author: Ostrander, J. Moore, C. J.

text:
    RONEY v. HEALY.
    1. Continuance — Absence of Witness — Motions.
    It was not reversible error, on the trial of a cause after defendant had completed his proofs and plaintiff moved to adjourn the case in order to obtain the testimony of a witness who had been served with a subpoena, and had left the city to return on the following day, to deny plaintiff’s motion and submit the case to the jury, the court not being advised when the absent witness could be produced and no definite time being fixed by the motion, and it appearing that the testimony of such absent witness would not have affected the disputed question at issue.
    2. Same — Appeal and Error — Refusal to Adjourn Cause.
    The refusal to continue the case being justifiable, it was not erroneous to deny a motion for a new trial.
    3. Brokers — Commissions—Contracts.
    Where defendant claimed that by agreement with his broker he was to pay 1-J per cent, commission on money obtained for his use, exclusive of certain funds required to cancel a mortgage on the premises in question, and plaintiff claimed that he was to have his reasonable commission on the entire loan secured, it was not erroneous to submit to the jury the question of special contract.
    Moore, C. J., and Steere and Brpoke, JJ., dissenting.
    Error to Wayne; Mandell, J.
    Submitted November 7, 1911.
    (Docket No. 56.)
    Decided May 3, 1912.
    Rehearing denied July 22, 1912.
    Assumpsit by William E. Roney against Daniel J. Healy for services rendered as defendant’s broker in procuring a loan. A judgment for plaintiff for less than the amount claimed is reviewed by him on error.
    Affirmed.

      May & Dingeman and Daniel P. Cassidy, for appellant.
    Merriam„ Yerkes & Simons and George A. Kelly, for appellee.
   Ostrander, J.

The action is assumpsit; plaintiff having declared upon the common counts and filed a bill of particulars of his demand, reading:

“ To the reasonable value of services rendered by plaintiff to defendant in procuring a loan for defendant of $135,000 ...............$5,000.”

When the cause came on to be tried, plaintiff was sworn ’ as a witness in his own behalf, and while giving his testimony his counsel asked counsel for the defendant for a certain bill, rendered by plaintiff to defendant, and was informed:

“ We have not it. I think Mr. Hally has those papers; I understand he has.”

Thereupon counsel for plaintiff said:

“Mr. Hally is out of town; but Mr. Hally was subpoenaed by us Saturday, and we knew of no reason why he should not be here until yesterday afternoon at 5 o’clock, and he called me up to my house, and stated that he overlooked the fact, when the papers were served upon him, that he had to be in the Supreme Court today, but he was going to telegraph to Judge Murphy, the presiding judge, as to that fact. So I said I would make that fact known to the court, and while I did not think we needed him until the rebuttal in any event, but I did not believe there will be any question but what Mr. Healy will admit the copy of the paper.”

So far as the record discloses, this was the first intimation the trial judge had that Mr. Hally was subpoenaed, or was expected to be called as a witness for either party; and when the foregoing statement was made by counsel it was not intimated that the trial should be postponed because of the absence of Mr. Hally, or that it made any material difference to plaintiff whether Mr. Hally attended as a witness or not; and it should be also further stated that it was not until defendant rested his case that counsel for plaintiff again called the attention of the court to the matter of Mr. Hally’s absence in the manner indicated in the opinion of Mr. Justice Moore. It was then for the first time there was any statement or discussion of the testimony which it was expected Mr. Hally would give, if he were present. The judge was not advised concerning the time when Mr. Hally could be produced in court, and no continuance or postponement to any particular time appears to have been asked for by counsel. The statement in the opinion of Mr. Justice Moore, that while at Lansing Mr. Hally “wired the Wayne circuit court that he had been regularly subpoenaed in the case at bar, and would return to Detroit on October 12, 1910,” is misleading. From it the inference might be drawn that the trial judge was informed that Mr. Hally would return, or supposed that he would return, to Detroit, so that he might give his testimony on October 12th. But the trial judge was not the presiding judge; and it does not appear that the trial judge knew anything about when Mr. Hally was expected to return to Detroit.

Let it be assumed that the trial judge was properly moved to postpone or continue the case for some time; that he made a ruling upon the motion; and that plaintiff has a proper exception thereto. Still it does not appear that the ruling was wrong when it was made. The court was called upon to exercise a sound discretion; in view of the facts which were disclosed, I think he made a proper ruling, and, if the ruling which was made was proper when it was made, I do not understand that it can have grown into reversible error by reason of the refusal to grant a new trial. It was a ruling reviewable on error (Geddis v. Wayne Circuit Judge, 151 Mich. 122 [114 N. W. 874]), and unless there was a clear abuse of discretion, the ruling of the trial court must stand. McNaughton v. Evert, 116 Mich. 141 (74 N. W. 486).

Considering upon their merits the application to postpone and the refusal to grant a new trial, I think the court committed no error in refusing the postponement and in refusing the new trial, because it was not then, and is not now, made to appear that Mr. Hally would or could give any testimony concerning a material disputed issue of fact. I shall not attempt to set out in this opinion the portions of the record which lead me to this conclusion. It is, in my judgment, sufficient to say that the employment of the plaintiff by the defendant as a broker to procure a loan of money upon the security offered is, upon this record, an undisputed fact. It is undisputed that plaintiff performed services in that behalf. Indeed, both facts are admitted, which dispenses with the necessity for any proof. It is for the reasonable value of services so rendered that plaintiff seeks to recover, and concerning which he took the opinion of a jury. The extent and quality of the services so performed are matters about which Mr. Hally is not informed, as his affidavit discloses. That plaintiff was greatly disappointed in the verdict is not a reason for permitting him to take the opinion of another jury.

The circuit judge was not in error, in my opinion, in submitting to the jury the question whether, by the agreement of the parties, plaintiff was to be paid for securing a loan of $60,000, the sum actually lent to and received by defendant, or for $25,000, on the ground that $35,000 of the $60,000 was used to pay a mortgage upon the property offered as security. Unless there was an agreement to the contrary, plaintiff should have been paid for the money he secured, regardless of the use to which defendant devoted it.

The judgment should be affirmed.

McAlvay, Blair, Stone, and Bird, JJ., concurred with Ostrander, J.

Moore, C. J.

(dissenting). Plaintiff is in the real estate business in the city of Detroit. Defendant conducts a store on Woodward avenue in Detroit. He had a 99-year lease of property on Woodward avenue, dated January 1, 1909, which required that the erection of a building must be commenced within two years from the date thereof.

It is the claim of the plaintiff that he was employed by defendant to secure for him a loan of sufficient money to enable him to erect a very expensive building on the Woodward avenue property. Mr. Healy was the owner of some valuable real estate on Broadway, in Detroit, upon which there was a mortgage. It is the claim of the plaintiff that he secured for defendant $60,000 upon the Broadway property and $75,000 upon the Woodward avenue property, including the lease. This suit was brought to recover for the services rendered by the plaintiff, which he claims entitled him to a judgment for upwards of $3,000. He obtained a verdict and judgment for $800. He has brought the case here by writ of error.

