author: Bird, J. Ostrander, C. J.

text:
    HILDIE v. ECKHART.
    1. Taxation — Redemption—Notice—Sufficiency.
    Where the notice to redeem from tax sale advised the owner that his land had been sold for taxes and that he could redeem within six months for a certain definite sum, the notice was not invalid because in giving the years for which sale was made one year was omitted, in the absence of a showing that he was prejudiced thereby.
    2. Same — Notice—Return.
    1 Comp. Laws 1915, § 4138, requiring that if the last grantee be a resident of any county other than that in which the land is situated, then the return as to such person shall be made by the sheriff of the county where such person resides, does not require that the return be made , by the sheriff of a county where the grantee resided 22 years before, when the deed was executed, where, after diligent search, the whereabouts of said grantee could not be ascertained.
    3. Same — Notice to Heirs oe Grantee — Presumptions.
    In the absence of information that the grantee was deceased, it was unnecessary for the sheriff’s return to show that he was unable to locate her heirs; the lapse of 22 years after the date of her deed giving her residence being insufficient to warrant the presumption that she was deceased.
    '4. Same — Description—Government Description — Statutes.
    Under Act No. 9, Pub. Acts 1882, amending the tax law requiring assessing officers to follow the government description of land, and allowing it to be assessed by any description by which it might be known, land described in a way that could have been easily understood by the owner was a valid description.
    5. Same — Husband and Wife.
    The rule preventing a husband from purchasing a tax title upon land of his wife is not applicable where the wife had been dead for three years, and the title had descended directly to her daughter.

      6. Same — Redemption—Notice.
    The record holder of a tax deed for the taxes of an earlier year is entitled to notice of redemption from a subsequent tax title purchaser.
    Error to Ogemaw; Sharpe, J.
    Submitted April 16, 1918.
    (Docket No. 92.)
    Decided October 7, 1918.
    Ejectment by Lundus A. Hildie against Morris Eckhart. Judgment for defendant. Plaintiff brings error.
    Reversed.

      William T. Yeo, for appellant.

      Harris & Chapin, for appellee.
   Bird, J.

Plantiff brought ejectment to recover the possession of lot one (1) in section two (2), town twenty-three (23) north, range one (1) east, containing 51.75 acres. The land is situate on the north shore of Clear Lake in Ogemaw county. It is conceded that plaintiff is the last grantee in the regular chain of title from the government. Defendant relies on a tax deed for the years 1894-1898 and 1900, which was issued on March 15, 1905, by the auditor general, for which the grantee paid a consideration of $35.92. No question is raised as to the validity of this deed. Plaintiff, however, takes the position that no valid notice of reconveyance was ever served on him or his grantors, and he therefore concludes that he is entitled to the possession of the premises. Defendant, to meet this contention, shows that in January, 1908, Mary McKay, one of his grantors, caused a notice of reconveyance to be placed in the hands of the sheriff of Ogemaw county to be served on Orrintha F. Ells-worth, who was at that time the owner of plaintiff’s title. The sheriff returned that he was unable to find Orrintha Ellsworth and substituted service was had by publication. After hearing the proofs the trial court reached the conclusion that the notice of reconveyance was valid, and therefore dismissed the suit.

The invalidity of the notice is asserted by plaintiff because it omitted to state one of the years for which the sale was made. The cardinal purpose of the notice is to apprise the party or parties to whom the notice is addressed that the premises have been sold for taxes and that they can repurchase them for a certain consideration within a stated time. We are unable to see how the owner in this case could have been better advised of these important facts. The notice in question advised him that his premises, describing them, had been sold for taxes, and that he could redeem them within six months for the sum of $76.92. The notice also stated the years for which the sale was made, but in doing so it omitted the year 1894. Had the notice imparted this additional information it would have placed him in no better position to protect his interest, as the redemption open to him was by paying an aggregate sum, not by paying each year’s tax by itself. The fact that the sale included the 1894 taxes was a matter of record and payment of the amount demanded would have disclosed the information. While we have been inclined to insist upon a strict compliance with the statutory notice we think it would be a too rigid construction to hold that the notice is invalid for this reason. Where the sale is made for more than one year’s taxes, the omission of one year ought not to invalidate the notice of reconveyance in the absence of a showing that the person entitled thereto has been prejudiced thereby.

Exception is also taken to the return of the sheriff as not being sufficient. As has been stated, Orrintha Ellsworth was the last grantee of record at the time the notice was served in January, 1908. She purchased the premises in the year 1886, and the deed which she received and which is of record, recites her' residence as the city of Detroit. This appears to have been the only information the sheriff had as to her residence. He followed this information and made a search for her in Detroit. In this he was assisted by the sheriff’s force of Wayne county in examining city directories and making inquiries. Being unsuccessful in this attempt to locate her the sheriff left a copy of the notice with the sheriff’s force in Wayne county. He heard nothing further from his search in Wayne county and was unable to find her elsewhere, or to ascertain her postoffiee address, and he accordingly made a return to that effect.

The point made by counsel is that the sheriff of Wayne county should have made a return. He bases this contention upon the following provision of the tax law:

“Provided, That if the grantee or grantees, or the person or persons holding the interest in said lands as aforesaid, shall be residents of any county of the State other than the county in which the land is situated, then such return as to such person shall be made by the sheriff of the county where such person or persons reside.” * * * 1 Comp. Laws 1915, § 4138.

It does not appear that the sheriff had information that Mrs. Ellsworth lived in Detroit except the information which he gathered from the deed made 22 years previously. He made the most of this information by an attempt, which appears to have been a good faith attempt, to locate her in the city of Detroit, but in this attempt he failed. We do not think the fact that the Wayne -county sheriff assisted in making a search to learn whether she was a resident of Wayne county, would make it necessary for the ¡Sheriff of Wayne county to make a return of that fact. Had the investigation disclosed that she resided in Wayne county but could not be found therein it would then have been the duty of the sheriff of Wayne county to return the fact. But it could hardly be expected that the sheriff of every county in which a search was made to learn whether she was a resident therein would be obliged to make a return that he was unable to find her.

It is further argued that the return should have shown that the sheriff was unable to locate her heirs. This would be unnecessary unless the sheriff had some information that she was deceased. The proofs fail to show that either he or any one else connected with the transaction had such information. Neither was the lapse of time so great after she purchased the premises that the sheriff would be expected to indulge the presumption that she was deceased.

