author: Stone, J.

text:
    DANIELS v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO.
    1. Process — Motions—Service—Sufficiency.
    Disputed questions of faot are not triable on motion and affidavits as to the sufficiency of service of process.
    2. Same.
    But where no question of fact is raised, the court will dispose of a motion to quash service of process, for the alleged reason, that defendant, a foreign corporation, was improperly served'.
    3. Same — Statutes.
    Before the enactment of Act No. 3, Pub. Acts 1909, an action against a nonresident corporation might be commenced by attachment and seizure of property, under 3 Comp. Laws, § 10011.
    4. International Law — Foreign Statute.
    The court cannot take judicial notice of a statute of limitations of the Dominion of Canada; it must be proved.
    5. Actions — Personal Injuries — Carriers — Constitutional Law.
    An action against a carrier for negligent injuries sustained in a foreign jurisdiction, is transitory, and may be tried by the courts of this State.
    6. Statutes — Cause of Action — Remedies.
    The said statute merely broadens a remedy and in no way affects the cause of action.

      7. Corporations — Railroads—Service of Process.
    A foreign railroad company, lawfully doing business in this State, is subject to such changes as may, from time to time, be made in the law touching service of process.
    8. Constitutional Law — Process—Foreign Corporations.
    Act No. 3, Pub. Acts 1909, which permits service of process on the agent of a foreign corporation, in cases arising outside the jurisdiction, merely gives a remedy which did not exist under 3 Comp. Laws, §§ 10442, 10443, without affecting the vested rights of the foreign corporation, and the act is constitutional and applies to a cause of action that was in existence when the statute went into effect.

      Certiorari to Clinton; Searl, J.
    Submitted October 11, 1910.
    (Docket No. 31.)
    Decided December 7, 1910.
    Case by George B. Daniels against the Detroit, Grand Haven & Milwaukee Railway Company, the Grand Trunk Western Railway Company, and the Grand Trunk Railway Company of Canada. The defendant, the Grand Trunk Western Railway Company, filed a motion to quash the service of plaintiff’s declaration. An order denying the motion is reviewed by said defendant on writ of certiorari.
    Affirmed.

      Harrison Geer, for appellant.

      Lyon & Moinet, for appellee.
   Stone, J.

Suit was brought to recover damages for injuries which plaintiff claims that he received in a wreck in Canada on September 3, 1908, while a passenger on a train of the Grand Trunk Railway Company of Canada between the stations of Princeton and Gobles. At that time, as well as at the time of the commencement of this suit (November 3, 1909), plaintiff resided in Clinton county, Mich. He commenced the action by declaration in the Clinton circuit court. Service was made on the same day on the defendant Detroit, Grand Haven & Milwaukee Railway Company, within said county, and proof of such service was on that day made and filed in the cause. On November 4, 1909, service was made on the defendant the Grand Trunk Western Railway Company, and due proof of that service was filed November 6, 1909. On November 5, 1909, service was made on the defendant the Grand Trunk Railway Company of Canada by delivering a copy of the declaration, rule to plead, and notice, to George W. Watson, its ticket agent, at 124 Woodward avenue, Detroit, Mich., to secure jurisdiction of the last-named company, and on the following day proof of such service was made and filed in the cause.

The first two named companies caused their appearance to be entered in said cause. The Grand Trunk Railway-Company of Canada appeared specially in said suit and moved the court, upon affidavit attached to said motion, to dismiss the suit for the reason that said company is a foreign corporation, and the plaintiff’s alleged cause of action accrued in the Dominion of Canada, if at all, and not in the State of Michigan. The affidavit in support of the motion, after stating that the plaintiff’s alleged cause of action accrued through derailment of said defendant’s passenger train near Princeton, Ontario, Dominion of Canada, on September 3, 1908, proceeds as follows:

“This deponent further says that the Grand Trunk Railway Company of Canada * * * is a foreign corporation, and was a foreign corporation on the 2d and 3d days of September, 1908; that it is organized and exists under the laws of the Dominion of Canada, and is a subject of King Edward VII, and it is not now, and never has been, a corporation organized and existing under the laws of the State of Michigan.”

It appears by an affidavit filed on behalf of the plaintiff, at the hearing of the motion, that at the time of the service in question, said defendant the Grand Trunk Railway Company of Canada was maintaining two ticket offices in the city of Detroit, one at the so-called Grand Trunk station at the foot of Brush street, and one at 124 Woodward avenue; that it had maintained such offices since prior to September 3, 1908, and that said defendant, at its Woodward avenue ticket office, sold a ticket over its line from Detroit, Mich., to Tecumseh, Canada, at the very time that service aforesaid was made upon it. This court held in Sherrill v. Railway Co., 161 Mich. 495 (126 N. W. 830), where a similar question was raised, that it would refuse, in such a proceeding, to try disputed questions of fact upon affidavits, and that the proper practice was to frame an issue by a proper plea. As it appears, however, by an examination of the affidavits filed in this case, that there are no disputed questions of fact raised, we shall proceed to dispose of the question here presented. The circuit judge found that no question was raised as to the agency of Watson, and no question of that kind appears in the record or brief of appellant.

The sole contention urged by appellant is that the circuit judge erred in overruling defendant’s motion and holding the service of the declaration good as to the Grand Trunk Railway Company of Canada, and in entering the order,” overruling the motion. The case is here upon certiorari.

It is the claim of the appellee, plaintiff below, that he is entitled to bring suit in the circuit court for the county of Clinton, where he resides, although the cause of action accrued outside of the State of Michigan, and the defendant is a foreign corporation, under Act No. 3, Pub. Acts 1909, the same being an amendment of section 10442, 3 Comp. Laws; the act as amended reading as follows:;

“Section 1. In cases where the plaintiff is a resident of the State of Michigan, suits may be commenced at law or in equity in the circuit court for any county in this State where the plaintiff resides or where service of "process may be had, and suits at law may be commenced before any justice of the peace in such county, against any corporation not organized under the laws of this State, by service of a summons, declaration or chancery subpoena, within the State of Michigan, upon any officer or agent of the corporation, or upon the conductor of any railroad train, or upon the master of any vessel belonging to or in the service of the corporation against which the cause of action has accrued. And where the plaintiff is a nonresident of the State of Michigan, suits may be commenced in like manner against such corporations, in all cases where the cause of action accrued within the State of Michigan: Provided, that in all cases, except before justices of the peace, no judgment shall be rendered for sixty days after the commencement of suit, and the plaintiff shall, within thirty days after commencement of suit, send notice by registered letter to the corporation defendant at its home office.
“Seo. 2. That when the cause of action has accrued prior to the passage of this act, suit may be brought as provided in the first section of this act: Provided, that the cause of action at the time such suit is brought would not have been barred by the statute of limitations had. such corporation been organized within this State.”

It is conceded that prior to the amendment of 1909 the' plaintiff below could not have brought suit by declaration in any circuit court of Michigan and got valid service upon said foreign corporation, so as to have entitled him to-recover a personal judgment against it. He could, however, at the time of the alleged injury, have commenced his suit by attachment, and have seized the property of the defendant corporation, sufficient to satisfy his claim for damages, under the provisions of section 10011, 3 Comp-Laws.

Counsel for appellant makes the claim in his brief that,, under the law of Canada where the cause of action accrued, if at all, suit must be commenced within one year, and that plaintiff’s cause of action would have outlawed on September 3, 1909, and he argues that the corporation had a vested right in its defense, which could not be taken away. A complete answer to this point is that the question is not raised in the record. We cannot consider a question not presented in the record. There was not a scintilla of proof before the lower court that there is any statute of limitations whatever as to this sort of action, or any kind of action whatever, in the Dominion of Canada. We cannot take judicial notice of the existence of a foreign statute. This court held in Chapman v. Colby Bros. & Co., 47 Mich. 46, 51 (10 N. W. 74), that where a foreign law is in question, there can be nothing known of its purport until it is proved — citing Kermott v. Ayer, 11 Mich. 181. In varying language the same rule has been held and applied in many cases; the later cases being Phelps v. Loan Ass’n, 121 Mich. 343, 354 (80 N. W. 120); Schroeder v. Boyce, 127 Mich. 33-36 (86 N. W. 387). We must decline therefore to consider the claim of the statute of limitations.

The amendment of 1909 eliminated the provision that the cause of action must arise within the State of Michigan, in order to entitle the plaintiff to make service upon a foreign corporation. This cause of action was transitory. The circuit court for the county of Clinton is a court of general jurisdiction, and as such had jurisdiction over the subject-matter of this suit under the provisions of the Constitution. See Const. 1850, art. 6, § 8; Const. 1909, art. 7, § 10; Atkins v. Borstler, 46 Mich. 552 (9 N. W. 850); Thompson v. Benefit Ass’n, 52 Mich. 522 (18 N. W. 247); Cofrode v. Circuit Judge, 79 Mich. 332-339, (44 N. W. 623, 7 L. R. A. 511); Sleight v. Swanson, 127 Mich. 436, 438 (86 N. W. 1010).

There can be no question that if plaintiff below had, at any time after the alleged injury, commenced suit in the Clinton circuit court against all of the defendants, and had made service upon the other two defendants, as he did in this case, and appellant had appeared in the case, and a judgment had been rendered therein, such judgment would have been binding upon all of the parties. That court would have had jurisdiction over the plaintiff because he was a resident of that county and voluntarily went into that court; it would have had jurisdiction over the subject-matter, because the cause of action was transitory, and it was a court of general jurisdiction; and if appellant had voluntarily appeared, it would have had jurisdiction over the person of appellant, and any judgment rendered therein would have been binding upon the parties.

