text:
    QUIRK v. RAPID RAILWAY.
    1, Appeal and Error — Former Appeal — Questions Settled.
    The decision on a former review in the same case is res judicata as to all issues there decided.
    2. Same — Questions First Raised on Appeal.
    Whether the proximate cause of a pedestrian’s injury by a street car was the motorman’s negligence in failing to discover him on the track, or the catching of the wheel of plaintiff’s cart in the track, cannot be first raised on a second writ of error.
    3. Street Railroads — Injuries to Pedestrians — Contributory Negligence.
    Instructions in an action against a street-railway company for injury to a boy on the track examined and held to properly submit the issue of contributory negligence where plaintiff was injured because his cart, to which he was tied, caught in the track.
    4. Trial —Argument oe Counsel —Size of Verdiot — Curing Error.
    Argument against the jury’s endeavoring to foreclose an appeal by giving a small verdict held rendered innocuous by the . prompt action of the court.
    Error to Wayne; Hosmer, J.
    Submitted June 14, 1904.
    (Docket No. 15.)
    Decided September 13, 1904.
    Case by John Quirk, by nest friend, against the Rapid Railway, for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.
    Brennan, Donnelly. & Van De Mark and Henry L. Lyster, for appellant.

      8. E. Engle, for appellee.
   Moore, C. J.

This case has been in this court before. It is reported in 130 Mich. 654 (90 N. W. 673). A reference to the opinion then handed down will make it unnecessary to make so long a statement of the questions involved as might otherwise be required.

After the case was reversed, a new trial was had. The testimony upon the part of the plaintiff was substantially the same as on the former trial. More witnesses were sworn on the part of the defendant than at the former trial. The jury also viewed the premises where the accident occurred. A verdict and judgment were obtained by the plaintiff. The case is brought here by writ of error.

It is the claim of counsel:

(1) The record discloses no evidence of negligence on the part of the defendant which justified the case being •submitted to the jury.

(2) Plaintiff was guilty of contributory negligence as a matter of law, and the evidence conclusively shows that defendant was not guilty of any gross, willful, or subsequent negligence.

(3) Review of the cases cited in the majority opinion in Quirk v. Railway, 130 Mich. 654 (90 N. W. 673).

(4) The catching of the wheel of plaintiff’s cart in the rail was the proximate cause of his injury, and the negli.gence of the defendant, if there was any, was only the remote cause.

(5) The trial court took from the jury the question of plaintiff’s contributory negligence after entering upon the track.

(6) The improper remarks of plaintiff’s counsel in his opening and argument before the jury prejudiced the jury against defendant.

"We will endeavor to dispose of these assignments of ■error in the order in which they were presented.

As to groups 1 and 2 the same questions now in the record were in it when it was here before. The opinion written by Justice Montgomery deals with them, and must be regarded as res ad judicata as to them.

Under head 3 counsel review the majority opinion of the court, and the cases cited in support thereof, and undertake to show the court reached a •wrong conclusion. We think the opinion in that respect must be regarded as res adjudicata.

Was the catching of the wheel of the cart in the rail the proximate cause of the injury, and the negligence of the defendant, if any, the remote cause ? The case has been tried in this court once, and in the circuit court twice. Upon the last trial counsel preferred several requests to charge, but in none of them, nor in any other place in the record,' is the view now presented by counsel made to appear. It is presented now for the first time, and for that reason should not be considered by us.

Did the trial court take from the jury the question of plaintiff’s contributory negligence after entering upon the track ? Counsel’s third request reads as follows:

“ The evidence shows that the plaintiff did not look in the direction from which the train was coming immediately before entering upon the track, as it was his duty to-do, and therefore in entering and going along the track without looking in the rear and listening for an approaching car he was guilty of negligence, and, the plaintiff being guilty of negligence in the way in which he entered upon the track and proceeded along the track, according to his own testimony, he cannot recover unless he convinces you by a preponderance of the evidence that the motorman in charge of the construction train did not use reasonable efforts to stop his train after he, the motorman,, observed or could have observed that plaintiff was not going to get off the track; and if, when plaintiff entered upon the track, the motorman sounded his gong on the car, reversed his current, and applied his brakes for the purpose of stopping the car so as to avoid running over the plaintiff, then your verdict must be for the defendant; and in deciding this question you must take into consideration the fact that the plaintiff did hear the approach of the car, and got off the track himself, and was injured only because of the fact that he was tied by a rope to a little cart which became caught in the rails of the track. ”

The judge charged the jury as follows:

“lam asked to charge you that the evidence shows plaintiff did not look in the direction from which the construction train was coming immediately before entering upon the track, as it was his duty to do. Is that the testimony ?
“Mr. Engle: No, it is not, your honor.
“Mr. Brennan: No, he did not at the time — at the time he entered he did not look or listen. He says both.
The Court: The difference between the time at which they looked and the time of the entry, gentlemen of the jury, may be so inconsequential as practically to amount to looking at the very moment of entering upon the track.
“Mr. Brennan: He might have seen it, he said, if he had looked.
The Court: All I may say to you in that regard, if you find from the testimony that he might have seen the train when entering upon the track, and if you find that the train was at that distance when a prudent person would not have occupied the track as he did, then, and under those circumstances, he would be guilty of contributory negligence, and therefore, under those circumstances, in entering and going on the track he would be guilty of negligence, and, the plaintiff being guilty of negligence in the way he entered the track and proceeded along the track, he could not recover, unless he convinces you by a preponderance of evidence that the motorman in charge of the construction train did not use reasonable efforts to stop his train after he (the motorman) observed, or could have observed, the plaintiff was not going to get off the track; and if, when plaintiff entered upon the track, the motorman sounded the gong on his car, and reversed his current, and applied the brake for the purpose of stopping the car, so as to avoid running over the plaintiff, then, and under those circumstances, your verdict must be for the defendant. And in deciding this you should take into consideration the fact plaintiff did hear the approach of the car, and got off the track himself, and was injured only because of the fact that he was tied by a rope to a little cart, which became caught in the rails of the track. Well, I think, gentlemen of the jury, that that is perhaps nothing more or less than an application of what I have already said in a more general way, and I therefore give it to you. And I charge you, as requested by the defendant, as a matter of law, if plaintiff in this case was capable of understanding when he was in a position of danger, and if you find it was negligence for any one to enter upon the track in the manner in which he entered this track, and to travel along the track without taking the precautions to look around to see whether a car was coming, then you must hold this plaintiff to have been guilty of such negligence as contributed to his injury, which would preclude his recovery. I think there can be no question, gentlemen of the jury, about that. You must deal with the plaintiff here, although he was fourteen — or, I think, fifteen — at the time, as with an ordinary person.”

We do not think it can be said the question was taken from the jury, but, on the contrary, it was fully and fairly submitted to them.

Should the case be reversed because of the improper remarks of counsel ? The record discloses the following: Mr. Engle, in his argument to the jury, said:

‘£ Do not make this mistake. Jurors sometimes make this mistake. I beg you not to do that, and I know you won’t after we call your attention to it. Jurors sometimes say, ‘ Here now, they will fight this case. If we give a small one, maybe they will pay it — if we give a small verdict.’ Instead of paying it, up she goes again to the Supreme Court, and you have got to follow them, and, if we succeed there, what do we get ? Just what you allowed us on the anticipation that they would pay it — half of what we ought to have had — in order to avoid the expense. Now, we have had the expense, and now we have succeeded, and now we have not got what we ought to have. The safest way is, do your duty as jurymen, as I know you will, when it is brought to your attention here —do your duty as jurymen, and give what you think is a fair verdict. Let the rest of it go. Leave it to the management of the boy’s attorneys, friends, and the court. If you think he ought to have $20,000, give it to him; and if they want to take it up — as they probably will — if they can see any error at all, they will take it up; but if we win we have got something. If you think $15,000, give it to him. Don’t cut down on your verdict on anything of that kind, because that is beyond your power; and leave that to those under whose'management that jurisdiction comes. So far as your duty goes, it is to reach a verdict. That is all, gentlemen.
“Mr. Brennan: I wish to except to that part of the argument of Mr. Engle where he said that juries sometimes give a small verdict because they think the company will pay it, and saying that they should give a big verdict because the company will take it up no matter what the verdict is. I take an exception.
“The Court: You should have called it to the court’s attention at the time, when it might have been corrected. Yery well. Note an exception.”