The record discloses that the parties were brought together in the first instance by Mr. Hally, an attorney at law, living in Detroit. We have already stated in a general way the claim of the plaintiff. It should be stated further that he claimed he was employed as a broker to procure money; that he was the procuring cause of the loans, and should be paid as a broker. The claim of defendant may be gathered from the contention of his counsel in the brief.

As to the loan upon the Broadway property, counsel say:

“ The next proposition was to obtain a loan on the two properties separately. Roney said he would take the matter up with the banks. He did not say that he went to the Detroit Savings Bank; and defendant had spoken to one of the directors some time before in regard to a loan, and was informed on the 16th or 18th of January that the bank passed favorably on the proposition. Defendant procured this loan himself.”

As to the loan on the Woodward avenue property and lease, counsel say:

“ Defendant then went to the People’s State Bank with Mr. Roney and had a talk with Mr. O’Brien, vice president of the bank, and secured a loan of $75,000 on the building and 99-year lease of the Woodward avenue property ; and Mr. O’Brien testified that he would not have made the loan, if Mr. Healy had not come in and giyen him the necessary information. Defendant testified that he himself did most of the work of getting this loan.”

We again quote from the brief:

“It is not denied by defendant that services were rendered by plaintiff in this matter; but it is claimed that such service was not worth anything like the charge made by plaintiff; that he was not the procuring cause of the loans; that he did not furnish the clients from whom the loans were procured; and that, in fact, he acted only as a go-between in the entire matter.”

The testimony of the parties was in sharp conflict. The plaintiff gave testimony tending to support his claim. The defendant denied some of his testimony. We quote some of the testimony of defendant:

“Q. You stated on your direct examination that you had gotten this loan at the Detroit Savings Bank ?
“A. Yes, sir.
“Q. You had gotten it upon this statement ?
‘‘A. I got the loan from the Detroit Savings Bank, I feel confident, because of the way Mr. Delamater treated me; and I put it up to him entirely myself, and he told me — I put it up to Mr. Delamater, the statement of what I wanted. I wanted a loan on the property on Broadway.
“Q. You stated in your direct examination that the procuring of the loan from the Detroit Savings Bank was upon your own statement ?
“A. No; I say I procured the loan from the Detroit Savings Bank from my own personal address to the president of the bank.
“Q. You state now that the $60,000 was procured entirely upon your own efforts at the Detroit Savings Bank?
“A. Yes, sir.
“Q. So that, as far as that work is concerned, you do not consider that you owe Mr. Roney anything ?
“A. I would not say that.
“Q. If he did not procure the loan for you, you do not owe him anything.
“A. No legal obligation.
“Q. No legal obligation to pay for anything in procuring the $60,000 mentioned ? (Objected to.)
The Court: I will exclude it as being incompetent.
Mr. May: Note an exception. * * *
“Q. You knew after Mr. Roney had been working on it for a month ?
“A. And had succeeded in doing nothing and jeopardized my proposition, and nearly ruined me, jeopardized my proposition—
“Q. Explain how.
“A. Because he had no standing in the community, and I was told that he had no standing, and he jeopardized my proposition; and I was willing to be fair in the matter.
“Q. Had no standing in the community? * * *
“Q. You owe him nothing in connection with the procurement of the $60,000 loan in any event ?
“The Court: That question has been asked and answered, and I will exclude it.
“Q. We come to the $75,000 loan; you don’t owe him anything for his services in that direction ?
“A. Certainly not.
“Q. Those are the only two transactions that Mr. Roney has had any dealings with in connection with your property ?
“A. He acted as messenger for me, I would call it; he went along with me, and I cannot take up any man’s time without paying something for his trouble.
“Q. You say he acted as messenger; is that the way you want to compensate him — Mr. Healy, you want to compensate him as a messenger ?
“A. No; I will not say it.
“Q. You say he acted as a messenger ?
“A. He acted as something; I don’t know what.
“Q. Did you authorize Mr. Hally to procure his services to obtain this loan for you ?
“A. No, sir.
“•Q. You discussed the question of compensation in Mr. Hally’s office after the loan had been procured ?
“A. Not after the loan had been procured.
“Q. After the work was done ?
“A. No; not after the work was done.
“Q. You have taken the position that you never authorized Mr. Hally to employ Mr. Roney?
“A. I had not authorized him to employ Mr. Roney; I authorized him to do as he pleased. I didn’t pick out any man at all.
“Q. I am not saying you picked out any man.
“A. I didn’t know Mr. Roney.
“Q. I ask you and I want you to state your position clearly to the court and jury as to whether you are repudiating the services of Mr. Roney, because you did not authorize the employment. (Objected to.)
The Court: I will exclude it. Note an exception.”

We have already stated that these parties were brought together by Mr. Hally. The record shows that service of a subpoena to attend as a witness upon the trial was served upon him October 8th. We quote from the brief of counsel, which we think is sustained by the record:

“The plaintiff subpoenaed Mr. Hally on October 8th to appear as a witness in his behalf on October 10, 1910, at which time the trial of this cause was commenced. The testimony in the case was closed on October 11th, at about 2:30 p. m. Mr. Hally, as corporation counsel of the city of Detroit, was obliged to be in the Supreme Court at Lansing on October 10th, to argue the case of the People v. C. H. Little & Co., and on October 11th to argue the case of J. L. Hudson Co. v. Cameron Currie, and owing to this fact was unable to respond to the subpoena. While at Lansing, he wired the Wayne circuit court that he had been regularly subpoenaed in the case at bar, and would return to Detroit on October 12, 1910.”

We now quote from the record:

“Mr. May: I don’t think the matter should be submitted in justice to my client; the matter should be submitted without the testimony of Mr. Hally.
The Court: I see the point you desire to offer testimony on. I will say this: There is, on the question of consideration, read into a contract, even though it is not stated, that if the services are rendered on one part and accepted on the other there is read into the contract that the services should be paid for at the rate of what such services are reasonably worth, and, if Mr. Hally were to come here and state on behalf of the plaintiff in this case that he hired the plaintiff, it would not make any difference ; so I think it immaterial. According to your theory, Mr. Healy accepted the services of the plaintiff, and if he accepted them it would not make any difference whether there was a contract of hire or not; so I cannot see that the testimony is material. I shall charge the jury that, and that obviates the necessity of calling Mr. Hally.
Mr. May: All I want your honor to tell me is what you want me to do; but I want to submit this proposition. It has been testified by Mr. Healy that he did not authorize Mr. Hally to employ Mr. Roney. All he said was he didn’t know Mr. Roney; and all he told him was to go ahead and do what he thought best, and, if he thought best to secure the services of Mr. Roney, that is all that was necessary.
Mr. May: It bears upon the credibility of Mr. Healy’s testimony.
The Court: That is an immaterial matter, and, if it had a tendency to contradict it, I would exclude it, because it would not be impeachment on a material matter. I think you had better proceed.
“Mr. May: We expect to prove by Mr. Hally that the time of the conference, at the time that per cent, was discussed, was just prior to the time that the Detroit Trust Company had indicated an unwillingness to make the loan.
“The Court: They all agree to that; it was during the pendency of the negotiations with the Trust Company. You offer it, and the other side admits it.
“Mr. May: Your honor directs us to go to the jury.
“The Court: I think you had better.
“Mr. May: I take an exception.”