We have shown that service might have been had by attachment. Although the cause of action accrued in Canada, yet it was a personal right of action, and went with the plaintiff when he returned to his home in Clinton county, Mich. If the defendants were guilty of actionable negligence, as alleged, the plaintiff’s cause of action had become complete the moment the injury was received, and remained complete when suit was brought on November 3, 1909. The act of 1909, changing the law providing for the service of process, had nothing to do with the plaintiff’s right of action. That statute relates only to the remedy, in that it prescribes and regulates a mere matter of procedure; and in such matters a party has no vested right. The amendatory act of 1909 merely broadens the remedy, by still leaving plaintiff his remedy by attachment, and adding thereto a remedy by vicarious service and a personal judgment against appellant. If appellant was doing business in the State with the consent of the State, as it probably was, then it was subject to such changes as should, from time to time, be made in the law of the State touching the service of process upon it. Upon the subject of vested rights, a clear distinction has been made by this court between the defense itself, and the mere remedy or procedure.

We cannot better deal with the authorities cited by counsel than to quote with approval from the opinion of the learned circuit judge as follows:

“ I come now to the question whether or not a resident plaintiff may make such service in a case where the cause of action accrued before the act of 1909 took effect. In Philip v. Heraty, 147 Mich. 473 (111 N. W. 93, 118 Am. St. Rep. 554), cited by appellant, it was held that Act 280, Pub. Acts 1905, extending the right of action for wrongful death to the person in good faith sustaining the marriage relation to the person killed, etc., creates a cause of action where none existed before and could not be applied to a past transaction. This was upon the ground that under no circumstances could the plaintiff have sustained her cause of action in any court except by reason of the statute, and it therefore did not relate to the remedy, but created a cause of action which did not exist before and had prospective operation only. In City of Grand Rapids v. Railway Co., 130 Mich. 238 (89 N. W. 932, 97 Am. St. Rep. 473), it was held that Act 443, Local Acts 1895, seeking to make railroads liable for a paving tax theretofore levied, was invalid because it attempted tq create a personal obligation to pay taxes which was not a personal obligation before. This simply created a new cause of action. In Davis v. Railroad Co., 147 Mich. 479 (111 N. W. 76), Act 89, Pub. Acts 1895, was held not applicable to a case pending when the act took effect, because it applied to cases only which are hereafter prosecuted.’
“Section 10443 expressly provides that suit maybe brought as provided in section 10442, ‘ when the cause of action has accrued prior to the passage of this act.’ This was a part of the statute before section 10442 was changed by the 1909 amendment of the orignal act, entitled, ‘An act to provide for suits against foreign corporations in the courts of this State.’ I must presume that the legislature had section 10443 in mind when the amendment was enacted, and I must construe it the same as though it was passed at the same time and as a part of the amendment. So it will be plainly seen that it was the intention of the legislature that this amended act should apply to cases where, like the one at bar, the cause of action had accrued before the act took effect. The amended act, therefore, applies to this case and service is valid providing the law is constitutional. In Judd v. Judd, 125 Mich. 228 (84 N. W. 134), it was held that Act No. 230, Pub. Acts 1899, giving the court power to punish for contempt one who refuses to comply with the order of the court regarding alimony, relates to the remedy only and applies to a case where the decree of divorce and for alimony was rendered prior to the act.
“ Similar laws changing the remedy have been upheld in the following cases: Joy v. Thompson, 1 Doug. 373; Rockwell v. Hubbell's Adm’rs, 2 Doug. (Mich.) 197 (45 Am. Dec. 246); Hanes & Co. v. Wadey, 73 Mich. 178 (41 N. W. 222, 2 L. R. A. 498); In re Miller, 110 Mich. 676 (68 N. W. 990, 34 L. R. A. 398, 64 Am. St. Rep. 376); Semer v. Auditor General, 133 Mich. 569 (95 N. W. 732); Rosenthal v. Wehe, 58 Wis. 621 (17 N. W. 318); Green v. Anderson, 39 Miss. 359; Murray v. Mattison [63 Vt. 479], 21 Atl. 532; Hine v. Belden, 27 Conn. 384; Henschall v. Schmidtz, 50 Mo. 454; Roberts v. Thomson, 28 Ill. 79; Fisher v. Hervey, 6 Colo. 16.
“ Plaintiff had a cause of action when this amendment took effect. The defendant, the Grand Trunk Railway Company of Canada, if liable at all to him, is liable to no greater extent than before. But prior to the passage of this statute he had no remedy permitting him to get service in Michigan. This statute changed the remedy only and did not create any new cause of action, and the case is therefore distinguished from Philip v. Heraty, and that line of cases. This defendant is a foreign corporation doing business in this State under our statute, and so long as no vested right is taken away from it, it cannot complain of a change in our statutes which may-affect it. The statute, in my judgment, is constitutional and the service valid.”

The order of the circuit court is affirmed.

Bird, C. J., and Ostrander, Brooke, and Blair, JJ., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    DANIELS v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO.
    Certiorari to Clinton; Searl, J.
    Submitted October 11, 1910.
    (Docket No. 32.)
    Decided December 7, 1910.
    Case by Alice L. Daniels against the Detroit, Grand Haven & Milwaukee Railway Company, the Grand Trunk Western Railway Company, and the Grand Trunk Railway Company of Canada. An order denying a motion to quash the service of process as to the Grand Trunk Railway Company of Canada is reviewed by said defendant on writ of certiorari.
    Affirmed.

      Harrison Geer, for appellant.

      Lyon & Moinet, for appellee.
   Stone, J.

The facts in this case are like those in George B. Daniels v. Same defendants, ante, 468 (128 N. W. 797), and the opinion in that case applies and governs here.

The order of the circuit court is affirmed.

Bird, C. J., and Ostrander, Brooke, and Blair, JJ., concurred.


text:
    MASLEN v. ANDERSON.
    1. Equity — Divorce—Jurisdiction.
    The jurisdiction of the circuit court, in chancery, in divorce proceedings, is strictly statutory, and the court has no inherent power to decree permanent alimony.
    2. Same — Statutes—Lien for Alimony — Minor Children.
    While the statutes give the court authority to grant alimony to the wife for the support of herself and minor children, and to create a lien against the husband’s property to secure its payment, they confer no power to decree the payment of any sum to the children on their reaching majority, or even dining minority, or to create a lien to secure the payment of such award.
    3. Same — Husband and Wife — Divorce.
    In such special proceedings as divorce and partition, the courts must be considered as of limited and special jurisdiction, concerning which no such presumption is indulged as prevails in actions at common law or suits under the general equitable jurisdiction.
    4- Same — Jurisdiction—Consent.
    Parties cannot confer jurisdiction over a subject matter, by consent, upon a tribunal from which the law has withheld it.
    5. Same — Divorce—Alimony—Support of Children.
    A decree, entered by consent of the defendant in divorce proceedings, providing for the payment of a stipulated sum to the wife’s mother, and certain sums in a lump to the children at their majority, and creating a lien on real estate to secure the payment of the same, exceeds the jurisdiction of the court, and such provisions are void and cannot operate as a family settlement.
    Appeal from Wayne; Murphy, J.
    Submitted October 14, 1910.
    (Docket No. 67.)
    Decided December 7, 1910.
    Bill by Frank A. Maslen, executor of the estate of Andrew Anderson, deceased, to remove a cloud from the title to real property. From a decree for defendants, complainant appeals.
    Reversed.

      William 0. Stuart (C. K. Latham, of counsel), for complainant.

      Wilkinson, Post & Oxtoby, for defendants.
   Stone, J.

The complainant is the executor of the last . will and testament of Andrew Anderson, deceased, who died in the city of Windsor, Province of Ontario, on the 10th day of July, 1905. The bill herein was filed to remove an alleged cloud upon the title to real estate, created by the terms of a certain decree of divorce hereinafter referred to.

The defendants are Louisa A. Anderson, the divorced wife of said Andrew Anderson, their children Ida Anderson, Stella Anderson, George A. Anderson, and Lillian Anderson, and the mother of said Louisa A. Anderson, namely, Louise Gassman. On the 11th day of May, 1898, the defendant Louisa A. Anderson filed in the circuit court for the county of Wayne, in chancery, a bill for divorce against her husband, Andrew Anderson; both parties being at that time residents of the city of Detroit. There was personal service of a subpoena upon the defendant therein. The underwriting of the subpoena advised him that “ a personal decree is sought against the defendant for alimony, and this bill is filed to reach interests in property.” Andrew Anderson did not enter his appearance in the cause, and the bill was duly taken as confessed. Proofs having been taken before a commissioner, the case came on for a hearing before the circuit judge. The decree was signed and entered September 17, 1898. It granted a divorce from the bonds of matrimony as prayed for, and gave the care and custody of the four children, all of whom were then minors, to the complainant therein.. ■ The other terms of the said decree are as follows:

“ (3) As alimony, in addition to certain property, the same consisting of all household goods of said parties, a house and lot on Harsen’s Island, a house and lot on Wabash avenue and a house and lot on Hudson avenue in the city of Detroit (each of said last two lots being encumbered by a mortgage) transferred and conveyed by the said defendant to the said complainant, he, the said defendant, Andrew Anderson, shall pay to the said complainant, the said Louisa A. Anderson, monthly in advance the sum of $90.00 for which the said Louisa A. Anderson shall provide for the entire support, maintenance and education, in all particulars, of, and for herself and the four children of said parties above mentioned and named. Provided, however, as each or any of said children depart from and leave the home of said complainant, or are not provided for, maintained and supported by her at home, or as any or each arrives at the age of majority, then, and in that event, the sum of $10.00 per month, fpr each child not maintained and supported by complainant at her home, shall be deducted from the monthly payments to be made to complainant as aforesaid; and, provided, further, that all earnings of each or any of said children by reason of employment not exceeding $10.00 per month, shall be applied on the monthly payments; and, provided, further, that the monthly payments to the said complainant shall at no time be less than the sum of $65.00 per month; and, provided, further, the said monthly payments as aforesaid shall continue during the life of said complainant, but in the event of her remarriage, the same shall cease.
“And further, if complainant shall provide for and maintain Mrs. Gassman, at her, complainant’s, home, the defendant shall pay complainant the sum of $10.00 each month during the continuance thereof.
“(4) As a security for the payment of the alimony hereinbefore provided for, the same is decreed to be, and constitute a lien upon all the property the defendant may at any time possess; no lien shall, however, be created or attach on any such property except in the event of the neglect and failure of the said defendant to pay the alimony as hereinbefore provided; and further, in the event of the death of said defendant, the said alimony herein provided to be paid, shall be, and constitute a lien upon the property of the estate of said defendant, and subject to the provisions herein provided.
“(5) In pursuance of, and at the suggestion, upon the question of alimony made by the defendant, and to he incorporated in this decree, at his, the defendant’s, suggestion, he, the said defendant, having agreed to pay to each of said children, as each arrives at the age of majority, the ■sum of $5,000.00 each, provided, in his, the said defendant’s, judgment his means and property will permit of his doing so, such judgment or payment, however, are dependent, whether to be made or not made, solely upon the judgment, decision, and determination of him, the said defendant; provided, however, in the event of the death of said defendant, such sum shall be, and the same shall constitute a lien upon the property of his estate, and to be paid to each of said children, out of the property of, and belonging to, his, the defendant’s, estate.”

At the time of the death of Andrew Anderson all of the children aforesaid had reached the age of 21 years, except Stella. After the granting of the decree of divorce, Andrew Anderson paid to Louisa A. Anderson, monthly, the amount provided for in said decree to be paid to her as alimony, and for the support of the minor children, but we are unable to state from the record whether or not the $10 a month, provided to be paid for the support of Mrs. Gassman, was paid during the lifetime of Andrew Anderson. Andrew Anderson married again, some time after the granting of the decree of divorce, and subsequently removed to the city of Windsor. His second wife and one child, the fruit of said second marriage, survive him.

It is the claim of the complainant, and the evidence shows, that there is not sufficient property belonging to his estate, within the State of Michigan, to pay the debts contracted by Anderson in this State, and allowed by the commissioners on claims; hence this suit. An examination of the record satisfies us that Andrew Anderson had knowledge of, and orally consented to, the terms of the decree, and that it was entered with the consent of both parties to the original case.

The bill of complaint in the divorce case alleged acts of extreme cruelty by the defendant therein, prayed for a decree of divorce from the bonds of matrimony, and that the complainant might be decreed and allowed such sum as temporary and permanent alimony as she might be equitably entitled to, and that the same might be secured, and decreed to be paid to her, and concluded with a prayer for general relief.

Said divorce decree is attacked by complainant upon numerous grounds, some of which we shall not find it necessary to discuss. Upon the hearing of this case in the circuit court, the complainant’s bill of complaint was dismissed, and relief was granted to the defendants upon their cross-bill, and the divorce decree aforesaid was in all things sustained as a valid consent decree. The complainant has appealed.

We are satisfied with the decree of the court below, in so far as it deals with the subject of alimony to be paid to Louisa A. Anderson, except that part thereof which relates to the maintenance of Mrs. Gassman. So much of the said divorce decree as provides for the maintenance or support of Mrs. Gassman, and the entire fifth clause of said decree, we are of opinion cannot be sustained, and must be held to be invalid, for the reason that the court had no jurisdiction to make such order, or create such lien, even by the oral consent of said Andrew Anderson.

The jurisdiction of the circuit courts in chancery, in this State, in divorce proceedings, is strictly statutory. Perkins v. Perkins, 16 Mich. 162; Baugh v. Baugh, 37 Mich. 59 (26 Am. Rep. 495); Peck v. Peck, 66 Mich. 586 (33 N. W. 893); Peck v. Uhl, 66 Mich. 592 (33 N. W. 893 ). Such courts have no inherent power as courts of equity to decree permanent alimony at all. Perkins v. Perkins, supra, citing Peltier v. Peltier, Har. Ch. 19. Our statutes give the court power to grant alimony to the wife for the support of herself and minor children, and to give a lien against the property of the husband to secure the payment of the same; but they do not give the court power to decree the payment of any sum to the children upon their reaching majority, or to create a lien to secure the payment thereof. In fact, our courts of chancery in divorce cases have no power to decree that any sum be paid direct to the children, even during their minority. Swiney v. Swiney, 107 Mich. 459 (65 N. W. 287).

We are satisfied that in divorce proceedings our circuit courts in chancery are courts of limited and special jurisdiction; that they do not proceed according to the course of the common law, and are confined to the authority conferred upon them by statute. The language of Justice Christiancy in Platt v. Stewart, 10 Mich., at page 265, in speaking of partition suits, is equally applicable here:

“These proceedings in partition, at least as to nonresident defendants, do not come within the general or ordinary jurisdiction of courts of chancery, but the jurisdiction as to such proceedings is special and limited, and entirely dependent upon the statute. The circuit courts in chancery, though in ordinary cases of equity cognizance courts of general jurisdiction, must, we think, as to these special proceedings, be considered as courts of special and limited jurisdiction, and no presumption of jurisdiction should be indulged as in suits at common law, or ordinary suits in equity, in courts of general jurisdiction. All the necessary facts to confer jurisdiction must therefore affirmatively appear upon the record” — citing many cg,ses in other States.

Merrill v. Montgomery, 25 Mich. 73; Weimer v. Bun-bury, 30 Mich. 201, 219. A score of cases in this court could be cited in support of this doctrine. See note in Wight v. Warner, 1 Doug. 384.

It is a recognized doctrine that parties cannot confer jurisdiction over a subject-matter by their consent, upon courts from which the law has withheld it. Kirkwood v. Hoxie, 95 Mich. 62, 66 (54 N. W. 720, 35 Am. St. Rep. 549); Brown v. Fletcher’s Estate, 146 Mich. 401, 415 (109 N. W. 686); Brown on Jurisdiction, pp. 28, 29; 11 Cyc. 693, and note. The doctrine is well stated in Brown on Jurisdiction, at page 17, in the following language:

“ If a court or tribunal pronounces a judgment it has no authority to grant, or one outside of the issues made and before the court for determination, then such judgment in excess of the power conferred, is void as to such excess of its powers.”

Many cases are cited.

“ If the jurisdiction of the court is derived from statutory authority, in a proceeding not in accordance with the ordinary proceedings of the common law, or the established usages of equity, then, in such cases, the rule is the more strict, and the facts conferring jurisdiction must appear of record.” Id. 19.
“A court of general jurisdiction may have special and summary powers, wholly derived from statute, not exercised according to the course of the common law, and which does not belong to it, as a court of general jurisdiction, and in such cases its decisions must be regarded and treated like those of courts of limited and special jurisdiction. * * * The decided weight of authority supports the rule that judgments arising from the exercise of special powers conferred by statute are to be supported by no other presumptions, and regarded in the same light as judgments pronounced in courts not of record; the particular facts conferring jurisdiction must appear of record, and if such facts do not appear, the judgment will be treated as void.” Id. 19, note 1.

The judgment rendered by a court must be such a one as it is authorized to render in the proceedings before it, or it will be coram non judice. Id. 133. So parts of a decree may be held void when the court exceeds its jurisdiction. Munday v. Vail, 34 N. J. Law, 418.

The last-named case holds that a decree in equity which is entirely aside of the issue raised in the record is invalid, and will be treated as a nullity, even in a collateral proceeding. In that case the court used the following language :

“ It is impossible to concede that because A. and B. are parties to a suit that a court can decide any matter in which they are interested, whether such matter be involved in the pending litigation or not. Persons by becoming suitors do not place themselves for all purposes under the control of the court, and it is only over these particular interests which they choose to draw in question that a power of judicial decision arises. If, in any ordinary foreclosure case, a man and his wife being parties, the court of chancery should decree a divorce between them, it would require no argument to convince every one that such decree, so far as it attempted to affect the matrimonial relation, was void; and yet the only infirmity in such a decree would be found, upon analysis, to arise from the circumstance that the point decided was not within the substance of the pending litigation. In such a case the court would have acted within the field of its authority, and the proper parties would have been present; the single but vital flaw having been the absence from the record of any issue on the point determined. The invalidity of such a decree does not proceed from any mere arbitrary rule, but it rests entirely on the ground of common justice.”

See Reynolds v. Stockton, 43 N. J. Eq. 211 (10 Atl. 385, 3 Am. St. Rep. 305). To the same effect, see Spoors v. Coen, 44 Ohio. St. 497 (9 N. E. 132).

So we are constrained to hold that, notwithstanding the consent of Anderson, those portions of the decree above pointed out were void and of no effect for want of jurisdiction in the court to make the same. We cannot agree with counsel for appellees that those provisions of the decree alluded to can be sustained as “family settlements.” There is nothing to show that the said provisions were intended to operate as “family settlements,” and that fact is negatived by the will of Andrew Anderson, which appears in this record, showing that he made subsequent provisions for these children. Neither can a family settlement, such as is here claimed, be made in a divorce proceeding. What we have said here applies equally to the fifth clause of this decree, and to the provision for the benefit of Mrs. Gassman.

The decree of the court below will be modified in accordance with the views herein expressed, and otherwise affirmed. No costs will be awarded in this court to either party.