During all the time that Orrintha Ellsworth owned the land it was delinquent for the taxes of 1885. Subsequent to her death and in 1893 M. H. Ellsworth, her husband, purchased a tax deed from the State of the north 40 acres of the tract, which was described as the northwest quarter (%) of the southwest quarter (14) of section two (2). Later Ellsworth joined with his daughter in conveying title to plaintiff’s grantors. It is claimed by plaintiff that Ellsworth should have had notice of reconveyance, inasmuch as his tax deed was of record. Defendant replies to this contention that there is no such land in Ogemaw county as is described in the auditor general’s deed to Ellsworth, and that such a description would be no notice to a tax deed purchaser that Ells-worth had any interest in the land in question. The basis of this contention is that the. description of the premises for taxing purposes should have followed the government field notes and plat book and been described as lot one (1), section two (2), etc., containing 51.75 acres. This .description was the result of meandering Clear Lake. The contention that this was an erroneous description finds support in the case of King v. Potter, 18 Mich. 134, where a similar situation was under discussion. The opinion in that case was rendered in the year 1869 and was rested on the statute. The statute referred to is section 804, 1 Comp. Laws' 1857, which made it incumbent upon assessing officers to follow the government description. At the session of 1882 (Act No. 9, Pub. Acts 1882), section 16 of the tax law was amended to read as follows:

“SEC. 16. The description of real property may be as follows, viz.:
“First. If the land to be assessed be an entire section, it may be described by the number of the section, township, and range.
“Second. If the tract be the subdivision of a section authorized by the United States for the sale of public lands, it may be described by the designation of such subdivision with the number of the section, township, and range.
“Third. If the tract be less or other than such subdivision, it may be described by designation of the lot or other lands by which it is bounded, or in some way by which it may be known.
“Fourth. In cases of lands platted or laid out as a town, city, or village, or as an addition to a town, city, or village, the same may be described by reference to such plat and by the number of the lots and blocks thereof, whether such plat be recorded or not.
“Fifth. When two or more parcels of land are used or occupied together, they may be assessed by one valuation.
“Sixth. Lands may be designated by any description by which they may be known.”

Subdivision 6 was brought into our statutes by this amendment.

The taxes for the year 1885 were assessed after this amendment was passed. At that time it was permissible to designate lands for the purpose of assessment by any description by which they might be known. When this assessment was made there were two ways which occur to us in which the land could have been described: Either the north forty (40) acres of lot one (1), section two (2), etc., or the northwest quarter (*4) of the southwest quarter (14) of section two (2), etc. Either way would have been a reasonably familiar description and one that could have been easily understood by the owner. We are, therefore, of the opinion that the contention that this description was an erroneous description and rendered notice of reconveyance unnecessary must be overruled.

But it is further argued by defendants that Ells-worth could not become the owner of a tax title on lands owned by his wife’s estate, thereby invoking the general rule which prohibits one from purchasing property at a sale for nonpayment of taxes whose legal and moral duty it was to pay the taxes, or one who stands in a fiduciary relation to the owner, citing the recent case of Myers v. Myers, 186 Mich. 220. The facts involved in this case do not appear to be within the general rule nor within the principle of Myers v. Myers. Without deciding the question whether Ellsworth would have been entitled to notice had this principle of law been applicable to his purchase, it may be said that, at the time Ellsworth made the purchase of this tax deed his wife had been dead for three years. She died in August, 1890, and he did not make the purchase until 1893. She died intestate, leaving one heir, a daughter. The title, upon the death of Orrintha, went directly to the daughter, and thereafter she was the owner.. The question therefore which arises is one between the father and daughter rather than between the husband and his wife’s estate. The record does not show whether the daughter was a minor at that time, but this is unimportant as Ellsworth’s right to purchase the tax title as against his daughter is not questioned.

Ellsworth’s deed was of record and its validity is not questioned. We, therefore, conclude that he was entitled to the statutory notice. The failure to serve it makes it necessary to reverse the judgment. Plaintiff will recover his costs in this court.

Steere, Brooke, Stone, and Kuhn, JJ., concurred with Bird, J.

Ostrander, C. J.

I concur in reversal. Mr. Ells-worth was entitled to notice because he was grantee in the tax deed, and the statute makes the giving him a notice imperative.

Moore and Fellows, JJ., concurred with Ostrander, C. J.


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    CRANE v. VALLEY LAND CO.
    1. Waters and Watercourses — Surface Waters — Servitudes— Natural Drainage.
    The natural flowage of surface water from an upper estate Is a servitude which the owner of the lower estate must bear, and he cannot hold it back by dykes or dam its natural channels of drainage to the injury of the owner of the upper estate.
    2. Evidence — Similar Conditions — Foundation.
    In an action for damages for injury to plaintiff’s standing timber and crops by obstructing his natural drainage, evidence of farmers as to their individual experience with their own land to support the defense that the crop failure was due to unfavorable seasons, without laying the proper foundation of similarity, was inadmissible.

      3. New Trial — Discretion—Abuse.
    Refusal of plaintiffs unopposed motion for a new trial because of the court’s action in striking out, of its own motion, in the midst of the charge, of legal documents introduced by plaintiff to refute defendant's contention that plaintiff had agreed to the construction of the dyke where located amounted to an abuse of discretion.

      4. Same — Pleading—Diligence—Newly-Discovered Evidence.
    Where defendant’s plea was the general issue with notice of the defense that plaintiff had consented to the dyke complained of as placed, plaintiff’s failure to anticipate and prepare for the defense of high water on Lake Huron during the years involved was not an inexcusable lack of diligence, and a new trial should have been granted to enable him to present government data and newly-ascertained evidence material to a vital issue in the case.
    5. Trial — Requests to Charge — Instructions.
    In an action for damages caused by the construction of a dyke, where defendant emphasized the fact that plaintiff was refused a temporary injunction, plaintiff was entitled to have the jury instructed, as requested, that the granting or not granting of a temporary injunction is no ground for action or defense.
    Error to Saginaw; Miner, J., presiding.
    Submitted April 17, 1918.
    (Docket No. 107.)
    Decided October 7, 1918.
    Case by Riley L. Crane against the Valley Laiid Company for damage to land by flooding. Judgment for defendant. Plaintiff brings error.
    Reversed.

      Riley L. Crane (Otto & Davis, of counsel), in proper.

      Arthur Otto (E. L. Beach, of counsel), for appellee.
   Steere, J.

Plaintiff brought this action in the circuit court of Saginaw county to recover damages for injury to crops and standing timber during the years 1914-1916, from excessive water upon his 80-acre farm located in Kochville township, Saginaw county, caused as he charges by certain dykes built by defendant obstructing his natural drainage. From an adverse verdict and judgment he has removed the case to this court for review claiming prejudicial error on various, assignments.

Defendant is a Michigan corporation, with headquarters at Bay City, organized for the purpose of buying and reclaiming by dyking and draining certain marsh and overflowed land in the Saginaw valley lying immediately to the east and north of plaintiff’s farm, between it and the Saginaw river.