Later a motion for a new trial was made, based upon the record and upon affidavits, among others, the affidavit of Mr. Hally. This affidavit reads, in part, as follows:

“P. J. M. Hally, being duly sworn, deposes and says that he is corporation counsel of the city of Detroit; that on the 8th day of October, 1910, he was duly subpoenaed as a witness to give evidence in the above entitled cause on behalf of said plaintiff; and that, owing to the fact that he was called , to Lansing to argue the case of People v. C. H. Little Co., on Monday, October 10th, and the case of J. L. Hudson et al. v. Cameron Currie, on Tuesday, October 11th, before the Supreme Court, he was unable to respond to said subpoena; that while at Lansing he wired the circuit court for the county of Wayne to the effect that he had been regularly subpoenaed by the plaintiff in said cause, and that he was necessarily in Lansing to argue the cases above mentioned; and that he would return to Detroit on October 12, 1910.”
“Affiant further says that he was present and heard considerable of the negotiations and conversations between the plaintiff and defendant in this cause, relative to the matters in controversy, and that if placed upon the witness stand he would have testified as follows:
“ ‘That Daniel J. Healy was, during the latter part of the year 1909 and the early part of the year 1910, a client of this affiant, and the said Healy consulted this affiant with reference to procuring a loan, for the purpose of erecting a building on the east side of Woodward avenue, between Grand River avenue and John R. Street, upon the property then held by the said Healy under a 99-year lease; that this affiant investigated said matter and made some efforts towards procuring said loan, but found that the proposition would necessitate the giving of more time to the matter than this affiant could give, that this affiant explained to the said Healy his inability to give the proper attention to the matter, and advised the said Healy to procure the services of a broker experienced in matters of that character, and thereupon recommended William E. Roney, and was authorized by said Healy to employ the said Roney as a broker who would likely be able to procure the necessary funds for the said enterprise. This affiant further says that he employed said Roney, as requested by the said Healy, and arranged a conference between the said Healy and said Roney, and at which conference the employment of, said Roney by this affiant was duly confirmed and approved by said Healy. * * * ’
“This affiant further says that it was understood between the said Roney, Healy, and this affiant that the said Roney had absolute charge of the matter of procuring said loan, and that this affiant, during the various conferences referred to, was never informed or given to understand by the said Healy that the said Roney was acting in any other capacity than that of a broker solely in charge of procuring said loan, and not in the capacity of an assistant or helper to this affiant or said Healy. * * * And in the presence of Healy, Roney, and this affiant, the question of the said Roney’s compensation was broached; that said Roney then stated to the said Healy that his compensation would be at the rate of li per cent, upon the total sum secured; that, in addition to said compensation, said Roney stated at said conference that he was making said rate with the understanding that he was to be given the fire insurance business of the said Healy; that at said conference the fees and expenses of the Detroit Trust Company were also discussed and explained by the said Roney to the said Healy. * * *
“ This affiant further says that upon a certain occasion, the exact date this affiant cannot now recall, the said Roney came to the office of this affiant, while this affiant was in conference with said Healy in connection with other matters relating to the said building project, and called this affiant and said Healy from the inner office, and stated substantially:
“‘Well, I have secured you $60,000 from the Detroit Savings Bank on the Broadway property; and I am now going to apply to the Wayne County Savings Bank for the balance.’
“That the balance needed was then discussed, and seventy or seventy-five thousand dollars was deemed sufficient by both this affiant and said Healy to successfully carry through such project.
“ This affiant further says that from an intimate knowledge of the transaction that said Roney conceived and formulated the various plans by which the several financial institutions in the city were solicited with a view to making said loan, and further says, upon information and belief, that it was due to the efforts of said Roney, as a broker, that both the loan of $75,000 on the Woodward avenue property and the loan of $60,000 on the Broadway property were procured.”

The motion for a new trial was overruled.

This brings us to the question of whether the court erred in refusing to continue the case from half past 2 o’clock, October 11th, until the 12th of October, when Mr. Hally might have testified as a witness. This court very properly hesitates to interfere with the discretion of a trial judge, exercised in the conduct of a trial, and will do so only when.it is evident an injustice has been done.

In Leach v. Railway, 125 Mich. 373 (84 N. W. 316), this court declined to interfere, where the trial court refused to delay the trial from Thursday until the following Tuesday, to enable the defendant to procure a witness. The case differs greatly from the instant case. There the witness had not been subpoenaed; here he had been. There the delay asked was for several days; here it was for only a short time. Mr. Hally’s affidavit cannot be harmonized with that part of the testimony of defendant which we have quoted.

The instant case shows, briefly stated, that plaintiff had caused a witness to be regularly served with a subpoena. The witness was an officer of the circuit court and of the Supreme Court. His duties in the last-named court necessitated his temporary absence from the circuit court. This fact was called to the attention of the presiding judge by the witness himself. Counsel for plaintiff asked for a delay from Tuesday, at about half past 2 o’clock in the afternoon, until the following morning, to procure the attendance of the witness. The important testimony in the case was given by the parties thereto. It was in sharp conflict. The testimony of Mr. Hally was material. It probably would have been decisive in favor of the party which it tended to sustain.' Whether the claim of the plaintiff was urged as one upon the contract, or whether it be regarded as under the quantum meruit count, the testimony was material, because the parties were in disagreement about the extent and value of the services rendered. It is not the attorney who is affected by the verdict, but the plaintiff, who in good faith did apparently all he could to procure the attendance of the witness. We are satisfied that in not being allowed to have the testimony of Mr. Hally he has been deprived of a substantial right without fault on his part, and that this is error.

Error is assigned upon the charge of the court. We shall spend little time with this feature of the case. In the colloquy between the judge and counsel, which we have quoted, there is a clear intimation of the view the judge had of the law of the case; but counsel preferred no written requests to charge, and we do not find from the record that the attention of the court was called to counsel’s view of the law applicable to the case. The fault of the charge, if any, is largely one of omission. As there is to be a new trial for the reason already stated, we think counsel will have no reason to complain upon the second trial, if, by proper written requests to charge, he will call the attention of the trial judge to the principles of law applicable to the case.

The question is raised as to whether plaintiff is entitled to a commission for the entire $60,000, loaned upon the Broadway property. Defendant insists the amount of the mortgage upon that property should be deducted. The record is clear that plaintiff was employed solely for the purpose of procuring sufficient .money to enable the defendant to construct the "Woodward avenue building. The holder of the mortgage on the Broadway property was not asking for its payment. The margin above the mortgage on this property and defendant’s interest in the Woodward avenue property and lease were the securities plaintiff, acting for defendant, could offer to those proposing to make loans. The payment of the prior mortgage was a necessary incident to procuring any money on the Broadway property, to go into the building on Woodward avenue. We think the compensation of the plaintiff should, be confined to the money which was raised to enable defendant to construct the Woodward avenue building, and should not include that used to pay the mortgage on the Broadway property.

Judgment should be reversed, and a new trial ordered.

