bill to restrain the defendant from foreclosing certain real estate mortgages by advertisement. It charges, in substance, that one Benjamin F. GKtchell was in February, 1908, indebted to it on two promissory notes in the sum of $837.97; that the said Gritchell was the owner of considerable personal property, and had title to several pieces of farming lands in Osceola county, which were incumbered by two mortgages held by the defendant. Being advised that most of the indebtedness of Gitchell was owing to the defendant, complainant’s attorney called upon George A. Glerum, the cashier of the defendant, and requested a statement of Gitchell’s indebtedness. The cashier informed him that Gitchell had property of the value of $40,000, and was not indebted to exceed $12,700; that the bank held two real estate mortgages, one for $5,000 or $5,500, and another for $1,200; and that he was indebted to other parties in the sum of $4,200. It is further charged that subsequently the cashier advised the attorney that the $1,200 mortgage had been paid, and that the other mortgage had been materially reduced by a sale of collateral which the bank held. That, in reliance upon these statements of the cashier, complainant commenced a suit on the notes, obtained judgment, and levied upon and sold all the real estate of the said Gitchell, and that it purchased at such sale all of said real estate save two parcels. That soon after this the defendant commenced foreclosure proceedings by advertisement upon all of these lands, including the parcel upon which the $1,200 mortgage had been a lien, to satisfy two mortgages, upon which it was claimed there was due the sum of $5,414.90 and $1,476.86. The bill further charges that the $1,200 mortgage was fully paid and the lien extinguished, and that the amount due upon the other mortgage was much less than was claimed in the notice of sale.

The relief prayed was (a) to restrain the foreclosure sale, (&) for an accounting of the amount due on the larger mortgage, and (c) to have the $1,200 mortgage declared paid. Upon filing the bill, a temporary injunction issued restraining the sale.

The defendant demurred to the bill and assigned several causes therefor, only two of which have been argued in defendant’s brief: (1) That there is no equity shown by the bill; (2) that Gitchell and his wife should have been made parties.

Defendant assumes that complainant rests his entire case on the representations made by the cashier that the $1,200 mortgage was paid, and the amount due on the other mortgage was materially reduced, and argues that such representations are not binding on the bank. If we should so hold, it would not be conclusive of the question as to whether any equity was stated in the bill, as it is elsewhere alleged in the bill that the $1,200 mortgage has been paid and the other materially reduced. The statements of the cashier, if ¿dmissible, would be one way to prove what is alleged, and, if they are not admissible, it would not follow that the complainant would be precluded from establishing the allegations by other testimony.

It is also urged that, conceding the statements were made by the cashier as claimed, the bill does not show how complainant has been harmed on account of them; that it does not appear that there is not value enough in the real estate to pay both the judgment and the mortgages. The bill shows that complainant paid $650 at the sale for the parcel upon which the $1,200 mortgage had been a lien. There is no allegation as to the value of this parcel. For aught the bill shows, the parcel is worth enough to take care of both claims. If it is, then complainant has not suffered by reason of the statements. We think this point is well taken.

Are Gitchell and his wife necessary parties to the suit? The proceeding is one to fix the amount due upon one mortgage and to have the other declared paid. These mortgages were given by Gitchell and his wife. Gitchell is still the legal owner of the premises covered by the mortgages. He has a right to redeem from the execution sale, and, if he does so, he will be interested in the amount due upon the mortgages; if he does not, it may affect his personal liability on the notes accompanying the mortgages. Should he redeem from the execution sale after complainant has been subrogated to the rights of the mortgagee, the amount fixed by the court should be binding upon all of the parties, and this would not be the case unless Gitchell and his wife are made parties. In view of these considerations, we think they are necessary parties and should have been made defendants.

The order overruling the demurrer will be reversed, and an order entered sustaining it, with permission to complainant to amend its bill and to bring in other parties defendant. The defendant will recover its costs in this court.

Moore, C. J., and Brooke and Stone, JJ., concurred.

Ostrander, J.,

concurred, upon the ground that the mortgagor and his wife are necessary parties.


text:
    EDWARDS v. ZUCK.
    1. Partnership — Real Property — Title oe Lands Taken in Name oe Partner — Accounting.
    In a suit for an accounting between two alleged partners in lands which were taken in two separate parcels.by the individualmembers of the firm, each expecting to have a half interest in the parcel conveyed to the other, and each, by oral agreement, contributing time, labor and capital to carry on lumbering operations, and intending to divide the profits equally, and acting as mutual agents in employing and paying for labor and selling the lumber, the trial judge oorrectly determined that a partnership existed.