Plaintiff’s 80 acres is described as the E ½ of the S W ¼ of sec. 19, town 13 N, of range 5 E. It is located just east of the Michigan Central Railroad line between Saginaw and Bay City, in the lower portion of the Saginaw valley where the land is generally flat and near the water level, much of it to the east and north of the plaintiff’s farm being, in its natural condition open marsh too low and wet for successful agriculture and, because of the water level, difficult to drain and reclaim. His farm is, however, as described by him without dispute, exceptionally high for that locality and sufficiently dry in its natural condition for cultivation, having formerly been “all wooded except about five acres at the south,” with good natural drainage into a tributary of the Saginaw river called Davis creek. It is clay land with a black loam top soil and one of the pioneer farms of Saginaw valley, early settled upon, cleared and successfully cultivated for many years. With the exception of the 16-acre woodlot it had been a cleared and. improved farm under cultivation since plaintiff first became acquainted with it in 1880. Attracted to it as a fertile and productive farm he purchased it in 1897, and thereafter successfully cultivated and cropped it, with a tenant in direct possession who continued for 20 years to work it on shares under plaintiff’s direction, raising annually and profitably good yields of the customary crops grown by farmers — such as wheat, corn, oats, beans, buckwheat, potatoes, sugar beets and the usual garden products, without failure until in 1914 when defendant in a project to reclaim the marsh land below him constructed and closed its dykes which, as he contends, so obstructed his former free drainage, soaked with seepage and flooded his land that thereafter trees in his woodlot died, his meadows and pastures deteriorated, and the cultivated fields, cropped and tilled in the same manner as formerly so far as possible, failed to produce in whole or part, as a result of which the crops and income from this farm were not to exceed one-half of normal in 1914 and. one-fourth in 1915 an'd 1916.

Davis creek is a small tributary of the Saginaw river, navigable in the sense.that it is boatable and a drivable stream for logs. Its general course is east and northerly, furnishing drainage for much of Koch-ville township lying to the west of plaintiff’s farm, which the creek crosses near the south line flowing practically east to some twenty rods beyond his east line when it swings nearly north across section 19, furnishing his land drainage to the south and east, then runs more northeasterly through yet lower marsh lands for about one and one-half miles to where it joins the Saginaw river, which flows a northerly course varying easterly to its outlet in Saginaw Bay. Between plaintiff’s farm and the Saginaw river, the land to the east and north was in its natural condition, open prairie and marsh, lower than his except an elevation called Calf island, subject to floods in high water, and portions so low as to be submerged by the normal water level. A tract of this marsh said to be about two miles in extent east and west and about four miles north and south lay in what is termed a basin partly submerged much of the year, and so near on a level with Saginaw bay that the water upon it varied with the condition of wind and water level on the bay. Referring to this low territory east of plaintiff’s farm defendant’s engineer said:

“The north wind drives the water from Saginaw river into Davis creek. The water goes as high as the Saginaw river is. If the water raises a foot on the land it might raise and spread over half a mile. If it raises three feet it might go back a mile and a half to the west.”

The soil of these low lands of the Saginaw valley are said to be largely lake clay, or the clayey portion of an ancient lake bed, known to be fertile and of ■high productivity when well drained. The purpose of defendant’s organization was to purchase and reclaim these practically worthless marshes by a system of dredge cuts and enclosing dykes above high water mark, with a pumping station to drain the enclosed territory.

Actual work was begun upon this project in 1912, and while yet in its preliminary stages plaintiff, in anticipation of the result to his property, made inquiry, suggestions and protest against the work as planned. No adjustment being reached he filed a bill for an injunction to restrain defendant from interfering with his drainage by building any dyke within one-half mile east of his land, or along the east side of section 19 so as to inclose Davis creek. An order was made by the judge to whom he applied, on March 4, 1913, requiring defendant to furnish plaintiff a bond to protect him against any damage to his land by water resulting from its dykes being too near the same. The work proceeded, however, without any bond being given until defendant reached with its cut and dyke 'the south side of section 19 and proceeded towards the west and in July, 1913, plaintiff appealed to the court for preliminary relief under his bill and the judge to whom he applied, together with the parties in interest and counsel, went upon the ground where they looked over and discussed the situation. The evidence is in conflict as to whether or not any agreement was reached between the parties whereby plaintiff consented to what was subsequently done, but it appears that defendant gave assurances to the judge as to where its dyke east of plaintiff’s land would be located. He then orally directed that it file the bond previously ordered and permitted defendant to proceed in the direction the dredge was then working, and the bond was thereafter filed. Some three weeks later defendant turned north on section 19 so far to the west that it crossed the windings of the creek with its cut and dyke. Plaintiff claimed this was in violation of its promise to him and the judge who permitted it to proceed, which defendant denied claiming that the cut, which was west of the dyke, served to straighten out the creek, or supply the drainage previously furnished by it. To what extent it served that purpose is in marked dispute. While this work was going on an application was made by the township of Kochville for an injunction to restrain defendant from putting any dyke in or west of the creek, which was granted. The cut and dyke were continued north through section 19 and defendant thereafter completed a dyke east from the north quarter post of that section closing its dykes.

Plaintiff’s claim is that the natural drainage through Davis creek was destroyed, and the cut on the west outside of the north and south dyke constantly remained full of water because of insufficient fall and outlet; that this dyke extending north and south in the line of drainage so near his land on the east, between it and the river, is in itself a complete barrier to the natural escape of water from his premises to where it had previously gone, and with the other dykes excludes it from a large area of much lower inclosed marsh land where it previously flowed and spread, thus impeding and changing the former free drainage conditions so that his land remains constantly soaked.and too wet for successful tillage.

Defendant’s contention is that the cut outside of the dyke furnishes better drainage below plaintiff’s land than Davis creek did in combination with all the low area north and east of the Saginaw river; and that plaintiff consented to its placing this dyke where now located north and south through section 19, which he emphatically denies. These issues upon which there is much conflicting testimony were within the realm of facts for the jury.

The law is well settled in this State and elsewhere that the natural flowage of surface water from an upper estate is a servitude which the owner of the lower estate must bear, and he cannot hold it back by dykes or dam its natural channels of drainage to the injury of the owner of the upper estate. Boyd v. Conklin, 54 Mich. 583 (52 Am. Rep. 831); Leidlein v. Meyer, 95 Mich. 586.

Defendant does not question this rule of law nor on the facts seriously controvert plaintiff’s evidence as to the history, previous condition and productivity of his farm, but contends as to his failures of crops in the years for which he seeks damages that they were not as serious as he claims, but were to the extent actually shown the result of weather conditions during those years, in which the seasons were unfavorable for farming owing to excessively wet springs and later drouths, common to all and causing poor crops generally in that region. To sustain that contention certain testimony of farmers was introduced by defendant as to conditions elsewhere and failure of their own crops, without showing that the conditions, crops, tillage, soil, elevation with natural drainage facilities, etc., were like or similar to those of plaintiff’s farm, admission of which is assigned as error. While it was competent to show the weather conditions during those years and how crops were generally affected by them in that section — whether they were favorable or unfavorable years for crops and why, it was incompetent to show against objection the special experience of the individual farmer with his own land and crops without laying the proper foundation of similarity. Without detailing the particular instances it may be said in passing that this was permitted during the trial to an objectionable if not prejudicial extent.