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


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    ROHRABACHER v. WALSH.
    1. Judgment — Collateral Attack — Attorney and Client.
    A judgment is not subject to collateral attack because an attorney who appeared for a defendant served with process had no authority to act.
    2. Bill in Aid of Execution — Limitations.
    Although under 3 Comp. Laws, § 9167, a bill in aid of an execution must be filed within a year after levy, a bill which may be treated as a creditor’s bill is not barred by the act.
    3. Pleading — Equity—Answer—Statute of Limitations.
    It was a sufficient claim in the answer that suit was barred by the statute to aver that “on account of the time which has elapsed since the procuring of said judgments, the issuing of said execution and levying on said real estate, the complainants are debarred and estopped from pursuing this remedy,” when the dates were set up in complainant’s bill..
    4. Fraudulent Conveyances — Deeds.
    Where defendant and his wife, several years before he became indebted or insolvent, conveyed by warranty deed to their son, who afterwards lost the instrument, real property which was later deeded by a separate instrument to the grantee to whom it was in the meantime assessed and by whom it was cared for, cropped, and who paid the taxes, no fraud was made out.
    5. Creditors’ Suit — Payment into Court — Equity.
    Over money paid into court by defendant in a creditors’ suit in case complainants cared to accept the sum in full of their claim, the trial court had no jurisdiction, and the fund was properly withdrawn by defendant.
    6. Compromise and Settlement —Joint Debtors — Judgment— Part Satisfaction.
    After a compromise with several judgment debtors of their separate liability upon a judgment against them and others, who did not join in the settlement, the remaining debtors were by statute liable only for their proportionate share of the joint judgment. 3 Comp. Laws, § 10449.
    7. Judgment — Joint Liability — Bills and Notes.
    A judgment in an action at law upon a joint and several obligation becomes joint against all the defendants.

      Appeal from Osceola; Withey, J.
    Submitted December 14, 1911.
    (Docket No. 54.)
    Decided May 3, 1912.
    Bill by Andrew Rohrabacher and others against Mike Walsh and others for a decree in aid of execution, discovery of assets, and other relief as judgment creditors. From a decree for complainants, both parties appeal.
    Modified and affirmed.

      Lyon & Moinet, for complainants.

      B. N. Savidge, for defendants.
   Stone, J.

This is a combined bill in aid of execution and creditor’s bill. On June 21, 1904, defendant Mike Walsh and 15 others executed and delivered three promissory notes payable to the order of Crawford & Hunt; one of the notes being for $600, and the other two being for $700 each. Complainants, as the Union Bank of Laingsburg, Mich., became the purchasers and owners of these three notes for value in due course before maturity and without notice. The $600 note became due September 1, 1906, payment was refused, and complainants as plaintiffs brought suit thereon in the Osceola circuit court. They recovered judgment against all of the makers on December 10, 1907, for $692.65 damages, and costs afterwards taxed at $78. On April 1, 1908, an execution in the usual form was issued on said judgment to the sheriff of said county, returnable May 1, 1908, and was returned nulla bona, and filed May 20, 1908. On the last-named date an alias execution was issued on such judgment to the sheriff, returnable July 25, 1908. On May 29th the sheriff made a levy on certain real estate, and recorded the certificate of such levy on June 4th, and on July 17th made a further levy on real estate, and recorded the certificate thereof on the same date. The two $700 notes came due September 1, 1907, and September 1, 1908, respectively, payment was refused, and complainants as plaintiffs brought suit thereon in the said circuit court. They recovered judgment against all of the makers on December 19, 1908, for $1,730.36 damages, and costs afterwards taxed at $74.75. On March 27, 1909, an execution was issued in due form on such judgment to the said sheriff, returnable June 1, 1909. On April 3d a levy was made and certificate thereof recorded covering the same real estate as was levied upon on both the levies on the former judgment. These levies and certificates of levy cover and include the three pieces of real estate involved in this suit: (1) Lots 46, 49, 60, of Ardis addition to the village of Marion; (2) W. £ of the N. W. i of section 10, town 19 N., range 7 W.; and (3) W. \ of the N. W. i of section 15, town 19 N., range 7 W.

Afterwards, and on or about August 17, 1909, complainants entered into a certain written agreement with nine of the judgment defendants in both of these cases, viz.: Beckman, Bell, Richardson, French, Van Arsdale, McNorton, Hardinger, Gilmore, and Huntwork, by which those nine judgment defendants were to pay, and on November 10, 1909, did pay, $1,500, or $166.66 apiece, and in consideration for which said complainants released such paying defendants on account of said judgments, and discharged the said levies and certificates of levies so far as they touched the real estate of such paying defendants. This release is claimed to have been made under the statute. Accordingly there remained unpaid upon such judgments the damages and costs recovered in both cases, together with the interest thereon and the expenses of the levies, sheriff’s fees, etc., less said $1,500 received from the nine judgment defendants, and the bill in this case was filed to reach property to satisfy the remainder unpaid on the judgments, amounting to upwards of $1,200, or such part thereof as complainants are entitled to ask and recover. The property specially sought to be reached by this bill consists of the three descriptions of land hereinbefore mentioned, which complainants claim the right to reach, and also $200 which was paid into court in this case on behalf of the defendent Mike Walsh, which will be referred to later.

It is the claim of the complainants that upon the payment by, and the discharge of, the nine judgment defendants referred to, there remain seven undischarged judgment defendants, viz.: Mike Walsh, F. A. Slater, C. E. Bradshaw, S. C. Boyles, J. W. Lackey, A. A. Harvey, and H. Cutler. Of these seven remaining judgment defendants, Bradshaw and Harvey removed from this State before the bill in this case was filed, and hence were not made defendants herein; and the bill alleges the issuance and return of an execution unsatisfied (thereby showing that nothing could be collected from Slater, Boyles, Lackey, and Cutler). The bill also alleges specifically that nothing could be collected from them; and the two answers filed in this case allege that all of these seven remaining judgment defendants, except Mike Walsh, were and are financially irresponsible.

The title to the real estate above mentioned stands as follows: Lots 46, 49, and 60, Ardis addition to Marion.

Mike Walsh owned this property and sold it to defendant Robert H. Manning for $700 on a land contract dated April 13, 1908. Complainants seek to reach all of the interests of Mike Walsh in this land and this land contract.

W. % of N. W. J, section 10, 19-7.

Mike Walsh owned this property, and on July 26, 1906, deeded it to his wife, defendant Margaret Walsh, by warranty deed. Margaret gave their son, Thomas Walsh, a land contract covering this land, dated April 10, 1908. The bill charges that both of these transfers were without consideration and fraudulent, and made to defeat the rights of complainants against Mike Walsh.

W. \ of N. W. i, section 15,19-7.

The bill claims that Mike Walsh owned this property also, and on July 26,1906, deeded it to his wife, Margaret, by the same deed that included the land on section 10. Margaret deeded this land to their son Thomas by a deed dated November 22, 1907.

The bill also charges that both of these transfers were without consideration and fraudulent, and made to defeat the rights of complainants against Mike Walsh.