. This portion of the argument was made during the temporary absence of the trial judge from the court-room. When he came to charge the jury, he instructed them as follows:

“There is one thing I wish to correct, so far it is susceptible of correction at the present time. I think yesterday, in his argument to you, Mr. Engle made certain statements with reference to a verdict — what you ought to do. Much of what Mr. Engle said was unquestionably proper. In reaching your verdict, of course, sympathy, as Mr. Brennan says, should not be allowed any consideration in your minds. So, too, gentlemen of the jury, if the plaintiff is entitled to recover, he is entitled to recover such sum as will compensate him for his injury, irrespective of any other consideration; but what they would probably do — whether the company will probably appeal to the Supreme Court, or whether they will not appeal it to the Supreme Court, and considerations of that character, which were alluded to by Mr. Engle — is a matter not for your consideration.
“Mr. Engle: That is just exactly what I said, your honor — that they should not consider that.
“The Court: Gentlemen of the jury, you are not to consider what the company will do about this matter. I am not to consider what the company will do with this matter. It is your duty and my duty to apply the law to the given facts in the case, and let the parties manage their own matters as best they may.”

We have had repeated occasion to condemn like arguments to this. See Selby v. Railway, 122 Mich. 311 (81 N. W. 106); Britton v. Railroad Co., 118 Mich. 491 (76 N. W. 1043); Oliver v. Jessup’s Estate, post, 642 (100 N. W. 900).

The trial court, however, did not allow the improper argument to go unchallenged, but instructed the jury as to what their duty was. We think the jury heeded the instruction of the judge. We are led to that conclusion from the fact that Mr. Engle’s argument was addressed to the question of damages — the amount of the verdict. No motion for a new trial on account of excessive damages was made, and it is not suggested in the briefs that, if the plaintiff was entitled to recover at all, the damages given were too large. The trial judge carefully guided the trial along the' lines indicated in the opinion when the case was here before, and we do not find any reversible error.

Judgment is affirmed.

Montgomery and Hooker, JJ., concurred. Carpenter, J., concurred in the result.

Grant, J. I regard the questions concluded by the former decision.


source: Caselaw Access Project

author: Moore, C. J.

license: Public Domain

text:
    BENDING v. AUDITOR GENERAL.
    1. Taxation — Tax Sales — Premature Decree.
    A decree for the sale of land for taxes, rendered before the expiration of the five days’ notice provided by the statute (1 Comp. Laws, § 3889), is premature and therefore void.
    3. Same — Decree—Validity—State Tax Land.
    A decree for the sale of land for taxes, rendered at a time when the land is held as State tax land under a decree and sale for the taxes of a prior year, is void.
    3. Same — Validity of Decree — Manner of Raising Question.
    Intervening petition by the aggrieved owner is the proper remedy for raising the question of the validity of a decree for the sale of land for taxes, unless the rights of third parties have intervened.
    4. Same — Rights of Third Persons.
    Where a tax sale purchaser sold the timber on the land to a third person before any steps were taken by the original owner to have the tax sale set aside, the purchaser of such timber being entitled to defend his rights in an original proceeding, the original owner was not entitled to maintain a petition in the tax-sale proceedings to set aside the decrees, but was compelled to institute an original suit for that purpose.
    6. Same — Laches.
    A landowner who pays no taxes, and takes no proceedings to protect his title for ten years, is guilty of such laches as to bar his right to question the validity of tax sales, though he petitions within eight months after he learns that certain persons had bought the land six, and the timber thereon two, years before.

      Appeal from Ontonagon; Haire, J.
    Submitted June 15, 1904.
    (Docket No. 25.)

    Decided September 13, 1904.
    Petition by Ferdinand Bending against Perry F. Powers, auditor general, Charles H. Chick, and the Diamond Match Company to set aside the decree and sales of certain lands delinquent for the taxes of 1892, 1893, and 1894. From a decree dismissing the petition, petitioner appeals.
    Affirmed.

      M. J. Sherwood, for petitioner.

      J. B. Judkins, for defendant Chick.

      Ball & Ball, for defendant Diamond Match Co.
   Moore, C. J.

The circuit judge, in disposing of this case, filed a written opinion, which contains a concise statement of the questions involved. It is as follows:

“Facts.
“ In this cause petitioner, Bending, asks the court to vacate and set aside the decrees and the sales thereunder made on certain lands in Ontonagon county for the years 1892, 1893, and 1894. The land is described as the southwest quarter of section seventeen (17), town forty-eight (48) north, of range thirty-eight (38) west. Petitioner claims that the tax decrees and sales for the above-named years were void. The Diamond Match Company and Chick were each notified by petitioner, and the former appeared specially for the purpose of objecting to the jurisdiction as against it. Chick did not appear. By permission of the court, counsel for Chick was allowed to file a brief after the hearing. He also objects to the jurisdiction in these proceedings. No testimony was offered by the Diamond Match Company or by Chick at the hearing. It is clearly undisputed that for the taxes of 1892 on the above land the decree was rendered on the 12th day of November, 1894, before the expiration of the five days from the advertised date of hearing; for the taxes of 1893 the decree was rendered on November 4, 1895, which was after said five days had elapsed, but while the land was held as State tax land for the year 1892; for the taxes of 1894 the decree was rendered on the 27th of October, 1896, and before-the said time limit had expired. Briefly stated, the decrees-for the taxes of 1892 and 1894 were prematurely rendered, and the decrees for the taxes of 1893 were rendered while the land was held as State tax land. The decree for. the taxes of 1893 was enrolled at the request of one James Everett Ball, on the 3rd day of April, 1897. The land was sold to the State for the taxes of 1892 at the tax sale held in December, 1894.- At the tax sale for taxes of 1893, held in December, 1895, defendant Chick became the purchaser for the said taxes of 1893, and also purchased from the-State list at the same time the rights of the State in the lands under this bid for the aforesaid taxes of 1892. At the tax sale in December, 1896, Chick again purchased the land for the taxes of 1894.
“ Petitioner, Bending, was the owner of the original title to the above-described land. On December 31, 1898, Chick, the tax-title purchaser, sold to the Diamond Match Company all the timber on the land, under a bill of sale-with full warranties. The deed for this sale was recorded January 19, 1899. In this deed a limited time was given to remove the timber. In May, 1902, it appears that Bending first ascertained that his land and the timber thereon had been sold as above stated. The Diamond Match Company was about this time notified by M. J_ Sherwood, petitioner’s solicitor, not to cut the timber, and that the tax titles were void. Negotiations for settlement were begun soon after this between Bending’s solicitor and the agent of the Diamond Match Company and solicitor for Chick, and were continued to the time of filing these petitions; and it appears from the affidavits of Mr. Sherwood, petitioner’s solicitor, D. J. Norton, and Ira E. Bush, filed in this cause, that in September, 1902, the agent of the company agreed not to cut the timber until there was-a settlement of the dispute as to the tax titles. These affidavits were filed by permission of the court after the hearing of this cause. Afterwards, in the winter of 1902 and 1903, the Diamond Match Company cut the timber on the-land. In January, 1903, petitioner filed this petition to-vacate the several decrees and sales. Testimony was also-introduced by petitioner, which tended to show that at the hearing in the matter of taxes for 1893 the register filled in the ‘amounts decreed against lands’ after court had adjourned, and after the decree was signed. I do not consider this important in this oause.
“ Law.
Claims of Parties. Petitioner claims that, the tax titles being void, he is entitled to have them vacated and set aside on paying taxes and interest advanced. Defendants Diamond Match Company and Chick claim that the petition should be dismissed for the reasons:
“ (1) That the court had no jurisdiction to pass on these cases in a proceeding begun by a petitioner, because the rights of the Diamond Match Company, a third party, have intervened, and that these rights cannot be litigated except in an original proceeding.
“ (2) Because, the decree having been enrolled, it cannot be opened except by bill of review.
“ (3) Because the petitioner is guilty of laches, and not entitled to relief.
“ (4) Because the decree for the taxes of 1893, entered in November, 1895, was a valid decree.
“ 1. As to the Validity of the Decrees. Upon the repeated decisions of our Supreme Court, the decrees for the taxes of 1892 and 1894 are void, because rendered prematurely. Peninsular Sav. Bank v. Ward, 118 Mich. 87, 93 (76 N. W. 161, 79 N. W. 911); McGinley v. Mining Co., 121 Mich. 88 (79 N. W. 928); and others.
“The decree for the taxes of 1893 is void, because the land had been sold for the taxes of 1892, and was then held as State tax land. Connecticut Mut. Life-Ins. Co. v. Wood, 115 Mich. 444 (74 N. W. 656); Aztec Copper Co. v. Auditor General, 128 Mich. 615 (87 N. W. 895); and others.
‘ ‘ That petition is the proper method of raising this question, see the above decisions.
‘ ‘ The decrees in the case at bar having been void for the above reasons, it is not necessary to discuss the question of the method of entering the £ amounts decreed against lands ’ by the register. It is also clear that, unless one of the first three points raised by defendants is good, it is the duty of the court to vacate the decrees.
“2. As to the Question of Jurisdiction. This brings us to the first and principal point raised and contended for by the defendants, viz., that the court has no jurisdiction to hear the petition, because the rights of a third party have intervened; that, if petitioner has any rights in the premises, he must begin by some original proceeding.
“ It is undisputed that defendant Chick made his last tax purchase of this land for the taxes of 1894 in December, 1896; that on December 31, 1899, he sold the timber on the land to the defendant Diamond Match Company; that in May, 1902, petitioner, Bending, ascertained that his land and timber were sold; that some negotiations for settlement were made in September, 1902, which failed; that the petition in this cause was filed in January, 1903 — at least eight months after the discovery of the condition of the title of Bending; that the timber was cut by the Diamond Match Company in the winter of 1902 and 1903. The last tax deed was recorded about six years, and the Diamond Match Company’s timber deed about two years, previous to the beginning of this proceeding, and Bending knew the status of affairs pertaining to the title eight months previous thereto.
“ It is clear to the court that the above undisputed facts bring this case under that class of cases where the rights of third parties have intervened, and must be decided accordingly. The Diamond Match Company was in no sense a party to the original proceeding. Chick, the auditor general, and Bending certainly were. The company merely purchased the timber, and received a deed therefor from Chick, and is clearly a third party; otherwise there can be no such thing as a third party to judicial and public sales. Bending, Chick, and the auditor general had to do with the taxes. Except that its title received from Chick may depend upon the validity of the tax proceedings, the company had nothing to do with the taxes. To contend that the company is a party to the original proceedings strikes the court as absurd. It is a third party, and must be treated as such in this cause. The Diamond Match Company, being a third party, and its rights in the premises having intervened long before the filing of the petition, the court is constrained to hold the law in conformity with the views of defendant’s counsel:
“ ‘That, where the rights of third parties have intervened, these rights cannot be litigated except in some original proceeding in which such third persons may he made parties and have an oppor-' tunity to answer and defend.’
“This was settled by an early decision in this State; viz., Crawford v. Tuller, 35 Mich. 57. See, also, Jewett v. Morris, 41 Mich. 689 (3 N. W. 186); and Spaulding v. O’Connor, 119 Mich. 45, at page 50 (77 N. W. 323). The learned counsel for petitioner urges that the case at bar is covered by the rule in Ritson v. Dodge, 33 Mich. 463, and Brewer v. Dodge, 28 Mich. 359. These cases arose in regard to the same property, and it seems that a previous decree relating to the property had been set aside on motion-as having been unwarrantably entered. In deciding -the case of Ritson v. Dodge, Chief Justice Cooley says:
“‘It is insisted on behalf of complainant that, inasmuch as he bought of Brewer while a decree existed in his favor, and after the time for appealing had expired, the complainant is such a purchaser in good faith as cannot be affected by a subsequent order setting aside the decree, at least until after he has had notice, and an opportunity to be heard. No authority is cited to this petition, and we know of none for it. The decree was found to have been entered without authority, and there is no question before us but that, as between the parties thereto, it-was properly set aside. A purchaser under a, decree must ascertain at his peril whether the decree was warranted or not.’
“Whether Chief Justice Cooley intended to make the statement in the Ritson Case a universal rule is not very clear, but, if he did, he afterwards radically changed it in the case of Crawford v. Tuller 35 Mich. 57, where he uses this language:
“ 'We held in the case oí Hill v. Robinson, decided last term (not reported), that a party attacking a judicial sale as invalid after the rights of a third party had accrued, should be required to do so by some original proceeding in which an issue could be formed and tried in the ordinary way.’
“An examination of subsequent cases shows that the rule in Crawford v. Duller has ever since been recognized as the rule in Michigan. Counsel for petitioner cites Cook v. French, 96 Mich. 525 (56 N. W. 101), as following the Ritson Case. An examination of the case of Cook v. French shows that the action was begun by bill of rewiew, and not by petition. An examination of other Michigan cases shows the rule to be, as above stated, that where a party seeks to attack a judicial decree after the rights of third parties have intervened, he must do so by an original proceeding, and not by motion or petition. The case of Crawford v. Tuller is cited with approval in Spaulding v. O'Connor, 119 Mich. 45, at page 50 (77 N. W. 323). In the case of Cook v. Hall, 123 Mich. 378, at page 385 (82 N. W. 59), Justice Grant says:
“ ‘ These petitions must be treated as ones to set aside the decrees in the original proceedings, and to permit the petitioner to attack 4,he validity of the decrees and sales; and the sole issue in those proceedings was, were tlie decrees valid ? Tbe tax law is neither designed, nor is it adapted, to the trial of the rights of parties who-have bought the products of these lands from either the original owner or the tax-title owner after the sale. If either party seeks to reach these products which have been severed from the realty and sold as personalty, he must commence by an original proceeding, in which the parties interested can be summoned into court and defend their rights. Crawford v. Tuller, 35 Mich. 57; Spaulding v. O’Connor, 119 Mich. 45 (77 N. W. 323).’
“It will be noticed that be cites both Crawford v. Tuller and Spaulding v. O'Connor.
“ The cases of the Aztec Copper Co. v. Auditor General, 128 Mich. 615 (87 N. W. 895), Thomas v. Moore, 120 Mich. 535 (79 N. W. 812), and Connecticut Mut. Life-Ins. Co. v. Wood, 115 Mich. 444 (74 N. W. 656), were all between the original parties to the tax proceedings; that is, between the owners or mortgagees of the property as petitioners and the auditor general and tax-title purchasers as defendants. Many more cases are cited by counsel on both sides, all of which have been thoroughly examined by the court, and they do not change the rule as first above stated. A further discussion seems unnecessary. Counsel for petitioner appears to think that there is no question but that the decree should be vacated as to Chick and the auditor general, even if it is not as to the Diamond Match Company. As. the court understands the decisions above quoted, the law as it now stands makes no exceptions to the parties, concerned. If the rights of third parties have intervened,, a petition will not lie. Chick has sold the timber on this land to the Diamond Match Company. He is vendor of the timber on this land. He is equally interested with, the company in this transaction. He may have equities-in the premises, unknown at this time to the court, that-will appear on the hearing of the cause, if any is had. An accounting may be necessary, wherein the payment; of the taxes, the amount of the timber, and other such, matters may require adjudication between the parties..With this view on the question of jurisdiction, it becomes unnecessary to discuss the questions of enrollment and laches.”

Counsel for petitioner insists the trial judge put a misconstruction upon the decisions of this court to which he referred in his opinion, and says:

“This is not a petition for rehearing, nor is it a bill of review strictly, but it partakes of the nature of both. In the peculiar practice under the tax law there can be no such thing as a rehearing of the auditor general’s petition, or of a review of that hearing. The tax law (1 Comp. Laws, § 3893) provides (section 70) that the decree of sale may be set aside on motion under certain circumstances, where the motion is made within one year from the time the landowner has actual notice of the sale. It does not provide for, nor does it contemplate, a rehearing of the petition. Under the interpretation of the tax law given by this court, when the decree of sale made on the auditor general’s petition is set aside, it is done on the condition that the landowner shall pay to the tax purchaser or to the State the amount of taxes, with interest and penalties, alleged to be due on the lands in the auditor general’s petition. Bending, in this case, has offered to comply with this cóndition.”

He urges that, as the decrees were taken pro confesso, the proper method to set them aside is by petition. He also says:

Cook v. Hall, 123 Mich. 378 (82 N. W. 59), presents an entirely different case from the one at bar. It does not decide that petitions will not lie where third parties have purchased relying upon the tax decree, but, if anything, impliedly holds that it will lie. That case was decided on the ground of laches in Cook. This court recognized the fact that Cook, under the tax law, might bring the petitions which he sought to bring had he moved in time. Cook attempted in his proceedings to make ‘ third ’ parties account for timber which had been severed from the land, and sold to them after being severed — sold as personal property. This the court held could not be done under the proceedings authorized by the tax law, because the law was not designed for that purpose.
“ ‘The tax law is neither designed, nor is it adapted, to the trial of the rights of parties who have bought the products of these lands from either the original owner or the tax-title owner after the sale. If either party seeks to reach these products which have been severed from the realty and sold as personalty, he must commence by an original proceeding, in which the parties interested can be summoned into court and defend their rights. * * * Some of the defendants have meanwhile become interested, not in the land itself, but in the timber out therefrom, and without any knowledge that the petitioner claimed any interest .therein. Under such circumstances equity requires that a party move with promptness to assert his rights and to protect the interests of those who may become innocent purchasers of the products which may be severed.’
“ In the case at bar there is no attempt to reach product severed from the land. At the time these petitions were brought, Bending did not know that any product had been severed from the land. No product of the land has been severed and sold as personalty. All of the defendants are interested in the land itself. No one of them is interested in the timber cut therefrom, and none of them can be heard to say that at the time the timber was cut it was without the knowledge on the part of the respondents that Bending claimed an interest therein. The Cook Case and the case at bar are nowhere similar, and it would be unconscionable here to hold that the Diamond Match Company may raise as a barrier its broken pledge not to cut the timber to estop Bending from his rights, and by the very reason of its broken pledge and the abuse of his confidence shut him out from the remedy by motion as authorized by the tax law.”