A serious issue in the case strenuously contested was whether plaintiff waived his objections to the north and south dyke east of his land being constructed where it is located on section 19. Defendant claimed he did so when the parties were on the ground with the judge to whom plaintiff had applied for an injunction and who had previously ordered an indemnity bond which he again orally directed defendant to give. He was there but once. Plaintiff contended that in the affair there was no agreement, but on the contrary he was earnestly requesting of the court protection and relief which he failed to obtain except to the extent of the bond which was given three weeks later and, it being for a limited time, an auxiliary agreement by defendant to give a further bond for the same amount as permanent indemnity, or protection against damages to his drainage. In support of his claim that there was no consent by him to the line as located, plaintiff produced these papers from the files of the chancery suit between the parties, identified and offered them in evidence. On objection by defendant’s counsel they were not then admitted but after discussion held by the court for consideration, and near the close of the case were received in evidence. In the midst of the charge, after explaining and submitting to the jury the question of whether plaintiff agreed to the location of the dyke where placed and instructing them that in such case “plaintiff cannot recover any damages which he has been caused by defendant doing what plaintiff greed then to do,” the court said to plaintiff:

“I- think now, * * * I will have to take those papers from consideration of the jury for this reason: That they were not read in evidence, * * * I think I will take them from consideration, the bond and agreement.”

And went on with the charge, first saying to the jury:

“But you have a right to take into consideration all the facts in the case that I have not withdrawn from you in determining whether such an agreement was made or not.”

To this transaction in the midst of the charge plaintiff seasonably excepted, later presenting it as one of his grounds for a motion for a new trial, which was refused, and he now urges it as prejudicial error. That it was prejudicial to plaintiff’s contention as to the significance of these papers upon a controlling issue of fact in the case, if decided against him, is evident. They were legal documents from the files of a case between the same parties and in the hands of the court, were held for some time to consider their admissibility, and after discussion admitted, as the court stated in the presence of the jury, for their bearing upon the probability of plaintiff having consented to the dyke of which he complained being put where it was located, “but for no other purpose,” the court then saying directly to the jury, “Now, gentlemen of the jury, when I say for no other purpose, do not use them for any other purpose.” When they were withdrawn by the court during the charge while discussing the only matter to which they related, with instructions to the jury not to take them into consideration, no objection had been made by defendant to the jury considering them, after they had been admitted, the general nature of, and plaintiff’s purpose in offering these legal documents had been stated and discussed in the presence of the jury. Their only purpose was to indemnify plaintiff and the fact that they were given was but circumstantial evidence bearing upon the probability of another claimed fact directly involved in the case. It would seem that the jury were sufficiently advised by what had transpired in their presence and was said to them of the nature and purpose of these documents to understandingly pass upon the significance of their having been given, and if at that stage of the case the court thought for any reason they should be further advised or instructed the documents were in evidence in the hands of the court and available for that purpose. If it was technically discretionary with the court on its own motion to at that time strike them out, in the midst of the charge, for the reason stated, we are impressed that under the circumstances shown and verdict rendered such course tended prejudicially against plaintiff’s contention on an issue of fact in which an adverse verdict was fatal to his «case, and the court’s refusal to grant plaintiff’s subsequent motion for a new trial, which he states in his brief was not opposed, amounts to an abuse of discretion. Plaintiff twice presented his motion for a new trial, the second time supported by affidavits, with Government data and maps, made a part of the same, tending amongst other things to show that the level of Lake Huron including Saginaw bay was not above normal during the years in question as had been claimed with supporting testimony by defendant to account for any excessive water around its dykes. This' the court rejected as cumulative when denying the motion. Defendant’s plea was the general issue, with special notice of the defense that plaintiff had consented to the dykes as placed. While perhaps within the scope of the general issue, the distinct defense of high water on* Lake Huron during those years was not suggested by the pleadings and it can well be urged that plaintiff’s failure to anticipate and prepare for it was not an inexcusable lack of diligence. What he presented was apparently new and newly-ascertained evidence, material to a vital issue in the case. We are impressed that considered as a whole plaintiff’s motions present meritorious features in law and fact entitling him to a retrial.

In relation to plaintiff’s application for a temporary injunction in the chancery suit between the parties which was shown in connection with the judge and parties viewing the premises, defendant emphasized the fact that a well-known judge to whom plaintiff applied did not grant the same, but permitted defendant to proceed with the work. Referring to this application plaintiff requested the court in writing to instruct the jury that “The granting, or not granting, a temporary injunction is no ground for action, or defense, in this action.” The manner in which the occasion of his unsuccessful application for an injunction was testified to and discussed during the trial made this request pertinent and of added importance to plaintiff. He was entitled to have the jury instructed as requested. Failure to do so was error.

As the case will be sent down for retrial it is inadvisable and unnecessary to review the exhaustive discussion and argument of evidence to which counsels’ briefs are largely devoted and which relate largely to the facts in issue, or to pass upon the many other assignments of error, some of which do not call for serious consideration, while any that might otherwise demand discussion are not likely to arise upon retrial of the case.

For the reasons stated the judgment is reversed with costs to plaintiff and a new trial granted.

Ostrander, C. J., and Bird, Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


author: Ostrander, C. J.

text:
    LOZON v. McKAY.
    1. Specific Performance — Vendor and Purchaser — Land Contract — Forfeiture.
    The vendee in a land contract which has heen forfeited, unless relieved therefrom, has no right to specific performance.
    2. Equity — Land Contract — Forfeiture—Relief.
    Equity will sometimes relieve against forfeiture, and, ordinarily when incurred by mere nonperformance of a pecuniary obligation at the day, when time is not of the essence of the. contract, when performance by the defaulting party can be secured, and his general conduct has not been such as to render it unjust.
    3. Vendor and Purchaser — Forfeiture — Ouster and Entry — Landlord and Tenant.
    As to whether ouster and entry can be effected by the vendor in a land contract making arrangements with the vendee’s tenant to hold for him after forfeiture — quaere.
    4. Specific Performance — Forfeiture — Tender — Relief from Forfeiture.
    On vendee’s bill for specific performance after forfeiture, the money due ought to have been tendered before suit was begun, or, in any event, brought into court so that the court might be certain that the terms upon which relief from forfeiture was granted would be complied with.

      5. Same — Amendments—Conditional Decree.
    Treating the bill for specific performance after forfeiture as amended to ask for relief from forfeiture, the decree of the court below dismissing the bill will be modified, on appeal, upon condition that within 60 days the vendee pay the unpaid purchase price, with interest, taxes, and costs of both courts, the vendor being required to execute conveyance in accordance with the contract; otherwise decree of court below to stand.
    Appeal from Ogemaw; Sharpe, J.
    Submitted April 16, 1918.
    (Docket No. 94.)
    Decided October 7, 1918.
    Bill by Archie Lozon and another against James McKay for the specific performance of a land contract. Defendant filed a cross-bill to set aside the contract for default. From a decree for defendant, plaintiffs appeal.
    Modified, and conditional decree entered for plaintiffs.

      James B. Boss and C. W. Hitchcock, for plaintiffs.

      William T. Yeo, for defendant.
   Ostrander, C. J.

The contract, the subject-matter of this suit, had been forfeited, pursuant to its terms, after the admitted default of the vendees. The vendees, plaintiffs, ask the court to specifically enforce the contract. It is not true that defendant is asking equity to assist him in forfeiting the rights of plaintiffs. Forfeiture was accomplished before the bill was filed. Unless plaintiffs are relieved, defendant’s right to the decree which was rendered is clear. Pendill v. Mining Co., 64 Mich. 172.