Defendants Margaret and Thomas Walsh filed a joint answer, in which they denied that the transfers from Mike to his wife, and from, his wife to their son, were fraudulent as to complainants, and they also deposited $200 with the register of the court for and in behalf of Mike Walsh to cover his pro rata share of the two judgments.

Defendant Mike Walsh filed an answer and an amended answer, in which he, too, denied that the transfers made by himself to his wife, and by his wife to their son, were fraudulent, and confirmed and adopted the $200 with the register as a tender of his pro rata share of the two judgments.

None of the other defendants appeared in the case, and the usual order pro confesso was entered against some of them, and others were covered by a stipulation and replication, so that the question of fraud referred to and several other questions to be presently stated were before the circuit court; the testimony having been taken in open court.

Complainants made their prima facie case by introducing in evidence the two judgments in question, the files and records in the two law cases, and the compromise agreement with the nine judgment defendants, the several executions, levies, and certificates of levies, and the conveyances complained of, in accordance with the provisions of section 10203, 3 Comp. Laws. They also offered further evidence in support of their contention. The defendants Mike, Margaret, and Thomas Walsh were sworn and examined as witnesses, and other testimony was given in their behalf.

The circuit judge filed a written opinion in the case in which he held, and afterwards decreed, as follows:

(a) That both judgments in question were valid against all of the defendants therein, of which holding defendant Mike Walsh complains; the other appellant defendants admitting the validity of the judgments.

(6) That complainants are entitled to reach the rights and interests of Mike Walsh in the lots in Marion and the Manning contract, and provided for so doing, of which the three appealing defendants complain.

(c) That complainants are also entitled to the land on section 10 because he found the deed from Mike to Margaret, and the land contract from Margaret to Thomas, to be in fraud of complainants, and set aside those transfers, of which also the appealing defendants complain.

(d) That complainants are not entitled to the land on section 15, of which appellant complainants complain.

(e) That complainants are not entitled to the $300 paid into court, of which complainants complain.

(/) That complainants are entitled to recover of and from defendant Mike Walsh only one-sixteenth part of each of both of said judgments, damages, costs, and interest computed from the dates of said judgments, respectively, of which holding complainants complain.

The complainants and the defendants Mike, Margaret, and Thomas Walsh have appealed to this court, and the foregoing propositions or holdings indicate in a general way the questions raised.

The defendant Mike Walsh has neither filed any brief nor appeared by counsel in this court.

(a) The first proposition to be considered is whether both judgments at the dates of the levies were valid and binding obligations against all the defendants in both causes. This question is only raised by the defendant Mike Walsh, and he files no brief in support of his claim. In the first case Mr. Savidge, solicitor for the appellant defendants Thomas and Margaret Walsh, filed notice of his appearance for the defendants, who had been served with process. On September 14, 1907, he filed a plea and notice of special defense as attorney for defendants. A perusal of the documentary evidence offered satisfies us that Mr. Savidge intended to appear for, and in fact acted as the attorney of, all the defendants. We have examined the oral testimony upon the subject, and we think that it appears by the preponderance of the evidence that it was the intention of the defendants in that suit that they should be represented by Mr. Savidge. In the second suit at law, Mr. Kinney, a regular attorney, appeared for all the defendants, so signed the pleadings, and conducted the defense. None of the parties ever asked either of these attorneys to withdraw his appearance in the cases, or either of them. The court treated the defendants as represented by counsel, and a joint judgment was entered against all of the defendants in each case in the usual form. The circuit judge found that the law judgments were against all of the defendants named in those cases.

Not only as a question of fact do we think that the defendants were represented by counsel, but, as a legal proposition, we think these judgments cannot be attacked in this collateral manner. Most certainly must this be so where the parties themselves, for whom it is claimed the attorneys had no authority to appear, have made no motion or taken any steps to have said appearances vacated. We think that the attack should have been made directly in the case by the parties in interest. See 1 Freeman on Judgments, § 128; Corbitt v. Timmerman, 95 Mich. 581 (55 N. W. 437, 35 Am. St. Rep. 586); Allured v. Voller, 112 Mich. 357 (70 N. W. 1037); Miller v. Smith, 115 Mich. 427 (73 N. W. 418, 69 Am. St. Rep. 583). See Vanfleet’s Collateral Attack, § 468, where that author uses this language:

“On principle, a judicial proceeding is never void because the proof of service is false in fact. Such proof is a necessary part of the record, and to permit its verity to be questioned collaterally overturns the very foundations of all judicial proceedings.”

(6) In considering the questions involved relating to the lots in the village of Marion, it is well to consider the objection urged by the solicitor for defendants Thomas and Margaret Walsh that the bill of complaint cannot be sustained as to the first judgment, for the reason that more than one year elapsed after the execution was levied on lands in question before the bill of complaint was filed. The first judgment, as we have already said, was entered December 10, 1907. An alias execution was issued and levied upon the property in question on May 39, 1908. Under the execution a second levy was made on the same property on July 17, 1908. The bill of complaint was filed November 34, 1909, more than a . year and four months after the levies. Under the rulings of this court in Daniel v. Palmer, 134 Mich. 335 (83 N. W. 1067), and kindred cases, that fact is fatal to these proceedings as a bill in aid of execution as to the defendants Thomas and Margaret Walsh, if it shall be found that they sufficiently raised the question by their answer. Upon that subject, in their joint answer, they use the following language :

“ Further answering, these defendants say that, on account of the time which has elapsed since the procuring of said judgments, the issuing of said execution and levying on said real estate, the complainants are debarred and estopped from pursuing this remedy.”

It is the claim of complainants’ counsel that this is not a notice of the claim now sought to be raised by these appealing defendants. Counsel concede, however, that anything in an answer in equity which will apprise the complainant that the defendant relies on the statute of limitations will be sufficient, if such facts are stated as are necessary to show that the statute is applicable. Bearing in mind that the bill and answer refer to these judgments and levies by their dates, we are constrained to hold that the allegation is sufficient to raise the question as to these two defendants who make the claim in their answer. It will be noted, however, that the defendants Thomas and Margaret Walsh are not interested in the lots in Marion; they having no interest therein. The defendants Mike Walsh and Manning are the only two defendants interested in that matter. The bill of complaint was taken as confessed by defendant Manning, and defendant Mike Walsh makes no claim of the statute of limitations in his answer, and files no brief in this court. We must hold, therefore, that the first judgment, in so far as it affects the lands in which the defendants Thomas and Margaret Walsh are concerned, cannot furnish the basis of any claim against such lands. With reference to the merits of the question, we are of the opinion that as to said village lots the bill may be treated as a creditors’ bill, and that the one-year statute does not apply, and that complainants are entitled to work out their equity as against defendant Manning as to those lots, and that the first judgment stands in force as to that parcel. We see no objection to a sale of those lots on the execution, thus reaching the legal title in Mike Walsh therein. Flynn v. Holmes, 145 Mich. 606 (108 N. W. 685, 11 L. R. A. [N. S.] 209). We think the circuit judge was justified in reaching the conclusion which he did as to that property, limited by what we have said above.