The claim of waiver of laches in this case is based upon the conversation which occurred between Mr. Sherwood, who represented the petitioner, .and Mr. Hotchkiss, who represented only the Diamond Match Company, in September, 1902‘. Conceding this conversation should operate as a waiver on the part of the Diamond Match Company for the delay in filing the petition after the conversation occurred, what shall be said of the laches of the petitioner which occurred before this conversation ? The record discloses he became the owner of this land in April, 1893. He allowed it to be sold in 1896 for the taxes of 1892. In 1897 it was sold for the taxes of 1893. In 1898 it was sold for the taxes of 1894. The Diamond Match Company paid the taxes for 1898 and the subsequent years. The taxes of 1895, 1896, and 1897, were not paid by the petitioner. We have, then, the case of a landowner who knows he ought to pay taxes upon his land every year who pays nothing thereon for 10 years. He knows, in case of nonpayment, that his lands will be returned, and that it will be the duty of the auditor general to sell them. He knows that some one is likely to buy them, and that, if no bids are received, they will be bid in by the State, and later may be sold to an individual. He permits this to be done year after year, and he now asserts that, because he filed this petition within eight months after he learned that the Diamond Match Company bought the timber upwards of two years before, and Mr. Chick bought the land six years before, he has not been guilty of laches.

We agree with the interpretation put upon the decisions of this court by the learned circuit judge. We are also of the opinion that if a taxpayer was ever guilty of such laches that he ought not to be permitted to open a decree, this record discloses such a case.

The decree is affirmed.

The other Justices concurred.


text:
    PLUCHAK v. CRAWFORD.

    Equity — Answer—Amendment to Conform to Proof.
    Pleadings and evidence in a suit for injunction examined and held proper to reject an amended answer offered after the proofs were closed setting up a prescriptive right inconsistent with the original answer.
    Appeal from Menominee; Stone, J.
    Submitted June 16, 1904.
    (Docket No. 29.)
    Decided September 13, 1904.
    Bill by Robert Pluchak against Samuel Crawford and others to restrain the flooding of complainant’s land. Prom a decree for complainant, defendants appeal.
    Affirmed.

      N. C. Spencer, for complainant.

      L. D. Eastman (E. O. Eastman, of counsel), for defendants.

       Rehearing denied May 12, 1905.

   Moore, C. J.

The complainant is the owner of a steam sawmill on Devil’s creek. The defendants are owners of 40,000,000 feet of timber, which for three years they have been cutting and floating down said stream, using two dams for that purpose. They expect, according to their claim, to continue to cut and float down the stream logs cut from this timber at the rate of 2,000,000 feet a year. It is the claim of complainant that by the use of these dams his property is flooded so that 2£ feet of water stands upon the engine room floor of his mill, that the flooding continues so long the standing water kills his timber, and that he is deprived of the use of his mill for a considerable portion of the season. The complainant filed an injunction bill. The learned trial judge, in granting a decree for complainant, filed a written opinion, which represents clearly nearly all of the questions involved. The material parts of it read as follows:

“This cause was heard upon the pleadings and proofs taken before the circuit court commissioner, except that at the hearing the testimony of Frank Donnelly, Thomas Duncan, Frank Gerue, and John Murphy was taken in open court by consent of the solicitors for the respective parties.
“I have spent a good deal of time in the examination of the pleadings and evidence in the case. I shall only refer to such parts of the pleadings as are necessary to explain my conclusions. Neither do I deem it necessary to refer to the evidence at length. The parties were first before me soon after the bill was filed upon the motion of complainant for an injunction. The pleadings were then examined, and also numerous affidavits in support of the bill and answer. I made an order at that time that an injunction issue as prayed for unless the defendants should execute and deliver to complainant a bond in the sum of $1,000, with sureties to be approved by the register of the court, conditioned that said defendants would pay and perform any decree that might be entered in the . case. The bond was given, and hence no injunction has ever been issued. Soon after, and on March 21, 1902, by virtue of a stipulation on file, complainant .amended his bill of complaint so as to include a claim for damages and an accounting for the alleged flooding of complainant’s said premises for the years 1900 and 1901, and the case has proceeded upon the claim for damages and an accounting for the three years of 1900, 1901, and 1902. The bill was filed primarily to restrain the defendants in the operation ■of certain dams in Devil’s creek, in Menominee county, to ■compel the abatement thereof, and to recover damages from defendants for the flooding of the complainant’s premises, as set forth in the bill. At the final hearing defendants’ solicitors asked leave to file an amended answer. This motion was made after the proofs had been closed. I will consider and dispose of the questions raised by counsel in the order in which they are presented in their briefs.
“1. The solicitors for the defendants raise the question and express doubt as to the jurisdiction of this court. In view of the Michigan decision cited by complainant’s solicitor in his brief, and especially in view of the two cases somewhat recently decided by this court and affirmed in the Supreme Court, there can, I think, be no serious doubt of the jurisdiction of the court. I refer to the cases of Michigan Land & Iron Co. v. Lumber Co., 109 Mich. 164 (66 N. W. 953), and Hall v. Nester, 122 Mich. 141 (80 N. W. 982). The principle that equity, having once acquired jurisdiction, will retain it, to give such full relief as will finally dispose of the controversy, is well settled in this State.
“2. As to defendants’ right to file an amended answer raising for the first time a prescriptive right in defendants to flow the complainant’s land, I am of opinion that it would be inequitable to allow the amendment to be made at this stage of the case. In defendants’ answer, which was sworn to, it is stated:
“ ‘That these defendants, nor any nor either of them, have never attempted to assume or exercise exclusive possession or control of the said Devil’s creek, or to exclude or prevent the complainant or any other person from banking, floating, and driving his or their saw logs in said creek in, through, and over the said dams of these defendants, and do not desire or intend to interfere with or exclude the complainant in any manner from the free enjoyment of said Devil’s creek for the purpose of floating and driving his saw logs down the same.’ •
“Upon the issue framed upon this answer the complainant, and in fact both parties, proceeded to take a large amount of testimony before the commissioner, continuing-for many months, and involving a good deal of expensóte complainant. The proposed amended bill (answer) is wholly inconsistent with the position taken by the defendants in their original answer. As complainant’s solicitor well says:
“ ‘ One of the all-important elements of a prescriptive right or title is the adverse holding. A holding, to be adverse, must be distinct and hostile. The defendants now undertake to claim an easement in the complainant’s land. The owner of an easement in the land of another has a right therein which is paramount to the rights of the owner of the fee. It is a right which brooks no interference from any one. It is a right which necessarily interferes with the convenience of the owner of the servient estate whenever his convenience conflicts with that of the owner of the dominant estate. In-order to gain an easement by prescription, this hostility must have been maintained for the statutory period. ’
“ This is so inconsistent with and repugnant to the position taken by defendants in their sworn answer filed in the case, and upon which the issue was framed and the testimony taken, that to permit the proposed answer to be filed would be an injustice to the complainant. It would be such an entire change of position on the part of the defendants that it would be an abuse of discretion to permit the amendment. The case of Ogden v. Moore, 95 Mich. 290 (54 N. W. 899), although relating to amendments of a bill of complaint, applies as well to the answer as to the bill. But it is urged that the amendment should be allowed so that the pleadings may conform to the proof. I have carefully examined the testimony, and have been unable to find any evidence that would support the proposed answer in this respect. Even the testimony of John Murphy, especially when viewed in connection with, his affidavit on file in the case, fails to show any such actual, continued, visible, notorious, distinct, and hostile possession as would satisfy the rule relating to the establishment of a prescriptive right. If his testimony tends to establish any possession at all, it was a possession without any claim of right, and in no way hostile. The evidence is undisputed that the Spalding Lumber Company put its drives through in such a short time that it did not materially injure the complainant. The evidence all tends to show that the damage complained of all occurred in the years 1900, 1901, and 1902. A prescriptive right can only be exercised in the manner and to the extent that it has been used during the whole prescriptive period. Chapel v. Smith, 80 Mich. 100 (45 N. W. 69); Osten v. Jerome, 93 Mich. 196 (53 N. W. 7). It is a well-established rule in this State that a pleading defective in its averments will not be amended where the case is essentially defective on the proof. Curtis v. Goodenow, 24 Mich. 18; Craig v. Bradley, 26 Mich. 353; Church v. Holcomb, 45 Mich. 29, 40 (7 N. W. 167).
“Notwithstanding the mistake of law claimed by defendants’ solicitors, the court must not pervert nor abrogate plain rules and principles of pleading and practice. The proposed amended answer cannot, therefore, be filed as a pleading in the cause, but it will be permitted to be filed as an offered or proposed answer, so that the Supreme Court may have possession of it in the record; for that court will have the power to grant the amendment on appeal, should it deem it proper.
“3. This brings us to the question of a claimed combination of an efficient responsible agency with a natural irresponsible agency, which it is said caused the damage. Defendants’ counsel call attention to the rule laid down by the supreme court of Wisconsin in the somewhat noted case of Cook v. Railway Co., 98 Wis. 624 (74 N. W. 561, 40 L. R. A. 457, 67 Am. St. Rep. 830). At page 642, that learned court uses the following language:
“ • Where a cause set in motion by negligence reaches to the result complained of in a line of responsible causation, and another cause, having no responsible origin, reaches it at the same time, so that what then takes place would happen as the effect of either cause entirely regardless of the other, then the consequence cannot be said with any degree of certainty to relate to negligence as its antecedent. Requisite intelligent causation necessary to legal liability is wanting, leaving no ground in reason or in law for it to rest upon.’
“That this is good law, and clearly expressed, there can, I think, be no doubt. Upon the question involved complainant’s solicitor relies upon the doctrine laid down by the Michigan Supreme Court in the case of Stone v. Lumber Co., 59 Mich. 24 (26 N. W. 216). At page 31, that court says:
“ ‘ The fact that natural causes contribute with the unlawful acts complained of in producing the injury does not relieve from liability to the injured party (citing cases).
“ ‘The record in this case shows that the annual freshets occurring upon this stream were not of a character to seriously impede the growth of hay upon this marsh, or to prevent its improvement by complainant previous to the erection of this dam.’
‘ ‘ Counsel concur in the position that these cases are distinguishable, and in this I agree. In the Wisconsin case it might well be said that the damage would have resulted had the locomotive been a thousand miles away.
“As counsel for complainant argues:
‘“It could hardly be said that the fire from the locomotive even contributed to the damage, for, without that fire, the fire from the unknown cause would have been just as hot and would have burned just as quickly as the union of the two fires. In that case, how is the court going to say what proportion of the damage, if any, is the human agency responsible for ? In the Lumber Go. Case the spring freshets did do some damage, but that damage was increased and augmented by the wrongful act of the defendant, and he was, therefore, not relieved from liability, because he caused a certain degree of damage, which would not otherwise have occurred.’
“ I have examined the evidence with great care upon this question, and I am forced to the conclusion that the spring or springs would not and did not produce the injury complained of. While the springs at times rendered the fire hole damp, they did mot interfere seriously with the operation of the mill. But the uniting with this dampness of the wrongful acts of the defendants in raising the water in the stream did cause the injury complained of, so that it must be said that the water from the spring or springs was not of a character or quantity sufficient to seriously impede the running of the mill, but that-it was the raising and setting back of the water in the stream by the defendants, as complained of, that caused the damage.
“4. This brings us to the final question of damages, if the bill was properly filed. I am satisfied that the lower dam caused most, if not all, of the damage complained of. On page 23 of the testimony appears the following in the testimony of the complainant:
“ ‘ Q. Does raising the water above you interfere with you ?
‘A. No; just on the lower dam.’
“This is consistent with all of the evidence in the case. In view of the Michigan cases, I think that a perpetual injunction should issue as to the use by defendants of the lower dam. Stone v. Lumber Co., supra; Turner v. Hart, 71 Mich. 128 (38 N. W. 890, 15 Am. St. Rep. 243); Powers v. Hibbard, 114 Mich. 533 (72 N. W. 339).
“The use of the upper dam, except in conjunction with the use of the lower dam, will not cause material injury. It is the holding of the water by the lower dam that has caused the flooding of the mill of complainant. By a clear preponderance of the evidence, it appears that the stream in question has not sufficient capacity or water to admit of the running of logs without the use of dams. If, however, it can be so used without the raising of water by the use of the said lower dam, the defendants will be permitted to avail themselves of such use. Coming to the question of damages, I shall take a conservative view of the evidence. Much of the evidence of complainant is very general, some of it is vague and indefinite, and some of it is exaggerated with reference to data and values.
“ On page 56 of the testimony, in answer to the question :
“‘When your operations are not impeded by this drive, how much, on an average, do you run your mill in the course of the summer months, in a month, on an average ?
‘A. Run her about half of the time.’
“ After going over all of the evidence carefully, I have concluded to allow complainant $600 damages for the year 1900, based upon the loss of the use of the mill for 50 days, estimating the cut at 3,000 feet per day, and estimating the profits at $4 per 1,000 feet. In 1901 I shall allow him for 18 days, 3,000 feet per day, profit of $4 per 1,000 feet, or $216. For the year 1902 I estimate 15 days, 3,000 feet per day, profit $4 per 1,000 feet, or $180 — making a total of $996. I shall allow no other damages in the case, for the reasons already stated. The complainant may have a decree restraining the defendants from raising.the water in the lower dam, and a money decree against the defendants of $996, and may have execution therefor. Complainant may also have and recover his taxable costs in the case.
“Let a decree be prepared accordingly,”