Plaintiffs do not, in terms, ask the court to relieve them of the forfeiture, which of course must be done before any right based upon the contract can be enforced, and this fact and the attitude of plaintiffs must, I think, have affected the trial judge in concluding that plaintiffs cannot be relieved. In a short opinion, returned with the case but not printed, the learned trial judge said:

“The question presented in this case is whether after defendant has served notice of forfeiture of plaintiffs’ rights as a purchasér under a land contract for neglect to make payments as therein provided, this court has the power on a bill filed by plaintiffs for specific performance, to relieve plaintiffs from such forfeiture. * * * As I intimated at the hearing, if I could grant equitable relief to the plaintiffs, I would gladly do so but courts can but construe and then force (enforce?) the provisions of contracts as made. All the rights of plaintiffs have become forfeited at law.”

Equity will sometimes relieve against forfeiture. It will do so, ordinarily, when it is incurred by the mere nonperformance of a pecuniary obligation at the day, when time is not of the essence of the contract, either made so by the nature of the subject-matter or by the express terms of the agreement, when performance by the defaulting party can be secured and when his general conduct has not been such as to render it unjust that he should be relieved.

The agreement here in question does not, in terms, make time essential, beyond the ordinary fixing of due days and requiring the plaintiffs to pay the taxes. The reasons for forfeiting stated in the notice are failure to pay taxes and to pay the installments called for by the terms of the contract. Only one installment of interest Was paid, and that in November, 1914. The contract was made in April, 1914, and called for semi-annual payments of interest. Notice of forfeiture was given in July, 1916, at which time $200 of principal had been due for more than three .months. Plaintiffs paid the taxes for 1914 and 1915, but have paid none since then. They have never tendered or offered to pay the sums called for by the contract. One plaintiff testified that arrangements have now been made to borrow the money on the land to pay the contract debt.

While it is claimed that defendant, after forfeiture, made arrangement with plaintiffs’ tenant to hold for him, and is tnerefore in possession of the land, so that forfeiture and entry thereafter were complete when the bill was filed, it is at least doubtful if ouster and entry can be in ouch manner effected.

it is apparently as uncertain now as it has been for years whether the plaintiffs can pay what is due to defendant. It ought to have been tendered before suit was begun, in which case it is likely that no suit would have been necessary. The money should, in any event, have been brought into court, so that the court might be certain that the terms upon which relief from forfeiture was granted would be complied with.

It is clear that a decree for specific performance can not be made. Treating the bill as amended so as to ask for relief from the forfeiture, and extending to their limits the rules- governing the granting of relief in such cases, the decree below may be modified so as to relieve plaintiffs from the forfeiture upon condition that within 60 days after the entry of decree in this court they pay to defendant, or to the register of the circuit court for the county of Ogemaw, the unpaid purchase price of the land, with all arrearages of interest and any sum paid by defendant for taxes upon the land, with costs of both courts, upon which payment defendant shall execute and deliver a conveyance in accordance with the contract; in default of which payment defendant shall have the relief granted him in the court below, with costs of both courts.

Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred with Ostrander, C. J. Bird, J., concurred in the result.


author: Bird, J.

text:
    ALLSWEDE v. CENTRAL WAREHOUSE CO.
    1. Warehousemen — Evidence — Conversion — Replevin Proceedings — Description op Property.
    In a suit against a warehouseman for conversion of beans stored with him, where the defense was that they had been taken by replevin, the replevin proceedings were inadmissible where the writ called for 250 bags of beans described as lot 330, whereas plaintiff’s warehouse receipt called for 250 bags of beans described as lot 233.
    2. Same — Replevin Proceedings — Amendments.
    Permission to amend the description in the writ and return to correspond with the warehouse receipt was properly refused, since plaintiff was not a party to the replevin case, and an amendment in the description of the property would release the sureties on the replevin bond.
    3. Same — Replevin—Notice to Owner — Release prom Liability —Statutes.
    Notice by telephone by warehouseman to the owner of beans that they had been taken from his possession by replevin was not a compliance with the statute (2 Comp. Laws 1915, § 6559) providing for release from liability by notice in writing served personally or by registered letter.
    4. Same — Compromise and Settlement — Estoppel.
    Plaintiff was not estopped from suing warehouseman for conversion of beans by compromise negotiations for payment which failed, since one is not concluded unless the terms of the negotiation are carried out in whole or in part.
    Error to Saginaw; Gage, J.
    Submitted June 7, 1918.
    (Docket No. 76.)
    Decided October 7, 1918.
    Rehearing denied January 31, 1919.
    Case by William H. Allswede against the Central Warehouse Company for the conversion of certain beans. Judgment for plaintiff on a directed verdict. Defendant brings error.
    Affirmed.

      E. L. Beach, for appellant,

      Devereaux & Vincent (Purcell & Tmvers, of counsel), for appellee.
   Bird, J.

Plaintiff stored 250 bags of beans in defendant’s warehouse, in the City of Saginaw, on February 24, 1915, and took a receipt therefor, describing them as Lot Number 233. Later when he demanded them he was advised by defendant that they had been replevied by the Henry W. Carr Company. Plaintiff thereupon referred the matter to his attorney for investigation. It developed that the Henry W. Carr Company claimed that plaintiff had sold the beans to it and that the suit in replevin was for the purpose of enforcing delivery under the sale. There was some talk between counsel for the. parties about an adjustment of the matter, but it was never carried out and this suit was begun to recover the value of the beans. After the testimony was closed both parties requested a directed verdict. The trial court was of the opinion that the defendant had not made out its defense and that it was guilty of conversion of the beans. Plaintiff was awarded a verdict of $3,136.83.

Defendant’s principal defense was that the beans had been taken from its possession by a writ of replevin issued in favor of the Henry W. Carr Company. Plaintiff objected to the admission of the replevin proceedings because the writ called for 250 bags of beans described as Lot 330, whereas the plaintiff’s warehouse receipt called for 250 bags of beans described as Lot 233. The trial court held the objection good and excluded the proceedings. Defendant’s counsel, who was plaintiff’s counsel in the replevin case, then asked permission to amend the description in the writ and return,, to correspond with the description in the warehouse receipt. The defendant in this case, who was also the defendant in the replevin case, signified its consent to this amendment. The trial court held this ought not to be done because the plaintiff in this suit was not a party to the replevin case, and because an amendment in the description of the property named in the writ and return would release the sureties on the replevin bond. Plaintiff’s counsel insist that whether the court, was right or wrong in his refusal to permit an amendment in the replevin case, an assignment of error in this case cannot raise the question. The conclusion of the trial court with reference to the release of the sureties is supported by the holding of this court in Bolton v. Nitz, 88 Mich. 354, where the point was directly involved and decided. The denial of the motion to amend was not error.