Bird, C. J., and Ostrander, Brooke, and Blair, JJ., concurred.


text:
    SHEPARD v. SCHRUTT.
    1. Justices of the Peace — Transcripts of Judgment — Issuance of Execution.
    No execution need issue in justice’s court, under 1 Comp. Laws, § 845, to entitle a party to a transcript of judgment to the circuit court. Peek v. Cavell, 16 Mich. 10, distinguished.
    2. Same — Affidavit—Amount Due.
    The affidavit required by the statute to obtain a transcript is not sufficient alone, unless it states the amount due, and is promptly filed in the office of clerk of the circuit court, with the transcript, in which event no separate affidavit of the amount due (1 Comp. Laws, § 846) need be prepared.
    3. Same — Time to File Affidavits — Practice.
    An affidavit filed in justice’s court, made on January 13th, and filed with the transcript of judgment on January 15th in the circuit court, is sufficient, and the delay was not such as to give rise to the presumption of payment after the affidavit was made and before it was filed.

      4. Same — Clerk of Court — Affidavit.
    That the clerk of the circuit court did not take into consideration the amount due, stated in the affidavit, where he properly docketed the transcript and the amounts due, is not an objection to the validity of the transcript, since his act was ministerial and execution properly issued for the correct amount.
    5. Execution — Levy—Bill in Aid of Execution — Indorsement of Levy — Sheriff.
    It was not error to permit the sheriff to indorse the levy of the execution on real estate of the defendant, by attaching to the execution at the hearing, a statement of his proceedings thereunder; the notice of levy recorded in the office of register of deeds is a sufficient compliance with the requirement of 3 Comp. Laws, § 10203.
    6. Same — Time of Receipt — Indorsement by Sheriff — Process.
    Oral testimony of the sheriff and an indorsement at the hearing, showing the time when he received the execution, sufficiently met the requirements of 3 Comp. Laws, § 10309, as to indorsement of the time of receipt.

      7. Creditor’s Suit — Bill in Aid or Execution — Fraudulent' Conveyance.
    Under evidence that a mortgage to one of the defendants was executed upon the property covered by execution, while action was pending between the complainant and his debtor, for the amount of the claim, that the money was paid over after judgment, and that defendants had stated that they had fixed matters so he could not collect his judgment, where they could not satisfactorily explain what became of the consideration of the transaction, sufficiently supports the determination of the trial court that the conveyance was fraudulent.
    Appeal from Hillsdale; Chester, J.
    Submitted October 10, 1910.
    (Docket No. 25.)
    Decided December 7, 1910.
    Bill by Charles A. Shepard against Henry U. Schrutt and Levi Schrutt, in aid of an execution. From a judgment for complainant, defendants appeal.
    Affirmed.

      Powell & Chase and Arthur L. Guernsey, for complainant.

      Merton Fitzpatrick and Wilbur Grommon, for defendants.
   Stone, J.

The bill of complaint' in this cause was filed in aid of an execution. The complainant here had, as plaintiff, on January 6, 1908, recovered a judgment in justice’s court against the defendant Henry U. Schrutt for $175.95 damages, and costs taxed at $5.60, making a total of $181.55. Later a transcript was taken to the circuit court, and an execution was issued and levied upon a lot known in this record as the “shed lot.” On January 7, 1908, a mortgage was placed upon record on this property bearing date January 4, 1908, executed by defendants Henry Schrutt and Chloe Schrutt, his wife, to the defendant Levi Schrutt; the consideration named being $400. The case in the court below turned upon the validity of the transcript, the levy, and the mortgage; the complainant claiming that the mortgage should be set aside as in fraud of his execution levy. Decree was entered for the complainant, and the defendants have appealed.

The transcript proceedings are all in the record, and we will'consider them in connection with the objections of the defendants. The claims of the defendants are:

(1) That the transcript was void because no execution was issued in justice’s court before the transcript was applied for.
(2) That the provisions of section 846, 1 Comp. Laws, in regard to second affidavit were not complied with.
(3) That the judgment entered upon the transcript was void because the clerk did not take into consideration the affidavit of the amount due.
(4) That section 10309, 3 Comp. Laws, was not complied with in regard to the indorsement of time of receipt upon execution.
(5) a That the provisions in regard to the indorsement of levies upon executions were not complied with, and those provisions were mandatory.
(b) Not having complied with section 10203, 3 Comp. Laws, complainant could not make out a prima facie case.
(6) That these mistakes and omissions could not be cured by amendment.
(?) That the allegations in the bill of complaint (relating to indorsement of receipt and levy of execution) were jurisdictional, and the fact they were not proven entitled defendants to dismissal of the bill.
(8) That the court’s findings, as filed, were not justified by the evidence introduced and the law as applicable to the facts proven.

Was the transcript void because no execution was issued in justice’s court before the transcript was taken ? In support of their contention counsel for defendants rely upon Peck v. Cavell, 16 Mich. 10. The statute in force when the above-cited case arose read:

“ Whenever an execution shall be returned unsatisfied in whole or in part, it shall be the duty of the justice * * * on demand * * * to give a certified transcript.” Comp. Laws, 185?, § 3786.

This statute has been aménded and now reads:

“Whenever an execution may by law be issued upon any judgment rendered by a justice of the peace for twenty dollars or over, exclusive of costs, the party in whose favor such judgment shall have been rendered * * * may make and deliver to the justice of the peace having control of such judgment, an affidavit, setting forth in substance that the deponent knows, or has good reason to believe, and does believe, that there are not sufficient goods and chattels liable to execution to satisfy such judgment, within the county in which said judgment was rendered, belonging to such person or persons against whom such execution may issue,” etc., it then becomes the duty of the justice to make the transcript. Section 845, 1 Comp. Laws.

There is no longer any reason for the rule laid down in Peck v. Oavell, and the present statute does not make the issuance of an execution necessary, as a prerequisite of making the transcript. Udell v. Kahn, 31 Mich. 196; O’Brien v. O’Brien, 42 Mich. 15 (3 N. W. 233); Vroman v. Thompson, 42 Mich. 145 (3 N. W. 306).

Defendants urge that a second affidavit setting forth the amount due upon the judgment was not made. Section 845, 1 Comp. Laws, provides what affidavit must be made to entitle one to a transcript. Section 846,1 Comp. Laws, provides what affidavit must be made to enable the clerk to file such transcript, and to enter and docket the judgment. . The affidavit provided by the first-named section is not sufficient alone; but if that affidavit states the amount due, and is promptly filed with the transcript in the clerk’s office, the amount due need not be stated in a separate affidavit. Udell v. Kahn, supra; Smith v. Circuit Judge, 46 Mich. 338 (9 N. W. 440). Hete the affidavit of the amount due was made January 13, 1908, and was filed with the transcript in the county clerk’s office January 15, 1908; that is, it was] filed with the transcript the next day but one after it was made. In Udell v. Kahn, supra, the transcript was filed within three days after the affidavit was sworn to, and it was held to be timely, and that there was no such delay as might give rise to a presumption that payment after the date thereof, and before filing with the clerk, may have been made, as was the case in Bigelow v. Booth, 39 Mich. 622, where 8 days had elapsed, and in Berkery v. Circuit Judge, 82 Mich. 160 (46 N. W. 436), where 11 days intervened. So it must be held that the clerk had authority to receive, enter, and docket this transcript.

We do not think that there is any merit in the third objection, that, in entering and docketing the judgment and issuing the execution, the clerk did not take into consideration the affidavit of the amount due. No claim is made that the transcript was not properly docketed, nor that the amounts entered on the transcript docket in the circuit court, or for which the execution issued, are different than the affidavit of the amount due set forth, but that the clerk, as he testified, considered the transcript, or transcript docket entry, instead of the affidavit. The act of the clerk was a mere ministerial one, and an execution cannot be defeated nor declared void, if legally and properly issued, because of what the clerk may or may not have considered in issuing it. The proper affidavit was there; but whether it was considered by the clerk or not is not important.

The fourth, fifth, sixth, and seventh objections of defendants'may be considered together. Upon this branch of the case we adopt the language of the circuit judge in a written opinion filed by him:

“ Having found that the transcript is a legal and valid judgment in the circuit court, we pass to the questions raised on the execution and levy. February 18, 1908, the execution in question was issued. The sheriff did not indorse thereon the year, month, day, and hour when he received the same. The sheriff on February 25, 1908, executed and caused to be recorded in the office of the register of deeds a notice of levy on the lands in question in the form prescribed by statute; the notice stating that, he had levied on the lands mentioned. The sheriff held the execution in his possession until the day of the trial of this case, and the same was offered in evidence without any indorsement of levy. Defendant objected to the execution being received in evidence because the time when it was received was not indorsed thereon; and, further, that it did not show that any fevy had been made. Upon application of complainant, and against objection of defendant, the sheriff was permitted to attach to the execution what proceedings he took by virtue of the execution, and when, and the same was made a part of the execution. In Vroman v. Thompson, 51 Mich., at page 456 (16 N. W. 810), it was said:
“ ‘ That the officer must attest the intellectual act of levying by a written memorial of some kind, cannot be denied. So much is fairly implied. But it is not admitted that the visible evidence required can only exist in the form of an indorsement on the writ. The statute does not require it, and there is nothing in the nature of the thing demanding it. The object is to have some outward and permanent manifestation of the fact; something which is durable, intelligible, and public, in the nature of a record to which all may resort who are entitled to information and desire it. The necessity is for evidence which is plain and accessible, and this is well afforded by the recorded notice prescribed by the statute. We held in Campau, v. Barnard, 25 Mich. 381, that this notice is primary evidence of the levy; and, when a levy is shown by primary evidence to exist, it is not perceived how it can be said not to exist. The supreme court of California have gone much farther than Campau v. Barnard. Blood v. Light, 38 Cal. 657 (99 Am. Dec. 441). No doubt it is the better practice to indorse the fact of levy on the execution when it is feasible to do so, but the levy cannot be regarded as imperfect for the want of it, where the proper notice is regularly recorded.’