    2. Same — Statute oe Frauds — Oral Contract.
    The complainant, who had title to one of the parcels, was not barred by the statute of frauds from insisting that defendant had an undivided interest therein as copartner by virtue of an oral agreement.

      3. Same — Accounting—Contribution—Trespass—Taxation.
    Although it appeared that complainant committed a trespass by entering upon the land conveyed to him and cutting timber while the lands were State tax lands, he was entitled to charge the firm with the sum paid in settlement of the timber so taken in good faith, and with the belief that he was within his rights and could afterwards pay the delinquent tax, since the act was done for the benefit of the copartnership, and the funds of the firm were augmented by the proceeds of the trespass
    Appeal from Missaukee; Lamb, J.
    Submitted April 7, 1911.
    (Docket No. 43.)
    Decided July 11, 1912.
    Bill by John Edwards against John Zuck for an accounting and dissolution of a partnership. From a decree for complainant, defendant appeals.
    Affirmed.

      Sawyer & Penny, for complainant.

      Gaffney & Miltner, for defendant.

       Effect of agreement to share profits to create partnership, see note in 18 L. R. A. (N. S.) 963.

   Bird, J.

The bill in this case was filed to compel an accounting and a dissolution of copartnership dealings between complainant and defendant. The complainant was successful at the hearing, and defendant has appealed.

The complainant and defendant were farmers and neighbors in Missaukee county in 1908, and in September of that year complainant alleges that he and defendant entered into a copartnership agreement to purchase a certain 120 acres of land in that county, which will be hereinafter referred to as “the 80” and “the 40.” For convenience the title to the 80 was taken in the name of defendant, and the title to the 40 was taken in the name of complainant. It is further alleged that the agreement provided that the lands were to be lumbered, and the profits arising therefrom, as well as the profits arising from the sale of the lands, should be equally divided between them. The 40 had been sold for delinquent taxes and bid in by the State. This fact was known to both of them, and they agreed that they would pay the taxes, but they neglected to do so until after they had cut and removed quite a large amount of timber. When complainant heard that the State trespass agent was investigating the cutting of the timber, he paid the delinquent taxes, which amounted to $108.87. Subsequently the trespass agent made a demand upon him for the value of the timber taken prior to the payment of the taxes, and this was finally settled by complainant paying to the State $119. The defendant denies that there was any copartnership agreement between them respecting these lands. He insists that he was absolute owner of the' 80, and complainant was the owner of the 40, and that they lumbered them together under a joint arrangement which fell far short of being a partnership agreement. He denies any knowledge of the delinquent taxes against the 40, and says that he was not aware that any trespass was being committed in cutting the timber from it. It is further contended by defendant that if they were guilty of a trespass, and complainant afterwards adjusted it, he is not entitled to contribution from him because the law will allow no contribution as between joint wrongdoers.

After hearing the parties and their witnesses, the trial court found that there was a copartnership agreement; that neither the title to the 80 nor the profits arising from the sale thereof were assets of the copartnership; and that there was due to complainant the sum of $131.75 on an accounting between them respecting the copartnership matters. It was further found that defendant was entitled to a conveyance of an undivided one-half interest in the 40 and complainant was ordered to convey the same. It was also provided that this interest should be sold to satisfy the amount due complainant in the event that defendant made default in its payment.

We are of the opinion that the trial court was fully justified in finding that the parties were partners. Under their agreement each owned an undivided interest in the 40 and they were jointly interested in the timber on both parcels when severed. Each contributed time, labor, and money in carrying on the lumbering operations, and they divided equally their profits and losses. Each acted for the other in the employment and payment of labor and the sale of their product. Complainant testifies that they expressly agreed to become partners in the deal.

“ The test of partnership must be found in the intent of the parties themselves.” Beecher v. Bush, 45 Mich. 202 (7 N. W. 785, 40 Am. Rep. 465).