Defendant’s counsel also contends that it is absolved from any liability by reason of the following statute:

“Whenever any goods, wares, merchandise, or other personal property shall be taken from the possession of any warehouseman, by writ of attachment or replevin, or other legal process, said warehouseman shall at once give written or printed notice thereof to the owner or person named in the warehouse receipt given for said property, or in case said warehouseman shall have received notice of any transfer of said property, and of the name and address of the transferee, he shall also give to said transferee like notice of said suit. Said notice may be delivered personally or sent by registered mail, postpaid. If such notice shall be given, as aforesaid, said warehouseman shall not in any way be liable on account of said suit to said owner or transferee of said property, or to the holder of ally receipt or voucher given for the same, saving and reserving to such owner, or holder the legal remedies for the recovery of the said goods, wares, merchandise and other personal property from any person unlawfully detaining the same, or for damages against any person unlawfully taking the same.” 2 Comp. Laws 1915, § 6559.

Plaintiff’s counsel reply that the statute does not apply because the notice required by the statute must be in writing, and served personally or by registered mail. The proofs show that all the notice which the plaintiff received of the replevin proceedings was over the telephone. We do not think this method of notifying plaintiff was such a compliance with the statutory requirement as to entitle defendant to the protection of the statute.

The further point is made by counsel for defendant that whatever defect there may have been in the description of the property in the replevin proceedings and in giying notice under the statute were waived by plaintiff. It appears that after plaintiff was notified over the telephone that his property had been taken by a writ of replevin he turned the matter over to his counsel, who went to Saginaw to make an investigation. He talked the matter over with counsel for the Henry W. Carr Company and was assured that plaintiff would get his pay if he would draw a draft on the Henry W. Carr Company for the price of the beans. In pursuance of this assurance a draft was drawn but was unhonored and a second draft was drawn and this was refused. We are unable to see how these negotiations would estop the plaintiff from maintaining the present action unless the promise to pay for the beans was carried out by the Henry W. Carr Compány, or .some effort made to carry it out. One is not concluded by negotiations for compromise unless the terms of the negotiation are carried out in whole or in part. 8 Cyc. p. 534.

Other assignments are argued but we think they are rendered unimportant by the conclusions we have reached on the questions already considered.

The judgment is affirmed.

Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred with Bird, J. Ostrander, C. J., concurred in the result.


author: Bird, J. Brooke, J.

text:
    NICHOLS v. GRAND TRUNK WESTERN RAILWAY CO.
    1. Railroads — Crossing Accident — Personal Injuries — Negligence — Question for Jury.
    In an action for personal injuries caused by a collision between plaintiff’s automobile and defendant’s train at a crossing in a village, evidence that the train was running 30 miles an hour and that the statutory signals were not given, held, to present a question of fact for the jury as to defendant’s negligence.
    2. Same — Contributory Negligence.
    Where plaintiff’s automobile stopped within 10 feet of the side track waiting for an east-bound train to pass, and, after looking and listening, proceeded to cross, although view of west-bound track was obstructed, and was struck and injured by west-bound train, it cannot be said that plaintiff was guilty of contributory negligence, as matter of law, for failure to again stop on side track or space between tracks to make observations before proceeding. Ostrander, C. J., and Brooke, J., dissenting.
    See notes in 21 L. R. A. (N. S.) 794; 29 L. R. A. (N. S.) 924; 46 L. R. A. (N. S.) 702.
    Error to Cass; Des Voignes, J.
    Submitted June 18,1918.
    (Docket No. 47.)
    Decided October 7, 1918.
    Case by Ida M. Nichols against the Grand Trunk Western Railway Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Harrison Geer (R. R. Weaver, of counsel), for appellant.

      M. L. Howell, V. G. Jones, and Walter C. Jones, for appellee.
   Bird, J.

Plaintiff and her husband are farmers, and reside some distance south of the village of Marcellus. On November 14, 1916, she, her husband and son drove to the village in their Ford automobile.. After attending to their errands they started for home at about 3:30 in the afternoon. The son was at the wheel and plaintiff sat in the rear seat with her husband. They proceeded south on Center street until they reached the two-track railway of defendant where they stopped to allow an east-bound freight train to pass. After the train cleared the crossing they looked and listened to discover whether a train was approaching on the west-bound track. They discovered nothing and proceeded on their way, only to be struck a few moments later by a rapidly moving west-bound special, composed of a locomotive and caboose. The result of the collision was the death of the son, serious injury to the plaintiff and destruction of the machine. Plaintiff brought suit to recover compensation for her injuries and was awarded a verdict of $3,000, on the theory that defendant was guilty of negligence in the operation of its train.

The principal questions raised by defendant are:

(1) Was defendant negligent in the operation of its train?
(2) Was plaintiff guilty of contributory negligence?

Counsel contends that no actionable negligence upon the part of the defendant was shown and that the trial court was in error in refusing to direct a verdict in its behalf on that question. Plaintiff’s testimony shows that defendant’s double track railway extends through the village of Marcellus in a northeasterly and southwesterly direction and crosses Center street at an angle of fifty-three and one-half degrees; that as they approached the crossing an eastbound freight train was either passing or stood on the south main track near the crossing; that one or two cars stood upon the side track north of the westbound track, which, together with the buildings of the Marcellus milling plant, entirely obstructed their view of the west-bound track east of the crossing until they had crossed the side track. It was further shown that the defendant operated its train over the crossing at a speed of 30 miles an hour without giving any warning of its approach and without any warning from the crossing signals. If plaintiff’s testimony is to be accepted that defendant operated its train over the crossing in question at a rate of 30 miles an hour without giving the statutory warning, it opened the way for the jury to find that defendant operated its train in a negligent manner.

Counsel argues, however, at some length, that plaintiff’s testimony did not make a case for the jury because it did not show that the statutory signals were not given; that the testimony relied upon to establish this fact was negative testimony. We cannot accept this version of the evidence. There were at least two witnesses who gave positive testimony that the signals were not given. Other testimony to the same effect was more or less uncertain, but was of some value in determining the question. The question of defendant’s negligence was clearly within the domain of fact and, therefore, one for the jury. Crane v. Railroad Co., 107 Mich. 511; Hinkley v. Railway Co., 162 Mich. 546; Tietz v. Railway Co., 166 Mich. 205.

Was plaintiff guilty of contributory negligence as a matter of law? Plaintiff’s automobile was driven down Center street and stopped within 10 feet of the side track. After waiting for the east-bound train to pass they looked and listened, and hearing nothing they proceeded on their way. Counsel argues that plaintiff did not stop her automobile at a place where the view was unobstructed as she should have done. Where plaintiff stopped, her view of the track to the east of the crossing was so completely obscured by the buildings of the milling plant and by the cars on the side track that she could get no view of the westbound track until she passed the cars on the side track, as they stood very close to the highway. Had she stopped further north the view would have been no better. The distance between the side track and the west-bound track was less than 20 feet, and counsel argues that plaintiff should have driven into that space and stopped. We do not think we can say as a matter of law that plaintiff was guilty of contributory negligence for not driving on to the side track or into the space between the west-bound- track and side track to make observations before proceeding to cross the tracks. Ordinarily when one gets within 10 feet of a railroad track and stops, his sense of hearing, if normal and diligently used, will determine whether it is safe to proceed. This crossing at the time, however, was beset with many difficulties. It is possible that plaintiff ought to have done just what counsel suggests, but if it were her duty to do so it was a question of fact to be determined by the jury, and not by the court. Whether she should have driven on to the side track and taken the chances of the cars being shunted against her, or have driven into the open space between the two tracks with its attendant dangers to make observations is a question about which reasonable minds might well differ. Another fact which the jury had a right to take into consideration in determining the question was the fact that neither of the crossing bells was ringing at the time.