“Also on page 459 the following language is used:

“ ‘ It has been shown that the facts were sufficient to constitute a levy on the 13th of September, 1876. Hence the subsequent indorsement of a levy, whenever made, is of no importance.’
“ See, also, Schoonover v. Osborne, 111 Iowa, 140 (82 N. W. 505, 82 Am. St. Rep. 496). Under these authorities I think the indorsement of levy was properly permitted upon the trial.
“Section 10309, 3 Comp. Laws, provides:
‘Upon the receipt of any execution, it shall be the duty of the sheriff or other officer, to indorse thereon the year, month, day and hour of the day when he received the same.’
“The sheriff did not comply with the provisions of this statute. The sheriff was called and gave oral testimony showing that he received the execution the same day the notice of levy was filed. Gan this omission defeat this execution? My attention has not been called to any decision showing that this omission is a fatal defect or a jurisdictional defect. In Hanson v. Barnes’ Lessee (3 Gill & J. [Md.]. 359, 22 Am. Dec. 327), under a similar statute, it was held that the omission of such an indorsement would not invalidate the execution. True, the evidence in this case does not show the reasons given in that case to exist in this State. If other proof than an indorsement made at the time of the receipt of the execution is permissible to show when the execution was received by the sheriff, then that fact is established with reasonable certainty as to time (1) by the oral testimony of the sheriff, and (2) by the indorsement permitted to be made upon the trial of this ease. I think this statute is not mandatory, and that this execution should not be declared a nullity by reason of the sheriff’s failure to indorse thereon the year, month, day, and hour of the day when he received the same. It being found that this is a legal and valid transcript judgment in the circuit court, and that the execution is valid, and that the levy made in accordance with law, and such levy properly indorsed on the execution, and the conveyance being proved, it must be determined that complainant has established a prima facie case.”

See, also, Munson v. Ellis, 58 Mich. 331 (25 N. W. 305).

Whether a technical case was made under section 10203, 3 Comp. Laws, by complainant upon the introduction of the documentary evidence, is not important here, for the reason that the complainant proceeded and offered testimony tending to show a fraudulent mortgage of the “shed property; ” and in a chancery case we must consider the entire record of evidence. The meritorious question is whether upon the whole record the complainant should have the relief prayed for as to the “ shed property ” mortgage. It is a significant fact that the mortgage, even if executed at its date, which is questioned, was made by Henry U. Schrutt to his brother Levi while the suit was pending in justice’s court which resulted in a judgment on January 6, 1908. The mortgage was left for record by the mortgagor on January 7, 1908. The defendants testify that it is their recollection that the money was paid over before judgment, and they fix the date'by the fact that Levi had a certificate of deposit cashed at the bank. This certificate was canceled at the bank January 7,1908, and it must be found that the money was not paid until that day. The record discloses that both Henry and Levi stated, in different conversations, that they had matters fixed so that Shepard could not collect his judgment. Their explanations of their dealings, and what was the real consideration for the mortgage, and what was done with the money, are far from satisfactory.

A careful examination of the entire testimony leads us to the conclusion that the evidence preponderates in favor of complainant, and that the circuit judge, who heard and saw the witnesses testify, reached a proper result in the case, and the decree below is affirmed, with costs to the complainant.

Bird, C. J., and Ostrander, Brooke, and Blair, JJ., concurred.


author: Brooke, J.

text:
    SCHWANZ v. WUJEK.
    1. Contracts — Parent and Child — Support of Parent.
    No liability attaches to a son for medical services and attention rendered to his father, except by express agreement or by virtue of 2 Comp. Laws, § 4487, providing for the maintenance of indigent persons by their children, as required by the directors of the poor, and providing for the method of procedure for determining their liability.

      3. Same — Question for Jury — Express Contract.
    But the case should have been submitted to the jury under plaintiff’s evidence, disputed by defendant’s testimony, that the son promised to pay for the services.
    3. Trial — Conduct of Judge — Prejudicial Instructions to Jury.
    Remarks of the trial judge to the attorneys and expressions in the charge of the court showing bias or prejudice constitute reversible error.
    Error to Wayne; Donovan, J.
    Submitted November 17, 1910.
    (Docket No. 24.)
    Decided December 7, 1910.
    Assumpsit by Martin J. Schwanz against Casimir Wujek for medical services and attendance. Judgment for plaintiff. Defendant brings error.
    Reversed.

      William Van Dyke, for appellant.

      G. L. Bartlett, for appellee.
   Brooke, J.

Plaintiff, a surgeon and owner of a private hospital, brought suit against defendant to recover for his services in operating on defendant’s father, and for the care of the patient in 'his hospital for some 11 weeks. Eor the operation plaintiff claimed $400, and for the attendance $40 per week, or about $450. He recovered a judgment for $400.

Testimony was offered by the plaintiff tending to show that, when defendant brought his father to plaintiff’s hospital, he agreed to become responsible for his father’s care and operation. This was denied by defendant. Upon the question of the contract, the court charged the jury as follows:

“Now, gentlemen, to make a contract with the doctor is to be as unreasonable in a case of this kind, as it would be to make a contract with a railroad company to take you as far as you wanted to go. How can they make a con tract, except with a man utterly unreliable ? How can you make a contract with him, how much he would be willing to take to get through ? A man who would make a contract in a case like this would be the worst kind of a judge. There could not be any contract, because they do not know how long the man will be ill, or how sick he would be, or how serious to take care of him. * * * I am perfectly willing you should consider the circumstances from beginning to end, how much would be a fair compensation, considering the sickness of the patient, the condition of the patient, and the care, and the length of time, and put it here to the plaintiff in one sum, because it is not like a promissory note, a sum fixed. They do not make a direct contract about it. It would be a sum such as the law fixes, a reasonable sum. For instance, the way you remember, that homely illustration of boarding the horse; the same as caring for him, it would be just what a reasonable sum would be. The same as treating your wife; you are bound to pay for it. It would be just what that reasonable sum would be. The same as treating this man’s father, from his home, where he should have been treated if at all. Where the father had placed the land, where he knew that the son was to care for him through the balance of his life, to let him down easily into the grave. That son could make the bargain, there is no doubt about it whatever. The law will imply if somebody took part of that burden, even if it was a hired man, that came in and cared for him one week, it would imply that the son would pay for it. It would imply he would pay for the hospital board. Anybody that relieved him of his obligation would be reasonably compensated.”

We think that the only construction which the jury could place upon this language was that there was a common-law liability resting upon the son to reasonably provide for his father, that the contract followed as an implication of law, and that the only question to be determined by the jury was the amount which defendant should pay. We are unable to find any justification for this view of the son’s obligation to his father. Undoubtedly there rested upon the son the moral obligation to care for his father so far as was consistent with his own means and station in life, but this was not a legal duty except as it became so by virtue of statutory enactment. Section 4487, 2 Comp. Laws, provides:

'* The father, mother, and children, being of sufficient ability, of any poor person who is blind, old, lame, impotent or decrepit, so as to be unable to maintain himself, shall, at their own charge, relieve and maintain such poor person, in such manner as shall be approved by the directors of the poor of the township where such poor person may be.”

Sections 4488-4492 provide the method of procedure for fixing and regulating the liability of the relatives.

It is clear the liability does not attach until the statutory proceedings have been had. North v. Circuit Judge, 59 Mich. 624 (26 N. W. 810), and cases there cited; Clinton v. Laning, 61 Mich. 355 (28 N. W. 125). The court should have instructed the jury that, in order for the plaintiff to recover, they must find from the evidence that the son had contracted to become liable for the operation upon, and the care and maintenance of, the father. Under such a charge, upon this record, there was testimony tending to show such a contract, and the jury might have so found.

Many errors are assigned upon remarks made by the court to counsel for defendant during the trial. To quote these remarks and examine them at length would serve no purpose of profit to the profession. It is sufficient to say that jurors are very prone to follow the slightest indication of bias or prejudice upon the part of the trial judge. This well-known fact should always, and it usually does, so impress itself upon the mind of the court that a manifest leaning towards one side or the other is impossible. We think that the attitude of the learned circuit judge, as indicated by his remarks to counsel for defendant and by his charge, was such as to clearly prejudice defendant’s rights'.

The judgment is reversed, and a new trial ordered.

Bird, C. J., and McAlvay, Blair, and Stone, JJ., concurred.


author: Blair, J.

text:
    HANSELMAN v. GRAND TRUNK WESTERN RAILWAY CO.
    1. Easements — Railroads—Right of Way — Use in Common.
    An injunction will not be granted to complainant, the owner of a parcel along which a private right of way runs giving access to complainant’s factory, to restrain a railroad company, having rights in common in the way with him, from constructing a siding for occasional use, upon a portion of the way, so long as no use is made thereof which unreasonably interferes with complainant’s rights.
    2. Same — Railroad Siding — Deeds—User.
    Under a deed by complainant to the railroad company conveying a right to use the way “to the fullest extent which the parties of the first part have the right to make use of the same, but without in any manner, or to any extent, diminishing the right of the first parties, etc., to make use of said right of way in common ” with the grantee, the railroad company obtained a right to the use of the way for any of the purposes for which such a right of way might usually be used by a railroad company, subject to complainant’s joint rights.
    3. Same — Joint User.
    What constitutes a reasonable use of the easement is a question of fact, and is a limitation upon defendant’s right of user enforceable in complainant’s behalf.
    A Same.
    Since the location of the side track upon a particular portion of the easement would not of itself interfere with complainant’s use of the way, he cannot compel defendant to locate the siding where he chooses to have it, although he may prevent unreasonable use of the track.
    5. Same — Grant of Joint Right to Easement — Damages.
    By selling to defendant company the right to use the way, complainant waived any claim to statutory damages for the taking and use of the easement for railroad purposes.
    6. Railroads — Franchise—Easement.
    Where the use of a right of way was derived by a railroad company by deed, conferring the joint right to use an easement on a portion of complainant’s premises, its right depended on the conveyance, not on its franchise from the municipality to use streets and other ways, and the validity of the franchise and ordinance is not subject to complainant’s objection.
    Appeal from Kalamazoo; Knappen, J.
    Submitted October 17, 1910.
    (Docket No. 72.)
    Decided December 7, 1910.
    Bill by George Hanselman against the Grand Trunk Western Railway Company, to restrain the construction of a siding. From a decree awarding a part of the relief prayed both parties appeal.
    Reversed and bill dismissed.