(c) We have, after perusing the record with a good deal of care, reached the same conclusion as did the circuit judge with reference to the W. of the N. W. i of section 10. This can only apply to the second judgment, for reasons already stated. The testimony of the witnesses and defendants upon the merits of the question was well characterized by the circuit judge in referring to Mike Walsh, Thomas Walsh, and Margaret Walsh that their testimony was both unsatisfactory and unconvincing, and by a clear preponderance of the evidence it appears that the transactions with reference to this land were in fraud of complainants, and tended to hinder and delay them in the collection of their debt.

(d) We are equally clear that the complainants are not entitled to recover as to the W. ■§■ of the N. W. J of section 15. A perusal of the testimony satisfies us that the circuit judge reached the correct conclusion in regard to this parcel of land. We think it is undisputed that as early as 1902, and before any of the indebtedness involved in this litigation was contracted or incurred, the defendants Mike and Margaret Walsh deeded this land to their son, Thomas Walsh, and delivered the instrument to him, and that the same became lost. Whether as a deed it was properly acknowledged may be a question, but that the transaction would operate as an executed land contract we have no doubt. From that time on the defendant Thomas Walsh took charge of that piece of land. He cropped it, managed it, and had the proceeds from it. It was, also, during all of the subsequent years, assessed to him, and he paid the taxes thereon; and we think this was sufficient notice to the world of his rights. The fact that in 1906, the old deed having been lost, the father and mother made a new deed to him, would not give complainants any rights therein.

(e) We concur with the action of the circuit judge with reference to the $200 which seems to have been paid into court by the defendants Thomas and Margaret Walsh, in connection with their answer, for the benefit of Mike Walsh, in case it should be accepted by complainants in full of their claim against said Mike Walsh. It was not paid in, in pursuance of any order of the court, or of any practice known to the profession. The court below did not recognize that it had any jurisdiction over the money, and, the same not having been accepted by complainants upon the terms specified in the answer, we think, defendants having withdrawn it, complainants are in no condition to ask relief in that matter.

(/) This brings us to the main controversy in this case, which is the construction which shall be placed upon the act entitled:

“An act to provide for settlements and compromises by partners and joint debtors, with their creditor or creditors.” Section 10449 et seq.

In this matter we are unable to agree with the circuit judge, but we think that complainants are correct in their contention. On November 10,1909, these two judgments stood as existing liabilities against the 16 judgment defendants for the damages, costs, and interest computed to that date, counsel stating the amount to be substantially $2,727.22. On that date nine of the judgment defendants, before alluded to, paid $1,500, and took their discharge under the provisions of this statute. It is provided that the act shall extend to joint debtors in the same manner as to copartners, and such debtors are authorized undoubtedly to settle or compromise and be discharged from their joint indebtedness in the same manner as co-partners. The effect of such settlement is, we think, covered fully by the statute itself, as follows:

“Such settlement or compromise shall be a full and complete discharge, both in law and in equity, to the debtor or debtors making such settlement or compromise, and to such debtor or debtors only, of and from all and every liability to the creditor or creditors with whom the same is made or incurred, by reason of his or their connection with such firm or copartnership; provided, however, that in case of such settlement or compromise the copartner or copartners who are not parties to the same shall be discharged from all liability to the creditor or creditors except for their joint ratable portion of such co-partnership debt.”

We think that the meaning of this section of the statute is plain and unequivocal as applied to this case. On November 10, 1909, prior to the settlement and compromise referred to, each of the judgment debtors stood liable to pay the entire amount of these two judgments, costs, and interest computed to that date, subject only to the proviso that the judgment plaintiffs could not collect the debt or any part thereof twice. If each judgment defendant had on that date paid his ratable portion of the two judgments, interest, and costs, he would have paid a one-sixteenth part of said $2,727.22, or $170.45. If the nine who paid the $1,500 had paid their joint ratable portion of this judgment, costs, and interest, they would have paid nine times one ratable portion, or nine times $170.45, being $1,534.05. Instead of paying their joint ratable portion, these nine defendants paid, as stated, $1,500, or $166.66 apiece, instead of $170.45 apiece, a difference of $34.05.

As to the remaining seven judgment defendants, after the payment of this $1,500 by the nine, the statute provides that they stood liable for their joint ratable portion of the entire debt. If each of these seven had then and there paid his ratable portion of the two judgments, costs, and interest computed to that date, he would have had to pay the sum of $170.45, as we have already stated. Accordingly, the joint ratable portion of these seven nonpaying judgment defendants was seven times $170.45, or $1,193.15, and to ascertain their joint ratable portion at any subsequent time a computation of interest only is necessary.

While the judgment plaintiffs had the right to collect the entire amount of both judgments, costs, and interest prior to the time of the compromise settlement from any one of the judgment debtors, after that settlement, they had the right to collect the remaining unpaid portion of these judgments, costs, and interest from the defendant Mike Walsh, or any other one of the judgment debtors who had not entered into the settlement and compromise agreement, provided, however, that the total amount that could be so collected should not exceed the joint ratable portion of the seven nonjoining judgment defendants of the whole debt as we have just pointed out. We are not concerned here as to the matter of contribution between the defendant Mike Walsh and other joint debtors. What we have said here in this connection must be qualified by what we have already said as to the right to enforce the first judgment only against the village lots aforesaid. In other words, complainants can look only to the amount due on the second judgment in dealing with the land on section 10.

The point is urged by counsel for defendants Thomas and Margaret Walsh that, the notes having been joint and several, the judgments would be the same. We do not understand that to be the rule in this State. We think the notes were merged in the judgments, and that the judgments were joint as to all the defendants therein.

A decree may be prepared in accordance with the views here expressed, awarding costs of the court below to the complainants, as provided in the decree of the circuit judge. We think there should be no recovery of costs in this court by either party, except that the appealing defendants should share the cost of the transcript of the record and the printing thereof with complainants.

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


author: Blair, J. McAlvat, J.

text:
    HABITZ v. WABASH RAILROAD CO.
    1. Master and Servant — Evidence.
    Upon an examination of the entire record, a finding of the jury that decedent was run over at the plaoe where his body was discovered, is sustained as warranted by the proofs. Mc-Alvay and Brooke, JJ., dissenting.
    2. Same — Negligence of Fellow-Servant.
    Where decedent, an inspector of cars, was run over while he was in the performance of his duties, and it appeared that the foreman of inspectors, who was charged with the duty of seeing that the other inspectors were out of the way before starting the train, knew that decedent was ordered and expected to assist in the inspection, supposed he was on the opposite side of the train, and took no steps to ascertain that decedent was out of danger when the foreman by signal started the train, there was evidence of the foreman’s negligence.
    3. Same — Statutes—Survival Act.
    Act No. 104, Pub. Acts 1909, abolishing the fellow-servant rule as to common carrier railroad companies, did not change or repeal the survival act or prevent recovery thereunder for the negligent killing of a servant.

      4. Appeal and Error — Saving Questions for Review — Exceptions.
    A mere exception to alleged improper argument, without objecting or asking for a ruling on the matter, is insufficient to raise the point on error.
    Error to Wayne; Codd, J.
    Submitted January 9, 1912.
    (Docket No. 13.)
    Decided May 3, 1912.
    Case by Anna Habitz, as administratrix of the estate of Ferdinand Habitz, deceased, against the Wabash Railroad Company for the negligent killing of decedent. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Rufus &. Lathrop and Alexander L. Smith, for appellant.