The defendants have brought the case here by appeal. They contend (we quote from brief of counsel):

.• “ (1) In refusing to allow defendants to amend their answer as proposed, and to take further testimony in support of the issues which would be raised thereby.
‘£ (2) In restraining the defendants from raising heads of water upon, and operating their so-called lower dam.
££ Did the trial court exercise a sound discretion in refusing to allow defendants to amend their answer? The original answer, found at Record, p. 6, was prepared in reliance, through misapprehension, upon the cases of Boyd v. Conklin, 54 Mich. 583 (20 N. W. 595, 52 Am. Rep. 831), and other cases, from which it apparently appears to require 20 years in Michigan to acquire title by prescription. We therefore sought to mitigate as far as possible the complainant’s claim for damages.”

It is insisted that if the original answer and the amended one—

“Be read together, they will not appear inconsistent. If they appeared in the same answer, objection could not be made that the allegations were inconsistent. The allegation from the original answer could well stand in mitigation of damages, and the allegations of the amended answer as a plea in bar. In the first the idea of prescriptive right is not negatived at all. It is simply that the defendants have not and do not wish to exclude the complainant or any person from the use of Devil’s creek as a highway to drive his or their logs to market. In the second or amended answer the defendants simply claim the prescriptive right to flood complainant’s premises for the purpose of making such creek an available highway to aid in the driving of logs to market. Of course, we concede that the prescriptive right was not pleaded in the original answer, and it constitutes a new defense unquestionably, but we do maintain that the two allegations are not necessarily inconsistent.”

It is also insisted a different rule should apply in relation to amending an answer from the one applying to bills of complaint, for the reason that, if the allegations of a bill are not sufficient, the complainant may discontinue, and commence over again; while a defendant, if not permitted to amend, loses his defense entirely. The question of the amount of damages allowed is not argued.

In our view of the case, we shall need to discuss but one feature of it. The question of amendment arose in this way: The record discloses by a great quantity of proof that complainant was injured by the acts of defendants; •that the flooding of the three years in controversy was much more, and continued for a greater length of time, than it had previously done. The defendants produced as a witness John Murphy, who testified as follows:

“I was an officer of the Spalding Lumber Company Before the Crawfords went to Cedar river. I am acquainted with Devil’s creek. I had the improvements made on that stream in the summer of 1884. I superintended the •driving operations of the Spalding Lumber Company to ■.some extent. If we had thought that Devil’s creek could be driven without the aid of dams, we would not have built them there. I know the class of timber they are getting out that is coming down that creek. From what I know of driving, and of the class of timber, and the quantities coming down Devil’s creek, and get it down to the mouth of the river, I don’t think you could drive it there without the dams, for the reason that, in the first place, it is a very small creek, and there is not sufficient water runs into the creek to enable you to drive without the use of dams. Besides, there is a great descent to the creek, and more so than there is to any other creek up in that country. The fall is rapid. ”

On cross-examination he said:

“I don’t think there is water enough at any time in that creek to admit of driving without the aid of dams. You might drive small cedar logs and posts, but you couldn’t drive hemlock or pine logs. It takes about as much water, in my judgment, to drive hemlock logs as it does pine, for the reason that you have considerable large hemlock, and they are very heavy floaters. Of course, peeled hemlock, floats lighter than if they are not peeled. I have not driven the creek since 1898. I have been on the stream since then. When I speak' of the improvements on the creek, I refer to the two dams in question, the one above and the one below Pluchak’s mill. There were no other dams across the stream. We had several breakwaters to confine the water in shoal places from spreading out. The timber was a good deal larger in those days. I think it would take more water to drive it. I am familiar with the creek along there by Pluchak’s mill. I don’t think the stream at that point would be capable of being driven without the aid of dams for cedar products and hemlock, logs running 15 to 20 logs to the thousand. At the point, of the mill that is not as shoal a place as at other places. It is kind of flat. Below the lower dam is a very shoal place. The flow of the lower dam reaches nearly up thereto Pluchak’s mill. When the water in the upper dam is let off, the water from the lower dam would not flood quite up.there; but it is practically a dead place, more so than it is farther up and down below the lower dam. The ordinary flow of the stream without the use of dams in the spring of the year — the ordinary freshets — would not, I think, overflow that flat ground around Pluchak’s mill. There might be water enough right at the mill to carry the forest products in the bed of the stream; but, as I say,, above the mill and below the lower dam you couldn’t. From the time we built the improvements there, the use-of both the upper and lower dams raised the water over the low ground by Pluchak’s mill. I continued with the Spalding Lumber Company from the time these dams were built until that company sold out. Driving was done-every year upon this stream by me by means of these dams. That resulted in more or less flooding of the premises around Pluchak’s mill in that vicinity. That was-uniformly so every year — more or less flooding there — as the driving was done with the use of these dams. That was uniformly so. I have been there since Spalding Company sold out.
Q. Was it flooded as much before as since, or more ?'
“A. The dams were just the same. I have not been there when they were driving. But the dams were just the same, and the flooding would be about the same.”