      E. M. Irish, for complainant.

      H. Geer, for defendant.
   Blair, J.

Complainant asks a permanent injunction against the defendant which will prohibit it from laying and operating a steam railway side track over the east one rod of lot No. 125 in Kalamazoo. Complainant is the owner of the westerly four rods of lot No. 125, which lies on the south side of East Main street. Lot No. 125 is five rods in width, and when the complainant purchased the west four rods of the same he was also, as a part of his purchase, deeded a right of way over the east one rod; the right of way clause being as follows:

“Also the right of way one rod in width on the easterly line of said lot 125, leading from said lot 302 northerly to Main street.”

Lot 302 is owned by complainant and lies south of lot No. 125. The defendant now owns the fee in said east .one rod; the complainant acquiring the right of way, and the defendant the fee, in this one rod through a common source of title. Before any controversy arose between the parties to this case, the complainant deeded some land immediately south of this one-rod strip to George W. Alexander, as trustee, as follows:

“Also granting hereby the right to make use of the right of way owned by the parties of the first part over and across the easterly one (1) rod of lot one hundred and twenty-five (125) of said plat, to the fullest extent which the parties of the,, first part have the right to make use of the same, but without in any manner or to any extent diminishing the right of the first parties, their heirs or assigns, to continue to make use of said right of way in common with the said party of the second part, his successors or assigns.”

Complainant knew that Alexander was buying the land » for railroad purposes, but was told by Mr. Hays, who conducted the bargain for Alexander, that the land east of this right of way would be used for a passenger station, and complainant knew nothing of any intention to lay tracks on the right of way. Defendant laid its main north and south line of railroad east of this right of way and now claims the right to lay a spur or side track, across the northeasterly end of this one rod of right of way for the purpose of getting to its freighthouse on the north side of Main street. The west four rods of lot No. 125, which is owned by the complainant, are completely covered by his factory, a three-story, brick building used for the manufacture of candy. He owns land to the south of this lot, which is also occupied by his plant, and. his only way of getting in and out with his teams and the teams of his customers, and of getting to his stables in the rear, is over this right of way. It had been used as a passageway for teams daily for more than 20 years before the deed was made to Alexander. The side track which defendant proposes to lay would have its inside, or west, rail within six feet of the west line of the right of way; that is to say, within six feet of the east wall of complainant’s factory-^, this, at the north end of the right of way, where complainant’s teams enter from Main street. The average freight car would project two féet over the rail, bringing it within four feet of the brick wall, thus making it impossible to get a team in and out when cars were on the track or approaching. The court below granted a decree that the defendant might lay its track on that part of the right of way which lies 12 feet east of complainant’s east line, but not elsewhere. From this decree both parties appeal.

It is claimed on behalf of complainant that the defendant has no right to lay its tracks and operate its road in the streets of the city of Kalamazoo, for the reason that the franchise under which it claims is void for want of jurisdiction in the city council to pass it. It was not advertised as the charter provides. It is further claimed, in substance, that the clause in complainant’s deed to Alexander constitutes a contract between the parties obligating defendant to make the same kind of use of the right of way that complainant was making of it and excluding the right to lay a track or operate cars over it, Complainant testified:

“Q. Will it be possible for you to carry on your business with this right of way blocked ?
“A. No, sir. If there were no cars on the'track this railroad of itself would not interfere with my getting in and out, if there was no obstruction nor cars on the track, and just the track itself.”

We cannot concur in complainant’s construction of the right of way clause in his deed to defendant. In our view, the legal effect of that clause was to authorize the defendant to use the right of way for any of the purposes for which a right of way over such a strip of land might usually be used by a railway company, so long as such use did not unreasonably limit complainant’s common use thereof. As to what would constitute a reasonable use by the defendant would be for the most part a question of fact, and such use cduld be enforced by the courts. Under complainant’s testimony, it is apparent that the location of defendant’s side track upon any particular portion of the one-rod strip would not of itself interfere with his use of it, and he therefore cannot compel its location where he chooses to have it, but may protect himself against any unreasonable use of the track injuriously affecting his right of common use.

We do not consider the question of the validity of the ordinances or of the defendant’s franchise to be of any importance, since defendant derived its authority to use the right of way from complainant and its right to cross Main street from its charter and required no franchise for that purpose.

We are also of the opinion that, when complainant sold the right of way to defendant, he waived his claims for statutory damages. 33 Cyc. p. 161, par. 3.

The decree is reversed, and the bill dismissed, with costs to defendant.

Hoceer, Moore, McAlvay, and Brooke, JJ., concurred.


author: Hooker, J.

text:
    BOYNTON v. KENT CIRCUIT JUDGE.
    Mandamus — Motion to Open Default — Abuse of Discretion.
    The denial of a motion to open the default of defendant, in an action of assumpsit, based on a consideration of the affidavits of plaintiff and defendant, and involving the determination of a question of fact, is an exercise of discretion not reviewable by mandamus for an alleged abuse of discretion.
    Mandamus by Jeremiah W. Boynton to compel Willis B. Perkins, one of the judges of the circuit court for the county of Kent, to vacate an order denying a motion to open relator’s default, and to vacate his default in an action at law. Preliminary writ allowed September 28, 1910.
    Submitted October 18, 1910.
    (Calendar No. 24,270.)
    Writ denied December 7, 1910.

      John W. Powers, for relator.

      William, Pj. Grove, for respondent.
   Hooker, J.

The relator was defendant in an action upon a promissory note. His appearance was duly entered, and his default for not pleading was properly and seasonably entered. A motion to set aside the default based on his affidavit was denied, and this application is made for a mandamus to compel the circuit judge to vacate and set aside said order, and to make an order vacating the default.

The court heard this application upon affidavits. The plaintiff’s affidavit was the usual formal one, throwing no light upon the questions of fact or law in dispute. Defendant’s affidavit shows how the claim arose, etc., and none of these circumstances were denied. The court exercised his judgment in the matter, believing the plaintiff and disbelieving the defendant, as he expressly states. Where, as in this case, the action of the trial court is the exercise of honest judgment on a question of fact, he cannot be chargeable with abuse of discretion. The case is similar to Carton v. Day, 157 Mich. 48 (121 N. W. 295). The writ is denied.

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


author: Per Curiam.

text:
    BOYNTON v. KENT CIRCUIT JUDGE.
    Mandamus by Jeremiah W. Boynton to compel Willis B. Perkins, one of the judges of the circuit court for the county of Kent, to vacate an order denying a motion to open relator’s default and to vacate his default in an action at law. Preliminary writ allowed September 28, 1910.
    Submitted October 18, 1910.
    (Calendar No. 24,270.)
    Writ denied December 7, 1910.

      John W. Powers, for relator.

      William E. Grove, for respondent.
   Per Curiam.

This cause is ruled by the case of Boynton v. Kent Circuit Judge, ante, 500.


author: Ostrander, J.

text:
      In re GIBSON’S ESTATE. APPEAL OF DAVIDSON.
    Estates of Decedents — Claims—Contracts.
    On the trial of a claim against the estate of a decedent for labor and services, it was proper to direct a verdict for defendant under testimony showing that claimant ceased to work for decedent more than six years before his death, that he had presented a claim against the deceased many years before, which had been compromised and paid, that deceased said to a person who appeared as a witness that he was going to give claimant his farm some day, but no evidence showed that the decedent agreed to pay claimant in money or property out of his estate, after his death, or that claimant performed any services after the alleged statements of deceased.

      Error to Oakland; Smith, J.
    Submitted October 24, 1910.
    (Docket No. 5.)
    Decided December 7, 1910.
    "William Davidson presented a claim against the estate of Jerome Gibson, deceased. It was disallowed by the commissioners on claims of said estate and claimant appealed to the circuit court. A judgment for defendant on a verdict directed by the court is reviewed by claimant on writ of error.
    Affirmed.

      Andrew L. Moore, for appellant.

      Patterson & Patterson, for appellee.
   Ostrander, J.

Claimant presented to commissioners on claims the following:

“The Estate of Jerome Gibson, deceased, to William Davidson, debtor, for work, labor and services from December 1, 1870, to December 1, 1905, including use of team, $2,000.00.”

It was disallowed. On appeal to the circuit court, a verdict for the estate was returned by direction of the court. A motion for a new trial was denied. There was testimony tending to prove that claimant, a"t different times, from 1879 to 1896, performed services for decedent. How much he was to be paid does not appear. How much he was paid does not appear. It seems that after or during 1896 and for a year or two he worked decedent’s farm on shares. In 1890 he presented a claim to decedent through an attorney and later stated to his attorney that he had settled the claim for $50 paid to him by Gibson on ^November 22, 1890. This testimony by the attorney is not disputed. There is no testimony tending to prove that Davidson and Gibson ever agreed that Davidson should perform services to be paid for in money or property after the death of Gibson. Such testimony as is relied upon by claimant is that of witnesses who undertake to recite statements made to them by decedent, some of the many years before the cause was tried, to the effect that when he died Davidson would get something out of his property, or would get a home, in payment for the good work he had done for him. One witness testified that decedent said to him that Davidson had been a pretty good fellow, and he guessed he would give him the farm.