      Dohany & Dohany, for appellee.
   Blair, J.

The action below was brought by Anna Habitz, as administratrix of her husband, Ferdinand Habitz, against the defendant company to recover damages for injuries received by deceased while working in the railway yard of defendant near Detroit, known as the Oakwood yards, on the 4th day of August, 191Ó, which resulted in his death a few days later. The action is brought under Act No. 104 of the Public Acts of 1909.

Deceased was an inspector in the employ of defendant. It was part of his duty to assist in inspecting outbound freight trains to see that the air brakes were working properly, the connections properly made, etc. There were three men employed in this work at the time of the accident — the deceased, his brother, Adolph Habitz, and August Wichman. Wichman was the foreman of the inspectors. The accident occurred in the early morning of August 4th. There was no eyewitness of the accident.

The declaration, after setting forth at some length the duties of defendant to decedent, states the cause of action as follows:

“By reason whereof, on the said 4th day of August, A. D. 1910, while plaintiff’s intestate was engaged as an oiler oiling a car in defendant’s yards, and while he was in the exercise of due care and caution and free from negligence on his part, and while he had been in defendant’s employ less than 20 hours, and while the defendant was guilty of neglect, as above set forth, a certain train crew, operating an engine and cars, carelessly, negligently, and recklessly caused the same to be propelled at a rapid rate of speed to and against the car which plaintiff’s intestate was engaged in oiling, without giving any warning whatsoever to him, causing a violent collision, as a result of which plaintiff’s intestate’s left foot was crushed, and he was otherwise greatly injured, causing her said intestate to suffer intense and excruciating pain, and causing his death to result on the 8th day of August thereafter.”

At the trial, however, this claim was abandoned, and the case was based on the claim that at the time he was hurt deceased was engaged in inspecting a certain outbound freight train standing on a track, known as No. 1 track; and that while so engaged the train was started on a signal given by Wichman, the foreman, who was careless in not assuring himself that Habitz was not under or between the cars. And it was on this theory that the case was submitted to the jury. Plaintiff recovered verdict and judgment for $6,000.

Defendant asks for a reversal of the judgment upon the following grounds:

“ (1) The evidence does not warrant the verdict. This for the reasons: (a) There is no evidence that deceased was run over at the spot where he was found. On the contrary, the undisputed evidence shows that he was hurt at another place entirely. (6) There is no evidence fairly tending to charge Wichman with negligence, (c) There is a complete variance between the declaration and the proofs.
“ (2) The court erred in instructing the jury on the measure of damages, as requested by the plaintiff.
“(3) During his closing argument to the jury, Mr. Dohany made the following statement:
*' ‘Mr. Dohany: They know that no trains moved on track 6 that night. They have the records and the train crew, who know whether the trains came in here; and they have the records to show that trains come and are moved on different tracks, and if trains were moved on track 6 that night between 9 o’clock and 4 o’clock. With all of their resources, they are able to produce testimony to refute the testimony that we have given tending to show that no trains were moved on that track that night.’ ”

(a) The testimony on behalf of plaintiff tends to show that, a half hour or so before daylight on August 4th, the deceased, Ferdinand, came to the foreman’s-shanty after the crew had inspected the Buffalo train, and inquired what they were to do next, to which the foreman replied that they would eat their lunch, and then all three-go out and inspect a freight train of some 80 cars standing on No. 1 track, which was the track immediately north of the passenger track; that Ferdinand then went out, taking his lantern and an air hose, ostensibly to eat his lunch in the oilhouse; that some 10 or 15 minutes later the foreman and Adolph went out to inspect the train;, that it was getting daylight when they started, and they looked around for Ferdinand, but did not see him; that-the foreman said he thought he was on the south side of the train, and he and Adolph went down the north side, the brakeman walking along ahead of them on the same side; that it was customary to inspect both sides of the train; that it took about 25 minutes to make the inspection, and they did not,see Ferdinand during that time; that when they got to the caboose Adolph—

“Looked over and asked him if he saw Ferdinand, and he said, ‘No.’ He said he thought he was on the other side, and when we got out to the end I told Wichman I did not see Ferdinand. I said-, ‘ I cannot see anybody,’ and he gave the high-ball, and the train pulled out. * * * After we got in the shanty, we started out to look for Ferdinand. I found him. He was between No. 1 and the passenger track. No. 1 is the track upon which the switch local was standing. * * * When I first saw my brother, he was lying down with his head to the- passenger track, to the south. His feet were to the north, to No. 1 track. I saw him lying there and pulled him back, so that his body was between the tracks, so I thought he would not get hurt any more.”

The foreman testified:

“Q. What did you call the men who were working under you ?
“A. My partner is the inspector, and the other we called — the one that got hurt was the oiler.
“Q. Both had to look over the air hose ?
“A. Yes.
“Q. Before you let the train go, whose business is it to see that the oiler and inspector are out of the way ?
“A. My business.”

The foreman did not go over on the south side of the train at all before giving the signal. The point where Ferdinand lay was 25 or 30 car lengths east of the foreman’s shanty, and a freight car is from 34 to 45 feet in length. The defendant put in testimony tending to show that soon after the accident Ferdinand’s lantern and air hose were found, by an employé named Puhchili, some six car lengths east of the shanty, between tracks 6 and 7, some 80 or 90 feet north of track No. 1. The man who found the lantern and hose did not notice any blood or other marks,at the place. The witness Miller testified that he saw Puhchili pick up the lantern and hose, and that near the spot there was a small spot of blood—

“On the corner of the rail, the outside corner. The spot of blood was not big. It was about two inches long, run down the edge of the rail. It was about half an inch wide. That is all the blood that I saw.”

Another witness testified to having his attention called to the blood spot by Miller, and he testified that there was vomit there.

The testimony of Miller and Puhchili is in serious conflict. Miller testified:

“Q. Did you see him pick it up?
“A., Yes, sir.
‘■'Q. Who picked up the lantern ?
“A. Steve did. I saw him pick it up and take the things to the office. I was about six or seven feet from him. I came around the end of the car; he could not see me before. I came around the car, and he said, 5 Just come here once.’ ”

Puhchili testified:

“Q. When you found this lantern and air hose, did you do anything or call anybody ?
“A. No, sir; I did not call anybody.
“Q. Did you see anybody else there ?
“A. Yes; Gus Miller was with me, carrying this lantern into the office. * * * I was going down on the south side of the train and came around to the air hose. Gus Miller was not with me when I found it. He was in the middle from my place to the office. He was between me and the office, and about the middle. I picked up the lantern and air hose and started for the shanty. Had gone two or three car lengths before I met Miller. Miller was pretty near to the switch point. He was talking to some one up there. I picked up the lantern and hose about three car lengths east of where I met Miller. I met him about the end of the train, by the switch point.”