This is all of his testimony given upon the trial, though he had made an affidavit earlier, which it is claimed is inconsistent with his testimony; but we do not need to further refer to it.

The following then occurred:

“At the close of the testimony in open court, and upon the testimony given by the witness John Murphy in open court, solicitor for defendants asked permission to prepare and file an amended answer in the cause and submit the same to the court and solicitor for complainant, together with written argument and brief. Permission was given by the court to solicitor for defendants to prepare and submit to the court a proposed amended answer. Such proposed amended answer on the part of the defendants was seasonably prepared and submitted to the court and solicitor for the complainant, together with written argument and brief in the cause, and was, by leave of the court, filed herein on the 22d day of'June, A. D. 1903, as a proposed amended answer, but was refused as an amended answer in the cause.”

It will be observed this application to amend occurred after the testimony was all in, and without any request whatever being made to take further proof. There is not a suggestion in the record that counsel desired in the lower court to put in further testimony. If we consider the amended answer as allowed, and also consider the testimony of Mr. Murphy, which is the only testimony bearing upon that subject, it will be found the defendants have not met the case presented by the complainant. Mr. Murphy’s testimony shows he has driven no logs on the stream since 1898, and that he has not been there when they were driving logs since then. Giving his testimony the fullest credence, it fails to meet the testimony of complainant that the flooding during 1900, 1901, and 1902 was much worse, and for a longer period of time, than it had been before.

The decree is affirmed.

The other Justices concurred.


author: Grant, J.

text:
    PROCHASKA v. FOX.
    1. Assumpsit — Common Counts — Breach oh Lease.
    Plaintiff leased land of defendant for two weeks for a. certain use, paying the rent. After he had used it for a week, a preliminary injunction, at suit of a third person, issued against such use, and plaintiff discontinued it. Held, that plaintiff could not maintain a suit on the common counts for the rent paid, as, if defendant broke his covenant for quiet enjoyment, or if plaintiff was evicted by a superior title, the declaration should be special; the measure of recovery being the value of the use for the remaining week.
    2. Pleading — Declaration—Amendment—Time.
    Refusal of amendment of the declaration, asked for after plaintiff has rested and the court is about to direct a verdict, is not error.
    Error to Wayne; Hosmer, J.
    Submitted June 17, 1904.
    (Docket No. 34.)
    Decided September 13, 1904.
    Assumpsit by Yincent W. Procbaska against Harry J. Fox for money had and received. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.
    B. & L. owned some vacant lots in the city of Detroit. They leased them to P. for a display of fireworks. P. appears to have subleased to defendant, who leased to plaintiff the bar privileges for a period of two weeks, July 14th to July 36th. Plaintiff put up tents, and kept a saloon therein, where he sold intoxicating liquors. B. & L., claiming that they had not leased the property for saloon purposes, filed a bill in chancery against P., the defendant, and the B. Stroh Brewing Company, praying for an injunction to restrain the defendant from selling intoxicating liquors upon the premises. A preliminary injunction was issued and served after plaintiff had carried on the business five days. That suit it appears never came to a hearing, and consequently the merits of the case were never determined. Upon the serving of the injunction, the business was discontinued. Plaintiff brought suit in justice’s court on the common counts, claiming damages $500. Defendant demanded a bill of particulars. Whether such bill was ever served the record does not show. The plea was the general issue. Plaintiff was defeated in the justice’s court, and appealed to the circuit court, where he was again defeated by direction of the court. He paid defendant $550 by check of the B. Stroh Brewing Company for the saloon privilege for the two weeks.

      Alex J: Groesbeck and John O. Tobias, for appellant.

      Dwight O. Bexford, for appellee.
   Grant, J.

(after stating the facts). The theory of the plaintiff is that he was evicted from the premises before the expiration of his term; that the defendant was responsible for such eviction, and was guilty of breach of contract; and that plaintiff is entitled to recover on the common counts in assumpsit for money equitably due him. His counsel claim the right to recover the money paid for the lease. Clearly he could not recover the whole amount, for he had the use of the premises nearly half the time granted by the lease. If the defendant had broken his covenant or agreement for quiet enjoyment, or if plaintiff had been evicted by a paramount title, the declaration should have been special, and the measure of damages would have been the value of the use of the land less the rent. 5 Enc. PI. & Prac. pp. 371-375; 2 Taylor, Landl. & Ten. § 661; Cornelissens v. Driscoll, 89 Mich. 34 (50 N. W. 749); Long v. Sinclair, 38 Mich. 90; Coulter v. Norton, 100 Mich. 389 (59 N. W. 163, 43 Am. St. Rep. 458).

After the plaintiff had rested, and the court was about to direct a verdict, plaintiff’s counsel asked leave to amend the declaration. No amendment was tendered, and what the form of the amendment would be is not shown. Whether the proposed amendment would have been admissible we need not determine. The court did not err in refusing an amendment at that stage of the trial.

Judgment affirmed.

The other Justices concurred.


author: Carpenter, J.

text:
    HOSTE v. DALTON.
    1. Equity — Degree—Piling Opinion.
    Whether or not a decree is void because the opinion was not filed within six months after final submission of the cause», as required by 1 Comp. Laws, § 558, is not presented for decision by a record that merely shows that, after the close of the testimony, time was given counsel to file briefs,, and it does-not appear that the briefs were filed more than six months before the decision of the controversy.
    2. Same — Waiver op Objection.
    Participation by defendants’ counsel in the settlement of a decree without raising the objection that no opinion was rendered within six months after the case was finally submitted, as required by 1 Comp. Laws, § 558, waives the objection.
    8. Married Women — Arbitration.
    Section 10924 of the Compiled Laws, excepting “married, women ” from the persons who are thereby authorized to enter into a statutory arbitration, has no application to an. agreement for a common-law arbitration.
    4. Same — Common-Law Arbitration.
    Section 8690 of the Compiled Laws, providing that a married woman shall have complete power to contract with relation to her. own property, empowers a married woman to enter into an agreement for a common-law arbitration.
    5. Arbitration and Award — Parties—Conolusiveness.
    Where one of testator’s children, interested in the probate of his will, was not a party to a contest thereof, an arbitration agreement for the settlement of such contest was not void by reason of her failure to sign the same, since she could not be affected by the award.
    6. Same — Agreement—Construction.
    Where the parties to a will contest entered into an arbitration-agreement for the settlement thereof, providing that if any question should arise as to the construction and enforcement of the agreement it should be submitted for decision to the circuit court, such agreement should be construed to refer to the side of the circuit court having jurisdiction of the controversy that might arise, and was not limited to the law side-of the court, on which the will contest was then pending.

      7. Same — Courts—Ousting Jurisdiction — Appeal.
    Where an arbitration agreement provides that any controversy between the parties thereunder shall be submitted to thé circuit court, and that its decision shall be final, such agreement is valid and binding on the parties, though it ousts the Supreme Court of jurisdiction of an appeal, and precludes a review of the decision of the circuit court.
    8. Public Policy — Discouraging Litigation.
    On grounds of public policy, litigants should be encouraged to accept as final the decisions of courts of original jurisdiction.
    Appeal from Wayne; Hosmer, J.
    Submitted June 17, 1904.
    (Docket No. 36.)
    Decided September 13, 1904.
    Bill by Catherine Hoste and others against Honorah Dalton and others to compel specific performance of an agreement to arbitrate. From a decree for complainants, defendants appeal.
    Affirmed.
    . Ed. E. Kane, for complainants.

      Robert M. Dalton, for defendants.
   Carpenter, J.