“He said he told him [Davidson] he would give him the farm some day.”

Witness fixes the date of this conversation as in 1898. Claimant’s, daughter testified to like statements made by decedent to her, and, also, that he said in the presence of her father there was no use of settling up things; he was going to will him when he died a home to pay for his labor. There is no testimony tending to prove that claimant ever performed any service for decedent after any of these statements were made.

We are of opinion that the court below properly declined to submit the case to a jury.

The judgment is affirmed.

Bird, C. J., and Hooker, Moore, and Stone, JJ., concurred.


author:
Hooker, J.
      Blair, J.

text:
    PEOPLE v. YUND.
    1. Assault and Battery — Res Gestas — Subsequent Ocourrenoe.
    It was error, on cross-examination of complaining witness in a prosecution for assault and battery, to exclude questions relative to what occurred in continuation of the quarrel, without interruption, a short distance from the place of the first assault.

      2. Criminal Law — Former Conviction — Cross-Examination — Trial.
    In a prosecution for assault and battery, in which respondent took the stand, it was within the discretion of the circuit court to permit the prosecutor to cross-examine the respondent as to the details of a former conviction for another offense. Blair, J., dissenting.
    3. Same — Conduct of Proseoutor — Argument.
    While the prosecuting attorney improperly stated, in argument to the jury, that if they convicted respondent on appeal from a conviction in justice’s court, they would do only what another jury had done, the misconduct was not reversible error, where the circuit judge corrected the effect of it at the time, and advised the jury that no weight should be given to the result in justice’s court.
    4. Same — Presumption of Innooenoe — Reasonable Doubt.
    While it was error for the circuit judge to omit to instruct the jury as to reasonable doubt and the presumption of innocence, a just conviction will not be reversed for such omission which is not brought to the court’s attention by exception or request to charge.
    5. Same — Appeal and Error.
    The right of appeal is statutory, and review and reversal for an error not raised in accordance with the statutes and rules of practice, is not a right of a defendant, but may be discretionary with the court, although such discretion is seldom exercised.
    Exceptions before sentence from Berrien; Coolidge, J.
    Submitted October 21, 1910.
    ( Docket No. 146.)
    Decided December 7, 1910.
    Philip Yund was convicted of assault and battery on appeal from a conviction in justice’s court.
    Reversed.

      John J. Sterling, for appellant.

      William H. Andrews, Prosecuting Attorney, for the people.
   Hooker, J.

The respondent was convicted of assault and battery in circuit court on appeal from a similar conviction in justice’s court.

The evidence indicates that the parties (complainant and defendant) had an altercation over the pay for some bolts and timber, sold by complainant to defendant. It culminated in the alleged assault while they were going to the depot, after an agreement had been reached. The details of the affair need not be stated. The depot was but a short distance, i. e., about 125 feet from the scene of the altercation, and respondent’s counsel sought to show that complainant had continued the quarrel at the depot. One Monroe testified:

“ I saw those two parties at the station on the 15th of April, 1909, about the time the fight occurred. I noticed that one side of Yund’s face was somewhat bloody, and swollen and dirty. His collar was torn off. He took a clean collar from his grip and put it on in the depot. I saw Mr. Heffner there in the depot.
“Q. Was there any disturbance at the depot?
“Mr. Andrews: I object to it.
“The Court: The objection is sustained.
“Mr. Sterling: Note an exception.
“Q. Did Mr. Heffner in your presence call Mr. Yund a ‘son of a bitch,’ and say if he would come outside, ‘I would lick him in less time than he could tell about it,’ or something to that effect ?
“Mr. Andrews: Objected to.
“The Court: The objection is sustained.”

It was claimed that this tended to corroborate defendant’s testimony that complainant was the aggressor. Similar questions were asked of the complaining witness on cross-examination, and the testimony was excluded on objection by the prosecutor. On defendant’s cross-examination, the following occurred:

“Q. Have you ever been arrested before this ?
“A. Yes, sir.
“Q. What were you charged with at that time ?
“A. Libel.
“Q. Convicted?
“A. Yes, sir.
“Q. Fined?
“A. Yes, sir.
“'Q. Paid your fine ?
“A. Yes, sir.
“Q. Libel [is publishing that which you know to be false against somebody else, is it not ?
“Mr. Sterling: I object to that.
“The Court: He is not called upon to define that.
“Mr. Sterling: I except to that question being propounded to the witness. It is done solely for prejudice; that is all.
“Q. In that case you were charged with publishing?
“Mr. Sterling: I object to the question before it is propounded.
“The Court: He has not finished.
“Q. You were charged with publishing a false statement against a neighbor of your township ?
“Mr. Sterling: I object to the question.
“The Court: The objection is overruled.
“Mr. Sterling: They may show he was convicted of that offense and punished for it, but not to go into the details of it.
“The Court: He cannot go into the details. He was charged with committing a certain offense, and the prosecutor can state just what he was charged with. That is all he is attempting to do now.
“Mr. Sterling: The records will show for themselves. (Question read.)
“Mr. Sterling: I object to it; the records are here of this court, and that is the best evidence of what he was charged with.
“The Court: The objection is overruled.
“Mr. Sterling: 'Note an exception. (Question read.)
“The Witness: In what way do you want me to answer ?
“Mr. Andrews: Answer any way you want to.
“Mr. Sterling: He has asked you what the charge was against you.
“ The Witness: I published a statement, yes.
“Q. I say you were charged with publishing a false statement against that party ?
“A. I said, ‘Yes.’
“Q. And you were convicted of that charge ?
“A. Yes, sir.
Q. And the party was Philip Hyler of your township ?
“A. Yes, sir.”

In his argument to the jury the prosecuting attorney said:

“ If you say he is guilty, you will only be doing what another jury has done up at Watervliet, before this was appealed.”

To which language and remarks counsel for respondent excepted.

“The Court: The jury should pay no attention to what is done below whatever — not the least in the world — what is tried before that jury.
“Mr. Andrews: The defense brought it in.
The Court: It makes no difference if brought in by a dozen different witnesses. The jury try the case by the evidence here, and what was done in justice’s court should have no influence whatever.”

The charge of the trial judge was short and we give it in full:

* ‘ Gentlemen of the jury: I do not propose to say but a word or two with reference to this case. It is really a case for you and not for the court. There are no questions of law of great importance in this case; simply questions of fact for you to decide; an assault and battery case, and it is one of those cases for a jury to decide from the testimony in the case, and for the court to say very little. I will say a word or two. If the defendant in this case was the aggressor, made the first assualt upon the complaining witness, then of course he is liable. If the complaining witness first made an assualt upon the defendant, then of course the defendant is not liable for assault and battery, unless he used excessive force. It is claimed here by the prosecution that the defendant kicked the complaining witness. It is for you to decide, if it becomes necessary, whether the defendant used excessive force. That is, more force than was necessary to protect himself, or more force than a prudent man would use under those circumstances, under the excitement of the fight.
“At the request of defendant’s counsel I also make another charge; if you find here that there was a mutual fight, which is called in law an affray, then the defendant would not be liable unless he used excessive force. That is, if two men go out to fight, if they are both willing to fight, if each invites the other, neither of ■ them are liable for assault and battery unless excessive force was used. They are liable to the people, but not to each other. This is called an affray, where the two men get into a fight and both want to fight. They are liable both to be hauled up and punished for fighting. However, in the case of an affray if one uses excessive violence, goes entirely too far out of proportion to the affair, he is liable for assault and battery. Those are all the principles that apply to this case. You simply use your good sense. I have nothing to say about the merits of the case. The officer can be sworn.”

No requests were offered, nor was an exception taken.

Counsel assign error upon the failure to instruct upon the subject of the presumption of innocence and reasonable doubt.

We think the conversation at the depot was a part of the res gestee. It appears to have been a continuation of the quarrel, without interruption. The cross-examination of the complainant and the testimony of Monroe were admissible.

There was no error in the cross-examination of respondent, in relation to his conviction for libel. The matter was within the discretion of the circuit judge.

The argument of the prosecuting attorney was improper, .but as it was a fact which must have been known, from the record, we should not reverse the case on that ground, especially in view of the remarks of the learned circuit judge in that connection.

Ordinarily a charge in a criminal case should contain instructions upon the subjects of the presumption of innocence and reasonable doubt. We should not reverse this cause for that omission; neither request nor exception being taken. It cannot be doubted that this omission was inadvertent, possibly in view of the fact that the jury had listened to instructions repeatedly in other cases; neither can it be doubted that had counsel suggested the subject or the omission, the judge would have given such instruction. A premium should not be placed on the practice in this case. Counsel owe it to the trial judge to be attentive to the charge and suggest corrections where respondent’s rights are injured by it. Especially is this true where the rule is as well understood as in these particulars.

Again, while an exception need not be taken to misstatements of law in the charge, it is usually necessary where the fault consists of an omission. It is only fair to the public and to the trial judge, that exceptions be taken in both cases. The necessity has been abolished in the former case, but we cannot extend the rule. We do not overlook the alleged power of this court to consider the question, though no request was made nor exception taken, but it is only in cases clearly demanding it by reason of an apparent miscarriage of justice, that we will do so.