It is apparent that if Ferdinand was injured at the point where his lantern and hose were found, he must have dragged himself seven or eight hundred feet east therefrom to the place where he was found, a theory which the jury would be warranted in finding less probable than that, in the growing daylight, he did not need the lantern and left it and the hose, in order to hurry through with the belated performance of his duty. There was no error in submitting the facts to the jury in this regard.

(&) Wichman knew that Ferdinand understood that he was to go and help inspect the train as soon as lunch was finished, and that he had no other business on hand except that. He supposed that he was on the south side of the train when' they started their inspection, and the natural expectation would be that, if not there, then he soon would be, in compliance with his orders; and whether he was justified in starting the train, without taking any steps to ascertain where Ferdinand was, we think was a question for the jury.

(c) This point was not made in the lower court, and therefore cannot be considered here. Hayes v. Railroad Co., 163 Mich. 174 (128 N. W. 217, 31 L. R. A. [N. S.] 229).

The sixth assignment of error challenges the correctness of the following portion of the charge:

“ Now, gentlemen of the jury, if you are satisfied by a preponderance of evidence that the defendant company was negligent in this regard, and that this injury was caused by the negligence of the defendant and its agent, you will render a verdict for damages, all damages resulting from the injury and death of the deceased. It is your duty to render the verdict which will comprise the reasonable amount for any pain and suffering endured from the time of the injury through his death, and, in addition, a reasonable amount for all sums that he would probably have earned during the years that he would probably have lived but for the injury, less such amount as he would, from the testimony you have heard, have spent upon himself for his own support. Your verdict will be for the sum of these two. Estimate the worth of his probable earnings at 5 per cent., and the sum of these for the several years that he would probably have lived will be the amount of your verdict for the loss alone.”

Defendant’s contention is as follows:

“The suit was brought under Act 104 of the Public Acts of 1909, entitled * An act to prescribe the liability of common carrier railroad companies to their employés. It provides:
“‘Section 1. Every common oarrier railroad oompany in this State shall be liable to any of its employés, or, in case of his death, to his personal representatives for the benefit of his widow and children, if any; if none, then for his parents; if none, then for his next of kin, for all damages which may result from the negligence of any such railroad company or from the negligence of any of its officers, agents or employés, or by reason of any defect or insufficiency due to the negligence of any such common oarrier or railroad oompany in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, coal dooks or other equipment.’
“But for this act there is no liability, as the only negligence claimed is that of a fellow-servant. And the act prescribes liability, ‘in case of death,’ to his personal representative, ‘for the benefit of his widow and children,’ for ‘all damages which may result,’ etc. We respectfully submit that this act, which is the sole foundation of this action, does not contemplate a recovery for any pain or suffering endured by deceased before his death, nor for his probable future earnings, measured as under the survival act. The measure of recovery should be pecuniary loss of the beneficiaries.”

The declaration alleges—

“ That, by reason of his death, and the statutes in such case made and provided (section 10117, 3 Comp. Laws, and Act No. 104, Pub. Acts 1909), an action has accrued to this plaintiff, as his personal representative, to recover from the defendant the full value of damages sustained by said intestate, to wit,” etc.

Act No. 104 of 1909 is entitled “An act to prescribe the liability of common carrier railroad companies to their employés.” Section 1, above quoted, makes the companies liable “for all damages” resulting from their negligence. Section 6 provides that “nothing in this act shall be held to limit the duty of common carrier railroad companies, or impair the rights of their employés under existing laws of the State.”

It was not the intention of the legislature, in our opinion, to repeal the survival act as to railroad employés, but to leave it in full force and effect.

The record shows that at the time the argument complained of was made no objection was made or ruling requested, but merely an exception taken. We have repeatedly held that we cannot review assignments of error based upon such a record. Bates v. Kitchel, 166 Mich. 695 (132 N. W. 459).

The judgment is affirmed.

Moore, C. J., and Steers, Stone, and Ostrander, JJ., concurred with Blair, J.

McAlvat, J.

I think the verdict of the jury is a matter of pure speculation. Scott v. Railroad Co., 169 Mich. 265 (135 N. W. 110).

Brooke, J., concurred with McAlvat, J. Bird, J., did not sit.


author: Blair, J.

text:
    HANRAHAN v. HANRAHAN.
    Divorce — Alimony—Homestead.
    Six hundred dollars in cash and a homestead worth $2,100, held by the entireties, with the household furniture, was sufficient to allow to complainant who had not aided in accumulating any of her husband’s property, which in the aggregate was not worth more than $5,675.
    Appeal from Ottawa; Padgham, J.
    Submitted January 10, 1912.
    (Docket No. 30.)
    Decided May 3, 1912.
    Bill by Marjorie Hanrahan against William A. Hanrahan for divorce. From a decree from complainant, defendant appeals.
    Modified and affirmed.

      Lillie & Osterhous, for appellant.

      George A. Farr, for appellee.
   Blair, J.

Complainant filed her bill for a divorce upon the ground of extreme cruelty, alleging specific acts of personal violence, and the use of degrading, indecent, and bitter language. Defendant filed his answer, denying the material allegations of the bill of complaint, and claiming the benefit of a cross-bill, praying for a divorce on the ground of extreme cruelty. The circuit judge filed a finding of facts in accordance with complainant’s bill, and a decree was entered granting a divorce to complainant, and awarding her as alimony the homestead and the furniture and contents thereof and $1,200 in money. Defendant appeals to this court.

There can be no doubt upon this record that, if the testimony of the complainant and her mother is accepted as reliable, she established her case. The circuit judge, who had superior advantages for determining the credibility of the witnesses, accepted the testimony of complainant and her mother as substantially true after, as he said, “a very thorough examination of the proofs.” A similar examination, having regard to the perilous condition of complainant’s health, has brought us to the same conclusion. It would serve no useful purpose to discuss the testimony upon which we ground our conclusion, and we therefore content ourselves with the announcement of the result thereof.

We are of the opinion, however, that the allowance of alimony was excessive. The court made the following finding as to defendant’s property:

“Three thousand five hundred dollars cash in the bank, $1,000 of bank stock, interest in a lot to the amount of $250, and -J interest in three lots to the amount of $175 and undivided £ interest in the homestead, $750, or the title standing in their joint names. Making a total value of his property $5,675, the title, of the homestead being held by the entireties would give her an interest of $750 in that, leaving out of account the $750 which defendant would have in the homestead, would leave his property as given by him on the stand as the sum of $4,925. I am inclined to allow complainant as permanent alimony the full fee of the homestead, and all the household furniture, together with the sum of $1,200 in cash, and defendant to pay the taxed costs of this suit including a solicitor’s fee of $80.”

The homestead property was purchased and paid for by defendant, but the deed made to him and his wife as tenants by entireties. The only testimony we have discovered as to its value is the statement of the consideration in the deed as $2,100. We find no testimony as to the aggregate value of the household furniture. The complainant brought no property to the defendant. She did not assist in accumulating any of it. She was unable to take care of the ordinary housework, and was unable to cohabit with defendant. Under the circumstances, we think the award of $1,200 in money should be reduced to $600.

Except as modified in regard to the money allowance, the decree is affirmed.

Moore, C. J., and Steere, McAlvay, Brooke, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.