Honorah Dalton is the widow of Lawrence Dalton, deceased.' The other parties to this suit are the children of said Lawrence and Honorah. The parties to this suit entered into a written agreement by which they settled a pending contest of the will of said Lawrence Dalton, deceased. Complainants brought this suit to enforce said agreement, and obtained a decree in the court below. Defendants insist that said agreement should be vacated, because no opinion was filed therein within six months after the cause was finally submitted, as required by section 558 of the Compiled Laws of 1897. It is not necessary in this case to determine whether or not the proper construction of this statute renders void a decree not entered within said six months, as it does not clearly appear on this record that the statute was violated. When the testimony was closed, time was given counsel to file briefs, and it does not appear that these briefs were filed —that is, that the case was, in the language of the statute, “finally submitted” — more than six months before* the decision of the controversy. We are compelled also to say that defendants’ counsel waived the objection by participating in the settlement of the decree without raising it.

The agreement sought to be enforced in this case contained a provision by which the amount which defendants Lawrence J. and Robert M. (proponents in the will contest) were to pay complainants (contestants in the will contest) was to depend upon the value of certain lands left by said Lawrence, deceased. This value was to be determined by the majority of three arbitrators. The arbitrators were to be appointed in the usual manner. Two of said arbitrators signed a report, agreeing on the value of said land. It is urged that this agreement for settlement is not binding, because complainants, being married women; were incapable of entering into a contract of' arbitration. The arbitration in question was not a statutory arbitration, and therefore the clause in section 10924 of the Compiled Laws of 1897, excepting “married women ” from the persons who may enter into a statutory arbitration, has no application. The arbitration in question was a common-law arbitration, and in our judgment section 8690, 3 Comp. Laws — the statute which gives a married woman complete power to contract with relation to her own property — authorized the making of the contract in question. See Morse on Arbitration and Award, p. 27.

It is also contended that the contract was invalid because Margaret Baumgartner, another child of Lawrence and Honorah Dalton, was pot a party to, and did not sign, the same. Margaret Baumgartner was undoubtedly interested in the probate of her father’s will. If the contest instituted by complainants had succeeded, she would have profited by it the same as they. But it is to be inferred from this record that she did not make herself a party to that controversy. It therefore follows that the decisions (see Owen v. Hurd, 2 Term Rep. 643; McCarthy v. Swan, 145 Mass. 471 [14 N. E. 635]) which hold that all the parties to a controversy must sign the agreement to submit to arbitration have no application. Nor is it true that the award of the arbitrators determined her rights. The authorities (see Gregory v. Trust Co., 36 Fed. 408; City of Mobile v. Wood, 95 Fed. 537) which hold that such agreements are invalid unless all parties who are bound thereby sign the same have therefore no application.

It is insisted that the award of the arbitrators is not binding because of various irregularities. In our judgment these objections should not be considered by this court, because the parties to this suit have made a valid and binding agreement to accept the decision of the circuit court as final. In the agreement, heretofore referred to, we find this language:

“ If any question should hereafter arise between the parties hereto as to the construction and enforcement of this agreement, the same shall be submitted for decision to this court [the agreement was entitled in the circuit court for the county of Wayne] and its decision shall be final.”

We cannot agree with defendants’ counsel that this language, properly construed, referred to the law side of the court, in which the will contest was then pending. It is much more reasonable to suppose that it referred to that side of the court which would have jurisdiction of the controversy that might arise, and that means in this case the chancery side of the court. Nor can we agree that the proper construction of this language permits an appeal. It cannot be said that the agreement that the decision of the circuit court shall be final, as it can of an agreement that an award shall be “final and conclusive,’’ merely indicates the intention of the parties to be bound by the decision. See Mussina v. Hertzog, 5 Bin. (Pa.) 387. The agreement that the decision shall be “ final ” necessarily implies that it shall not be reviewed by another court.

It is further objected that an agreement to accept the decision of a lower tribunal as final — in other words, that an agreement not to appeal from such a decision — is invalid. "We are referred to no authority in support of this proposition. On the contrary, there are numerous decisions holding the contrary. See Townsend v. Stone Dressing Co., 15 N. Y. 587; People v. Stephens, 52 N. Y. 306; Riggs v. Insurance Co., 125 N. Y. 11 (25 N. E. 1058, 10 L. R. A. 684, 21 Am. St. Rep. 716); Watson v. Wetter, 91 Pa. St. 385; Rogers v. Playford, 12 Pa. St. 181.

It is contended that the agreement is invalid because it ousts the Supreme Court of jurisdiction. It is true that it has been often held that an executory agreement to submit future disputes to arbitration are enforceable only by suit for damages, because such agreements oust the courts —that is, all courts — of their jurisdiction. See Chippewa Lumber Co. v. Phenix Ins. Co., 80 Mich., at page 120 (44 N. W. 1055); White v. Railroad Co., 135 Mass. 216; also authorities collected, 2 Am. & Eng. Enc. Law (2d Ed.), pp. 570-578. The agreement under consideration does not oust all courts of their jurisdiction. On the contrary, it requires the decision of a court of competent jurisdiction, and the only court of original jurisdiction. It is true that the agreement, by preventing the defeated litigant from reviewing his case in the Supreme Court, ousts that court of its jurisdiction. That agreement is not prohibited by the foregoing authorities. On the contrary, as heretofore indicated, it is sustained by all of the authorities brought to our notice. Unless the rule that makes agreements unenforceable because they oust courts of their jurisdiction is considerably extended, it does not apply to this case. And we think it is authoritatively settled by our own decisions (see Van Poucke v. St. Vincent de Paul Society, 63 Mich. 378 [29 N. W. 863]; Canfield v. Knights of Maccabees, 87 Mich. 626 [49 N. W. 875, 13 L. R. A. 625, 24 Am. St. Rep. 186]; Hembeau v. Knights of Maccabees, 161 Mich. 161 [59 N. W. 417, 49 L. R. A. 592, 45 Am. St. Rep. 400]; Fillmore v. Knights of Maccabees, 103 Mich. 437 [61 N. W. 785]) that it is not to be extended. We are therefore compelled to hold that the rule does not apply to this case.

We think on grounds of public policy litigants should be encouraged to accept as final the decisions of courts of original jurisdiction.

The decree appealed from is therefore affirmed, with costs.

The other Justices concurred.


text:
    PEOPLE v. HUTCHINGS.
    1. Criminal Law — Second Jeopardy.
    Where, on a juror becoming, ill after the prosecutor’s opening statement, but before the introduction of any testimony, the court, over respondent’s objection, discharges the remainder of the jury from further consideration of the case, on the ground that respondent is out on bail and other more urgent matters require the attention of the court, he is not so put in jeopardy as to preclude a subsequent trial
    3. Same — Trial—Curing Error.
    Refusal, in a prosecution for larceny, to permit respondent to show restitution by cross-examination of the complaining witness, is not prejudicial where the whole matter was developed at a later stage of the trial.
    3. Same — Evidence—Comparison oe Handwriting.
    Where, in a prosecution for larceny of money, alleged to have been obtained through the forgery of a draft by respondent, he claimed that he was paid the money secured by the draft, by a third person, to be used to purchase wood in the country, and introduced a receipt for wood so purchased in his own handwriting, the draft being properly in evidence, it was not error for the court to permit respondent’s signature on the receipt and the indorsement on the draft to be compared.
    •4. Same — Admissions oe Co-Respondents.
    Where respondent and another were informed against for the larceny of money obtained through a forged draft, and respondent-was separately tried before his co-respondent, and was not, charged with conspiracy, evidence given by his co-respondent in the police court, by which he attempted to fix the crime, on respondent, was inadmissible.
    5. Same — Argument of Counsel.
    Where, in a prosecution for the larceny of money, alleged to-have been obtained through a forged draft, the draft and a receipt signed by defendant were introduced in evidence, it-was not error for the prosecuting attorney, in argument to-the jury, to call their attention to identical peculiarities in the handwriting on the receipt and in the indorsement on the-draft.
    6. Same.
    Where, in a criminal prosecution, there is nothing in the record-justifying a claim that prior to the offense in question respondent has done anything requiring him to have a pal, it is improper for the prosecuting attorney, in argument, in-commenting on character witnesses introduced, to state that-none of the character witnesses knew anything about what respondent was doing while living in D., or his reputation, and the only man called from D., where respondent resided two years, was one of respondent’s pals.
    7. Same — Requests to Charge.
    Matters sufficiently covered by the general charge need not be repeated.
    Error to recorder’s court of Detroit; Phelan, J.
    Submitted June 17, 1904.
    (Docket No. 188.)
    Decided September 13, 1904.
    Prank E. Hutchings was convicted of larceny.
    Reversed.

      Samuel W. Burroughs, for appellant.

      Ormond F. Hunt, Prosecuting Attorney, and Louis C. Wurzer, Assistant Prosecuting Attorney, for the people.
   Moore, C. J.