The right of appeal is statutory, and review and reversal for an error not raised in accordance with the statutes and rules of practice is not a right of a defendant, but may be within the discretion of this court, though it is seldom exercised. People v. Maunausau, 60 Mich. 15 (26 N. W. 797); People v. Waller, 70 Mich. 237 (38 N. W. 261); People v. Ezzo, 104 Mich. 341 (62 N. W. 407); People v. Warner, 104 Mich. 337 (62 N. W. 405); People v. Willett, 105 Mich. 110 (62 N. W. 1115); People v. Considine, 105 Mich. 149 (63 N. W. 196); People v. Parsons, 105 Mich. 177 (63 N. W. 69); People v. Hinshaw, 135 Mich. 378 (97 N. W. 758); People v. Murphy, 56 Mich. 546 (23 N. W. 215); People v. Carter, 96 Mich. 583 (56 N. W. 79); People v. Garter, 117 Mich. 576 (76 N. W. 90). The cases relied upon by respondent’s counsel to sustain this contention were reviewed and distinguished by Chief Justice Morse, in the case of People v. Graney, 91 Mich. 649 (52 N, W. 66), and this was followed in an opinion written by Mr. Justice Grant, in People v. Ostrander, 110 Mich. 60 (67 N. W. 1079).

The judgment is reversed, and a new trial ordered.

Moore, McAlvay, and Brooke, JJ., concurred with Hooker, J.

Blair, J.

I think there was reversible error in permitting cross-examination as to the details of the libel, and I concur in reversal upon the ground stated in the opinion. As to the other questions, which will probably not arise upon another trial, I express no opinion.


author: McAlvay, J.

text:
    PEOPLE v. GILBERT.
    1. Larceny — Criminal Law — Value.
    In a prosecution for larceny of a watch and chain, testimony of the owner that it was worth §42.50 to her, is incompetent to prove its market value.
    2. Same — Evidence—Simple Larceny.
    Where other evidence was introduced to show that the stolen watch was worth §25, and no competent evidence appeared of record that the value was more than $25, respondent was erroneously convicted of a circuit court offense.
    8. Same — Market Price — Evidence.
    By value is meant, not what the thing is worth to the owner, but the price that it would bring at the time and place of larceny in open market.
    4. Same — Sentence—Justices oe the Peace.
    For a conviction at circuit of a crime within the jurisdiction of a justice of the peace, no greater punishment can be imposed than could be imposed by a justice (People v. Harrington, 75 Mich. 112 [42 N. W. 680]), and where respondent has already served seven months of a sentence, which, at its maximum, should be only three months, the respondent should be discharged.
    Error to Ingham; Collingwood, J.
    Submitted October 21,1910.
    (Docket No. 148.)
    Decided December 7, 1910.

      William Gilbert was convicted of larceny and brings error.
    Reversed, and prisoner discharged.

      Jason JEJ, Nichols, for appellant.

      Walter S. Foster, Prosecuting Attorney, for the people. ,
   McAlvay, J.

Respondent was prosecuted and convicted of stealing personal property of the value of over $25. He was sentenced to prison at Ionia for the period of not more than 5 years and not less than 2£ years. The court recommended that he should serve 5 years.

In bringing the case to this court for review, respondent raises but one question. He insists that under the proofs he should have been convicted of larceny of goods under the value of $25 and sentenced accordingly. All of the proof tending to show the value of the stolen property to be greater than $25 was based upon the inquiry as to what it was worth to the owner. The property consisted of a watch and chain, and the owner testified that she did not know its value, and only from hearsay knew what it cost several years before, when her daughter made a present of it to her. She testified that the property was worth to her $42.50; that she did not know the value of it. All of this testimony was subject to objection, and the court refused to strike it out.

The court was in error in receiving such evidence. The rule is well settled that the special value to the owner of property stolen is not the proper basis for proving its value. If the articles have a market value at the time and place of larceny, that is the true basis. 1 McClain on Criminal Law, par. 585.

“By value is meant, not what the thing is worth to the owner, but the price that it would bring in open market.” 18 Am. & Eng. Enc. Law (2d Ed.), p. 467, citing State v. Doepke, 68 Mo. 208 (30 Am. Rep. 785).

There was evidence of the market value of this property. Eliminating the testimony objected to, there was no evidence in the case from which the jury could determine this property to be of greater value than $25, which must be found in order to convict of “grand” larceny. Counsel for respondent argues that his client should have been convicted of “simple” larceny and sentenced accordingly. We agree with this contention.

Such being our conclusion, we must consider the sentence imposed by the court. The offense proved against respondent, and for which he should have been convicted and sentenced, was larceny of property of less value than $25, and within the jurisdiction of a justice of the peace.

“ It is the settled law of this State that for a conviction at the circuit of a crime within the jurisdiction of a justice, no greater punishment can be given than could be imposed by a justice.” People v. Harrington, 75 Mich. 112 (42 N. W. 680).

The maximum term of imprisonment which a justice may impose is three months, and more than that time has expired since respondent was committed under the sentence of the court. In any view which may be taken of this case, he cannot be longer confined.

The judgment is therefore reversed, and respondent is ordered discharged.

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


author: Moore, J.

text:
    PEOPLE v. LOWERIE.
    1. Criminal Law — Appeal and Error — Jurisdiction—Plea op Guilty.
    It is not a sufficient ground of objection to the jurisdiction of the court, that respondent was arrested for drunkenness on the street without a warrant, when he has submitted himself to the jurisdiction of the court by a plea of guilty.
    3. Same — Drunkards—Statutes.
    Evidence tending to show that respondent was intoxicated on the street of a village, that the sheriff followed and arrested him upon private property, warrants a conviction for drunkenness under 3 Comp. Laws, § 11736.
    3. Same — Trial—Instructions to Jury.
    In the absence of a request for more ample instructions, the court’s charge to the jury that the charge of being drunk signified such a condition as is induced from the excessive use of intoxicating liquors, and that the jury should determine the question from their common knowledge of its meaning, is sufficient.
    Exceptions before sentence from Missaukee; Lamb, J.
    Submitted October 21,1910.
    (Docket No. 147.)
    Decided December 7, 1910.
    Abe Lowerie was convicted of being drunk upon a public street.
    Affirmed.

      Gaffney & Miltner, for appellant.

      Norman W. Dunan, Prosecuting Attorney, for the people.
   Moore, J.

It is the claim of the people that in April, 1909, the sheriff of Missaukee county saw the respondent in a state of intoxication on the main street of the village of Lake City, and started toward him for the purpose of placing him under arrest; that before the arrest was made the respondent had passed from the highway upon a lot owned by a private citizen. The arrest was made without a warrant. The respondent was put in the county jail. Upon the following morning the sheriff made and swore to a complaint in writing, charging that the respondent—

“Was then and there drunk upon the streets of the village of Lake City, in said township of Reeder and county of Missaukee, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the people of the State of Michigan; wherefore the said William H. Brown prays that the said Abe Lowerie may be apprehended and held to answer this complaint, and further dealt with in relation to the same as law and justice may require.”

A warrant was issued and respondent was taken before the magistrate. We now quote from the brief of counsel for respondent:

“To which complaint and warrant respondent pleaded guilty and thereafter appealed to the circuit court of said county. There a trial was had before a jury. After the conclusion of the people’s case, the respondent moved the court to direct a verdict of not guilty and discharge respondent from custody for two reasons:
“jFirst. Because it appears from the testimony of the people that no violation of any law of this State was shown at the time of the arrest.
Second. Because it appears from the testimony of the people that the arrest was made for a misdemeanor without a warrant and not during the actual commission of any offense.”

This motion was overruled. No testimony was offered on the part of respondent and no requests to charge were made in his behalf. The case was submitted to the jury who found a verdict of guilty. The case is here upon exceptions before sentence.

We again quote from the brief:

“The respondent relies principally upon two assignments of error which will be discussed in the order beginning:
“jFirst. The court erred in refusing to grant the motion of respondent to direct a verdict of not guilty and discharge him from custody because of the illegal arrest without a warrant, while the respondent was on private property.
Second. Because the court erred in stating to the jury that if they believed the respondent was drunk on Main street when the sheriff first saw him, that that would be sufficient for them to convict. The mere fact that he afterwards went upon private property would not change his condition.
Third. Because the court did not give a proper charge to the jury of what constituted the crime of drunkenness.”

First. Much space is used in the briefs in arguing the question of when an arrest can be made without a warrant. We deem it unnecessary to follow this discussion for the reason that when the respondent was taken before the magistrate he pleaded guilty to the complaint as contained in the warrant, thereby submitting himself to the jurisdiction of the court.

Second. What we have already said disposes of part of this proposition. The statute applicable to this case reads in part as follows:

“ That any person who shall be drunk or intoxicated * * * in any street, alley, lane, highway * * * or other public place * * * shall, on conviction thereof before any court of competent jurisdiction, be punished, * * *” etc. 3 Comp. Laws, § 11736.

There was an abundance of testimony to justify a conviction for a violation of this statute.

Third. The court charged the jury in part as follows:

“ The sole question for you here is, whether on that day the respondent was drunk and if so whether he was on the public street in the village of Lake City while he was drunk. Now, it is almost a begging of the question to attempt to define what we mean by ‘ drunk.’ I shall only charge you in that regard that a charge of drunk signifies such a condition of a person as is induced from the excessive use of intoxicating liquors, and you have simply to say from all the testimony in this case whether or not the respondent was drunk; that is a common expression and everybody knows what condition a man is in, in order to be drunk, and you must determine that condition from the testimony so that the definition does not make it any plainer than the charge itself; however, it is for you to take into consideration all the facts and testimony and from that testimony determine, beyond a reasonable doubt, whether the respondent was on the 14th day April, last, drunk, and, if so, was he drunk on the public streets of Lake City.”

In the absence of any request to amplify this charge, we think it sufficient.

The conviction is affirmed, and the case is remanded for further proceedings.

Hooker, MoAlvay, Brooke, and Blair, JJ., concurred.