Counsel urge that this case is ruled by Sanford v. Railway Co., 190 Mich. 390. In the case cited there were no such obstructions to shut off the view of the traveller as in the present case and neither was it necessary in that case for plaintiff to drive onto a side track or into a narrow space between two tracks in order to obtain a view of the main track. Had Sanford exercised the care that the plaintiff did in stopping his car he probably would not have been in collision with the train.

We think the trial court was right in submitting both of these questions to the jury. The verdict is affirmed.

Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred with Bird, J.

Brooke, J.

(dissenting). I am of opinion that the facts in this case bring it clearly within the principle announced in Sanford v. Railway Co., 190 Mich. 390. The judgment should be reversed.

Ostrander, C. J., concurred with Brooke, J.


text:
    TOWNSHIP OF HART v. NORET.
    1. Indemnity — Judgment—Res Judicata.
    The judgment against a township, in an action for personal injuries caused by a defective railing on a bridge, was conclusive as to the existence of the defects, the injury to plaintiff therein, that he was free from contributory negligence, and the amount of damages awarded.
    2. Same — Admissions—Directed Verdict.
    In an action by the township for indemnity, on the theory that defendant was responsible for the defective railing, defendant’s admission that he took the railing away and erected the one in question, in addition to issues conclusively settled in the ease against the township, made the case against defendant complete, requiring directed verdict for plaintiff.
    See notes in 40 L. R. A. (N. S.) 1165; L. R. A. 1916 F, 86.
    Error to Oceana; Sullivan, J.
    Submitted June 12, 1918.
    (Docket No. 25.)
    Decided October 7, 1918.

      Case by the township of Hart against Edwin A. Noret for indemnity against a judgment for personal injuries. Judgment for defendant. Plaintiff brings error.
    Reversed, and judgment entered for plaintiff.

      Hall & Greene and Hall, Gillard & Temple, for appellant.

      F. E. Wetmore, for appellee.
   Bird, J.

Defendant Noret, in April, 1912, moved several buildings in the village of Hart, over a millrace bridge, situate in the public highway. In doing so, it became necessary, on account of the width of the buildings, to remove the railings on the bridge. After getting the buildings across, his workmen, in obedience to his orders, either replaced the old railings or erected new ones. On July 12, 1912, William McRae, while crossing the bridge on a bicycle, ran into an accumulation of sand which stopped or slowed down his machine. In attempting to steady himself he took hold of the railings, they gave away with him and he was precipitated into the stream 20 feet below, causing him serious injury. He sued the township and the Gurneys, the owners of the mill, on the theory that they were negligent in permitting defective and insecure railings on the bridge, and recovered against both defendants a substantial verdict. After the suit was commenced and before trial the township notified defendant in writing that the suit had been commenced and requested him to defend the same, and notified him that it would hold him liable for any judgment that might be rendered against it. Noret paid no attention to this notice and made no defense. The judgment recovered against the Gurneys and the township was afterwards reviewed in this court and affirmed (McRae v. Township of Hart, 179 Mich. 325). The township then paid the judgment and sued defendant to enforce indemnity on the theory that the defendant was responsible for the condition of the barriers. The defendant interposed a demurrer to the declaration, which was sustained in the trial court, but was afterwards reversed in this court (191 Mich. 427, L. R. A. 1916F, 83). Much controversy was indulged in throughout the trial concerning what questions were conclusively settled against the defendant by McRae’s case against the township. At the close of the testimony the township requested a directed verdict, but the trial court was of the opinion that defendant’s liability was a question of fact. He, therefore, submitted it to the jury and they returned a. verdict for the defendant.

1. In order to determine whether the trial court should have granted 'plaintiff’s request, it will be necessary to examine the state of the proofs at the close of the testimony. Applying the general rule, the judgment against the township was conclusive in this case on the following propositions:

(a) As to the existence of the defects which caused the damage.
(b) The injury to McRae..
(c) That McRae was free from contributory negligence.
, (d) The amount of damages awarded McRae.

The only question, therefore, open upon this inquiry was the question of the liability of defendant. 22 Cyc. p. 106; City of Lansing v. Railroad Co., 129 Mich. 403; Grant v. Maslen, 151 Mich. 466 (16 L. R. A. [N. S.] 910); Grand Rapids Lumber Co. v. Blair, 190 Mich. 518.

The defendant himself testified he took away the railings and that his workmen erected the ones in question. The recovery against the township was had upon the theory that these barriers were defective and insecure. This testimony, therefore, in addition to the issues which were conclusively settled in the case against the township made the case complete against the defendant, inasmuch as no claim was made by him that any change took place in the railings before McRae’s injury. Defendant’s admission that he was responsible for the barriers, which were adjudged in the other case to be the cause of McRae’s injury, left no question of fact to be determined by the jury. The court should have granted plaintiff’s request.

The judgment for defendant is reversed. A judgment will be entered in the trial court in favor of plaintiff for the amount of the judgment and costs in the case of McRae against the township of Hart et al.

Plaintiff will recover its costs in this case in both courts.

Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred with Bird, J. Ostrander, C. J., concurred in the result.


text:
    SPONENBURGH v. GILLESPIE.
    Municipal Corporations — Police Department — Civilian Emíployees — Discharge—Right to Hearing.
    Under Act No. 416, Local Acts 1901, providing for the police government of the city of Detroit, the superintendent of the signal service and his assistant were not members of the police force, entitling them to a hearing on charges preferred before the police commissioner before discharge from the service; they being merely civilian employees of the police department.
    Appeal from Wayne; Hally, J.
    Submitted June 14, 1918.
    (Docket No. 24.)
    Decided October 7, 1918.

      Bill by Charles L. Sponenburgh and another against John Gillespie, commissioner of police of the city of Detroit, to enjoin the dismissal of plaintiffs from the police department. From a decree for plaintiffs, defendant appeals.
    Reversed, and bill dismissed.

      A.B. Hall and Frank W. Atkinson, for plaintiffs.

      Allan H. Frazer, for defendant.
   Bird, J.

Defendant, as police commissioner, gave plaintiffs notice that they would be discharged on July 1, 1916, from their respective positions with the police department of the city of Detroit. On June 28th they filed this bill praying for a writ of injunction to prevent such removal. Plaintiffs have been connected with the department for several years, and at the time of their discharge plaintiff Sponenburgh was acting as superintendent of the signal service of the department, and plaintiff Cocup was acting as his assistant. Their claim is that they cannot be dismissed by the commissioner without charges being preferred and an opportunity given to be heard in their defense. They base this contention on section 9 of the act, the material part of which reads:

“The qualifications, enumerations and distribution of duties and mode of trial and removal from office of each officer and member of said police force shall be_ particularly prescribed by rules and regulations of said commissioner of police, and no person shall be appointed to or hold office in the police force who is not a citizen of the city of Detroit, shall not have resided in the State of Michigan two years next preceding his appointment, who cannot read and write the English language, or who has ever been convicted of any crime: Provided, That no person except the superintendent, deputy superintendent, detectives, the attorney, the surgeon, secretary and property clerk, shall be removed from said force, except upon written charges preferred against him to the commissioner of police, and after opportunity of being heard in his defense.” * * * Act No. 416, Local Acts 1901.