The respondent was convicted of the crime of larceny. He has brought the • case here upon, writ of error.

Prior to October 11, 1902, Mrs. Claude E. Price was a resident of Bay City, where she had some money in a bank. In October, 1902, she lived on Duffield street, in Detroit. She requested the bank in Bay City to send her a draft. It sent her one for $187.31, payable to Mrs. C. E. Price, and inclosed it in a letter addressed to Mrs. C. E. Price, Detroit, Mich. The mail carrier, instead of delivering the letter to Mrs. C. E. Price, Duffield street, October 11th, delivered it to C. E. Price & Co., 1304 "West Fort street.

On October 13th the respondent presented it to the Wayne County Savings Bank, first indorsing his name on the back of it in the presence of the paying teller. It then had the words “Mrs C E Price” over the signature of Mr. Hutchings. He obtained the money on it.

Soon after this, it was found the indorsement purporting to be that of Mrs. Price was not hers. The paying teller went to respondent’s house, but he was not at home. Later Mr. Gardner, who had been in the employ of the bank, and was a relative of respondent, was requested to look him up. He did not find respondent at home, and left word for him that something was wrong with the draft. After respondent was told of this by his wife, he went to the bank, and the same information was given him. He expressed his surprise, and was requested to accompany the teller to police headquarters. On his way there he expressed his desire to make the bank good, and said he supposed the draft was all right. He explained he had assisted some men in making a horse trade at the market for which he was to be paid $5; that they had the draft, and, being strangers to the bank, wanted the respondent, who had. before dealt with the bank, to get the money; and that he drove with them in a buggy to the bank, where they waited outside while he got the money. He repeated this story to the officers after he got to the police headquarters. He was searched, and $12 was found on his person. Later he told the officers he got' the draft from C. E. Price & Co., and got it cashed at their request. He also produced from his stocking $70. The two Prices were arrested, and they as well as defendant, after a preliminary examination, were held for trial in the recorder’s court. Respondent’s counsel demanded a separate trial for him. An information was filed against him for larceny, and, upon his standing mute when arraigned, a plea of not guilty was entered, and a trial was had, with the result before stated.

It was his claim upon the trial, and is here, that he was acquainted with the two Prices; that they owed him $50; 'that he desired to buy wood in the country, to sell again, and had sought a loan from them to enable him to do so; that they sent for him to come to their place of business, and showed him this draft, which had the indorsement on the back of it, “ Mrs C E Price,” and told him to get the money at the bank, pay himself what they owed him, use the balance to buy wood, and divide the profits with them; that he, in the utmost good faith, got the money at the bank, and that the occasion of his being in the country when the teller and Mr. Gardner looked for him was to buy wood; that he bought $90 worth of wood. A receipt for some of the money paid thereon, in his handwriting, except the signature, was produced in evidence on the trial. It was his further claim that when his wife told him about the draft he at once saw the Prices, who told him how to account for having the draft by telling the horse-trading story. It is his claim he acted in good faith in getting the money.

The Prices’ version is that the respondent took the draft from their desk, and made the indorsement and got the money after they told him they were afraid, and that the draft should be returned to the post office.

The record is long, and the assignments of error are many. It may be stated that the following grouping will cover them:

(1) Discharge of the jury; (2) prejudicial remarks by the court; (3) restriction of cross-examination; (4) evidence of restitution excluded; (5) comparison of handwriting; (6) cross-examination of defendant; (?) police court testimony of codefendant E. W. Price; (8) argument of prosecutor; (9) charge of court and requests to charge; (10) variance between information and proof; (11) failure to file written reasons for denying motion.

As to groups 2, 3, 6, 10, 11, we think it unnecessary to .say more than that we have examined them in connection with the record, and do not think that they are well taken.

(1) Did the court err in discharging the first jury ? The facts in relation to that transaction are as follows: On the first day of the trial, after the jury were sworn and the counsel for the respective parties had made their opening statement, but before any testimony was taken, the case was adjourned until the next morning. The next morning one of the jurors was ill, and the case was adjourned until the following morning. The following morning the juror was still ill, and it became necessary to decide what should be done. Counsel for respondent desired that another juror be drawn from the regular panel, the jury resworn, and the trial proceed. The judge inquired if the respondent was in custody, and was informed that he was out on bail. The court then stated there were but five days remaining in'the term; that other business demanded the attention of the court; that the best interests of the people required the court to take up some other case; and directed an order to be entered reciting the facts, and discharging the 11 men from the further consideration of the case. "When a new jury was impaneled, objection was taken to any further proceedings on the ground that respondent had been once placed in jeopardy. We do not think the court erred in his conduct of this feature of the case. 1? Am. & Eng. Enc. Law (2d Ed.), pp. 1258-1260, and cases cited therein.

(4) Evidence of restitution excluded. Was there error in this ? The court might very properly have allowed respondent to show by the teller on the cross-examination all that occurred between the bhnk officers and the respondent. The substance of this, however, was gone into later, and we do not think respondent was prejudiced as to this feature of the case to that extent as to require a reversal of the case for that reason.

(5) Was there error in relation to the comparison of handwriting? The receipt for wood was introduced in evidence by Mr. Hutchings. The draft was properly in evidence. We have no doubt it was proper to compare these handwritings. The record is not clear that Exhibit 2 was introduced in evidence, and when the question was raised the comparison with it was not urged.

(7) Did the court err in admitting the testimony of E. W. Price, given in the police court, to be read in evidence? Mr. Price was produced and sworn. When he was asked about the transaction his counsel claimed, as he had not been tried, he should not be compelled to answer, as his answer would serve to incriminate him. This claim was sustained. Against the objection of respondent, his testimony given in the police court, covering 10 pages of the printed record, was read to him, and he was permitted to answer that he so testified in the police court. In reply to the objection to this testimony, counsel for the people say the objection to it was waived by counsel for respondent, and it is not necessary to discuss it. We do not so understand the record. Counsel for respondent stated several reasons why he objected to this testimony, some of which were perhaps removed by what subsequently occurred, but he persisted in the claim that, as his client was separately charged with larceny, and was then being tried separately, anything Mr. Price might have testified to in the police court could not be used against Mr. Hutchings. The effect of allowing this testimony was to get 10 printed pages of testimony before the jury without respondent having the benefit of cross-examination. We held in People v. Butler, 111 Mich. 483 (69 N. W. 734), that where two persons were on trial for conspiracy, and one of them had voluntarily testified in the police court, this testimony was competent as against the one giving it. But that is a very different case from this one. Here the information was against Hutchings alone. He was not charged with conspiracy, but with larceny. Price was not upon trial. This testimony was taken after Price and Hutchings had ceased to act in harmony, and when each was seeking to place the crime upon the other. We think the admission of this testimony was error.

(8) Should the case be reversed because of the argument of counsel? We think much of the argument was justified by the testimony. To illustrate: The attorney for the people said to the jury:

“Now, gentlemen of the jury, I am going to prove to you by the testimony in this case that Hutchings did commit the forgery upon the back of this draft, and that it was Hutchings himself who signed the name ‘ Mrs E C Price ’ upon the back of this check, although he denies having done so. * * * I will first show it to you by the two signatures, and I will point them out to you. One of the peculiarities of Hutchings’ handwriting is this: That he never uses a period, he never puts a period behind the capital letters. I will call your attention to the signature ‘Mrs O E Price.’ There is no period behind the ‘Mrs,’ there is no period behind the ‘C,’ there is no period behind the ‘E,’ although all these different letters and abbreviations require' periods. * * * I call your attention to the signature ‘ F E Hutchings ’ below. No periods between ‘ F,’ no period between ‘ E.’ I call your attention— I would like to have you gentlemen remember that, because you will have a right to take this draft and papers in the jury-room with you to compare them. I call your attention also to the similarity of the ‘ c ’ in Price— the small ‘ c ’ — and the ‘c ’ in Hutchings.”

We have facsimiles of the signatures before us, and we think this argument was justified by them. We cannot, however, say the same of the following:

“ They talk about character witnesses. He was here two years in the city of Detroit, and none of these character witnesses knew anything about what he was doing here; didn’t know anything about his reputation; and the man — the only man — they called from Detroit, who did know him, was a pal of his in Detroit.”

There is nothing in the record which justified the claim that prior to this respondent had done anything requiring-him to havé a pal, or the calling of the witness as to good reputation a pal of respondent’s, and, the characterization had better have been omitted. We do not mean to say that, had this been the only error, we should reverse the case.

(9) Did the court err in refusing the requests of counsel and in his charge to the jury ? We have examined the-requests carefully, and the charge as well. All of the requests which were good law were fully covered in a charge of unusual clearness. This group of assignments of error is not well taken.

For the reasons stated, the conviction is set aside, and a new trial ordered.

The other Justices concurred.