It is suggested that, as this copartnership agreement was oral and dealt with the sale of lands, it is, therefore, void as being within the statute of frauds, under the rule laid down in Nester v. Sullivan, 147 Mich. 493 (111 N. W. 85, 1033, 9 L. R. A. [N. S.] 1106). The holding of the trial court in this case is not an infringement of the rule laid down in that case, for the reason that the complainant is the owner of the title and the person for whose protection the statute exists, and he insists that defendant has paid for, and is entitled to, an undivided one-half interest in the 40 acres. Such a case is not within the statute of frauds. Spalding v. Archibald, 52 Mich. 365 (17 N. W. 940, 50 Am. Rep. 253).

In his accounting of the partnership dealings, the trial court charged defendant with one-half of the amount paid by complainant to the State in settlement of the trespass. The defendant argues that this was improper, for the reason that the law does not enforce contribution between joint wrongdoers, that complainant had no title to the land, and therefore must have known that he was committing a trespass when he cut the timber. The complainant, on the other hand, protests that he cut the timber in good faith, believing he could -pay the delinquent taxes after, as well as before, cutting the timber, and that, when he learned otherwise, he settled with the trespass agent. It is the view of my associates that as the amount paid the trespass agent was on account of a partnership matter, and the partnership fund was augmented by the fruits of the trespass, it will now be regarded as having been paid by complainant out of partnership funds.

We are of the opinion that the trial court reached the right conclusion in the case, and the decree will be affirmed, with costs of both courts to complainant.

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


author: McAlvay, J.

text:
    CRAIG v. INGHAM CIRCUIT JUDGE. CRAIG v. PORTER.
    1. Appeal and Error — Supreme Court Practice — Consolidation oe Causes — Waiver.
    After the printing of a record to be used in two causes, which were treated as consolidated in the record, and after the filing of a stipulation for continuance of the causes, entitled as combined, signed by both attorneys,' it was too late to make the objection in the briefs of appellee, which he entitled in both proceedings, that the cases were improperly consolidated.
    2. Same — Mandamus.
    An order dismissing an action for failure of plaintiff to furnish security for costs, and awarding costs to defendant, was a final order, reviewable on error.
    3. Same.
    Mandamus does not lie to review such an order.
    4. Costs — Security—Motions.
    No new facts appearing after the granting of a motion for security for costs, and requiring plaintiff to furnish a bond of $100, a second motion to compel the plaintiff to file a general undertaking to pay all costs that might be incurred in the case, was improperly granted.
    5. Same.
    In order to warrant the court in granting an application for new or additional security, it must be shown that new facts have arisen since the granting of the first order, making necessary additional security.
    6. Same — Appeal and Error.
    Such order is reviewable on error on the ground that it was made without a sufficient showing.
    Mandamus by Edith G. Craig against Charles B. Collingwood, one of the circuit judges of the county of Ingham, to compel respondent to vacate an order dismissing plaintiff’s action, for failure to comply with an order of the court granting, ex parte, a motion of defendant therein for new and additional security for costs. This record being combined with the following, the cases were considered together. Submitted November 17, 1911. (Calendar No. 24,098.) Writ denied July 11, 1912.
    Error to Ingham; Collingwood, J.
    Submitted November 17, 1911.
    (Docket No. 132.)
    Decided July 11, 1912.
    Case by Edith G. Craig against William H. Porter. An order dismissing the cause is reviewed by plaintiff on writ of error.
    Reversed.

      A. A. & H. A. Ellis, for appellant.

      Tuttle, McArthur & Dunnehacke, for appellee.
   McAlvay, J.

These cases were presented to this court combined in one record and were submitted upon briefs. The first named is a mandamus proceeding. The second is a case brought here upon writ of error.

It is suggested on the part of both respondent and the defendant in their brief that no order has been made combining these cases, and that there is no practice warranting such combinations. In our opinion the objection is made too late. The record gave timely notice that the cases were to be considered together. The attention of the court was not called to the matter by motion or otherwise, and the original files show that stipulations for continuanees of the cases, entitled as combined, have been entered into, signed by the attorneys for the respondent and for the defendant.

In this court the only brief printed and filed by the same attorneys is entitled in the same manner. It would appear that the question has been waived. There is but one question presented by the record of these cases before us. This relates to an order made by the court dismissing plaintiff’s suit on account of failure on her part to give security for costs, with a judgment for costs against her. This was a final judgment, reviewable upon writ of error.

This court has repeatedly held that, where the remedy by writ of error was adequate, mandamus was not the proper remedy. City of Flint v. Genesee Circuit Judge, 146 Mich. 439 (109 N. W. 769), and cases cited. For a citation of many of these cases, see Olds Motor Works v. Wayne Circuit Judge, 164 Mich., at page 471 (129 N. W. 710). Respondent will recover costs.

This leaves for consideration the errors assigned in the case here for review upon writ of error. This case was commenced in the circuit court for Ingham county by a summons. Defendant’s appearance was entered December 27, 1909, and he pleaded the general issue to plaintiff’s declaration on the same date, and also made and filed a motion for security for costs. This motion was supported by his own affidavit in the ordinary form, showing that plaintiff was without property of any kind and was a nonresident of Ingham county, and further alleging that her cause of action was without merit, trivial, and vexatious. ' This was opposed by the affidavit of plaintiff, which admitted her poverty, and charged that, by reason of false statements in an alleged interview made by defendant and published in the newspapers that she was blackmailing him, he had rendered it impossible for her to obtain security for costs; that her cause of action was not trivial, as appeared from her declaration therein. She also filed several affidavits showing her character for virtue, honesty, and integrity. This motion was heard on January 10, 1910, and an order was entered that plaintiff file a bond in the sum of $100 for security for costs within 30 days, or show cause why the same should not be filed, and staying in the meantime all proceedings on the part of the plaintiff.

Afterwards, on January 18, 1910, during the above period of 30 days, the defendant, without notice, made a motion “to increase the amount for which security of costs shall be filed,” and to require the plaintiff to furnish security for such increased amount, giving, in addition to the reasons relied on in the first motion, that the amount asked was not large enough and that plaintiff was mentally irresponsible and weak. This motion was supported by a number of affidavits in support of the claimed mental weakness of plaintiff, and an affidavit of defendant showing the probable expense to him of a trial of the cause. Defendant made no affidavit of merits and stated no new facts or circumstances upon which said motion was based. This motion was opposed by plaintiff upon the ground, among others, that it was unusual and irregular. It came on to be heard and was granted February 7, 1910, by an order setting aside the order of January 10, 1910, and ordered plaintiff to file within 30 days a general security for costs or show cause why such security should not be furnished. The plaintiff did not furnish the bond. Two days after the expiration of the 30 days, plaintiff moved to set aside the order of February 7th, among other grounds setting up the wrongful conduct of defendant already indicated, whereby she was deterred and defeated in her efforts to obtain such security. Pending this motion, on March 14, 1910, defendant moved to dismiss the cause on the ground that plaintiff had not complied with the order of February 7th, and had not filed security for costs or shown sufficient cause therefor. This motion was heard and granted March 21st, and the cause was dismissed. On March 24th the plaintiff moved to vacate this order. This motion was denied March 28, 1910.

The principal and practically the only question involved is whether the court erred in entertaining and granting the motion of defendant asking for a general security for costs, by the order made February 7, 1910, and in granting the motion to dismiss plaintiff’s cause for not complying with such order.

It is apparent that the practice followed by defendant in making the second motion for further security for costs pending the first, under the circumstances disclosed by this record, was unusual, in that no new facts or conditions had arisen since the first application.

It appears to be well settled upon authority that, to authorize an order requiring new security for costs, it is essential that there shall have been a change in the circumstances of the case, of the parties, or of the surety. The mere fact that the security was insufficient when taken will not authorize an order requiring new security. 11 Cyc. p. 190; Martin v. Hazard Powder Co., 93 U. S. 302; Jerome v. McCarter, 21 Wall. (U. S.) 17. The application must show that new facts have arisen since the security was given, making additional security necessary. 11 Cyc. p. 191, and cases cited.

By parity of reasoning, in a case where an application has been made for security for costs and an order granted thereon, and a second application is made pending the time allowed to comply with such order, in the absence of new facts or conditions shown to have arisen, the same rule would apply.

Therefore the application under review in this case was insufficient to warrant the court in granting the order, and the order made under such circumstances is reviewable on the ground that it was granted on an insufficient showing. Nothing appears in this application that was not, or should not have been, within the knowledge of defendant at the time of the first application. The motion of plaintiff to set aside this order, granted March 21,1910, should therefore have been allowed for the reasons stated, and the court was in error in denying such motion.

The judgment of the circuit court against plaintiff, dismissing her cause with costs, is therefore reversed and set aside, and said cause will be reinstated and proceed to trial. Plaintiff will recover costs of both courts.

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