Defendant takes the position that plaintiffs are not members of the police force within the meaning of the act, but are civilian employees of the department and, therefore, may be summarily dismissed.

Section 1 of the act provides:

“That the powers and duties connected with and incident to the police government and discipline of the city of Detroit shall be vested in and exercised by one commissioner of police, a superintendent and other officers, and patrolmen, as hereinafter provided.”

Section 5 confers on the commissioner authority to appoint officers and patrolmen, and section 9 prescribes certain qualifications as a prerequisite to appointment to the police force.

A study of the act gives the impression that it was framed with the idea of making membership in the force attractive to qualified men. To promote the efficiency of the force the act provides that official positions shall be filled by promotions from the ranks. Also provides accident insurance for them. Freedom from dismissal is guaranteed to them unless charges are preferred and opportunity for a hearing given. These and other provisions make for the good of the service, but they appear to be reserved for the benefit of the members of the force.

We think it would hardly be contended that the employees engaged in setting the telegraph poles and stretching the wires thereon were members of the force and entitled to these privileges, and yet why not, if the man who directs their work is a member of the force? Neither the superior nor inferior connected with the telegraph line is filling any position created by the statute, nor is either doing any police duty. The only reference made by the act to the business in which they are engaged is found in section 7 where, defining the powers of the commissioner, it says:

“He shall have the custody and control, of all public property, books, records and equipment belonging to the police department, and shall have power to erect and maintain such lines of telegraph in such places within said city as for the purposes of police shall deem necessary.” * * *

It must have been understood by the legislature that an organization of this character in a city the size of Detroit would necessarily be obliged to employ agents and servants to assist in its operation. Indeed, section 9 gives evidence of this when it says that:

“All other salaries and compensation to the officers, appointees and employees of the department shall be prescribed and determined by the commissioner of police and shall be paid semi-monthly to the persons entitled thereto.”

Had the legislature intended that the employees of the department should be members of the police force and entitled to the privileges thereof, we assume it would have so indicated by some appropriate language.

We are of the opinion that section 1, construed with other sections of the act, restricts the membership of the force to the officials and patrolmen whose positions have been created by the terms of the act. It is true, plaintiffs were officials in the business in which they were engaged, but the official positions which they held were neither created nor recognized by the statute. Our conclusion is that plaintiffs are not members of the police force but are civilian employees of the police department. In support of this interpretation, see People, ex rel. Sweeney, v. York, 43 App. Div. 444 (60 N. Y. Supp. 208).

The chancellor who heard this case below was of a different opinion. He was inclined to the opinion that plaintiffs were members of the police force. In the closing paragraph of his opinion he says:

“Was the commissioner justified in removing these men without a hearing? In two places in the act the exceptions are made to the general rule. In one case a negative precedes the exception, and the use of a negative in the statute makes the statute imperative.” Citing Connecticut Mutual Life Ins. Co. v. Wood, 115 Mich. 444.

The chancellor’s conclusion is quite right, if it be conceded that plaintiffs are within the class to which the exception refers, but we are unable to agree with him that plaintiffs are within that class.

With the main question decided we think it will be unnecessary to consider the other questions discussed. The decree must be reversed and one entered in defendant’s behalf denying relief to plaintiffs and dismissing their bill. No costs will be allowed.

Ostrander, C. J., and Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


text:
    FOWLER v. STUBBINGS.
    1. Equity — Pleading — Quieting Title — Jurisdiction — Appeal and Error.
    A bill to quiet title to land, reciting that plaintiff acquired title by tax deeds, that he served proper notice to redeem, that no redemption was made, and that he had peaceable entry, and defendant’s answer denying notice as to him, presented an issue which might be settled by the appellate court; equity having jurisdiction to quiet titles to land, and the bill not having been demurred to.
    2. Taxation — Redemption—Notice — Registered Letter — Sheriff’s Return.
    Under section 140 of the tax law (Act No. 142, Pub. Acts 1905), in force at the time service of notice to redeem was made by the sheriff by registered letter, providing for filing by the sheriff of receipts received for such letters with his return, where the receipt received by the sheriff and filed was signed, not by defendant, to whom the letter was sent, and who denied receipt of notice, but by a stranger, held, that the service was insufficient.
    Appeal from Muskegon; O’Brien, J., presiding.
    Submitted April 16, 1918.
    (Docket No. 104.)
    Decided October 7, 1918.
    Bill by John C. Fowler against Wilson H. Stubbings and others to quiet title to land sold for delinquent taxes. Defendant Stubbings filed a cross-bill to redeem from said sale. From a decree for defendant, plaintiff appeals.
    Affirmed.

      Charles B. Cross and Wallace Foote, for plaintiff.

      Alex. Sutherland, for defendant Stubbings.
   Ostrander, C. J.

One who has acquired deeds from the auditor general for State tax lands, who claims to have given the proper notice to those appearing to be entitled thereto, who has waited the requisite time and no redemption has been made, and who has peaceably entered into possession of the land, is not often, if ever, entitled to maintain a bill in equity to quiet his title as against any right or interest existing when his deeds became effective. This is the position the plaintiff in this suit claims that he occupies. It is true that in Flint Land Co. v. Godkin, 136 Mich. 668, and in Flint Land Co. v. Fochtman, 140 Mich. 341, it was held that under the circumstances appearing the demands of defendants that the bills be dismissed ought to be refused. But in Triangle Land Co. v. Nessen, 155 Mich. 463, a decree overruling a demurrer to a bill such as is filed in the instant case was reversed. The reasons there given for the conclusion reached would require the court to sustain a demurrer here, if one had been filed. The record title of the defendants is not a cloud upon the title which plaintiff derived through the tax proceedings. No other cloud, or claim, or interest, is set up in the bill, and no question of title was in fact in issue at the hearing. What was decided was that as to one defendant, who answered, plaintiff had not given him the notice which the tax law requires to be given and that, in consequence, he is now entitled to redeem the land. It is manifest that if this defendant had, or has, the right to redeem, the tax law shows him the road. He does not need the interference, or the aid, of a court of equity. I am therefore impressed that this court ought to dismiss the case out of court, leaving the parties to proceed as they may be advised in a court of law. I am impressed that neither the bill nor the bill and answer present a matter within the proper jurisdiction of a court of equity. My associates are of opinion that, a court of equity having jurisdiction to quiet titles to land, the bill not having been demurred to, it and the answer present an issue which may be settled here.

Considering the question decided by the trial court, it is to be observed that while defendant Stubbings appears to be the grantee in a quitclaim deed, dated June 3,1914, recorded June 15,1914, there is no testimony, no evidence, in the record tending to prove that, when plaintiff gave the notices, defendant Stubbings had any interest in the land. Nor, upon this record, does the quitclaim deed referred to purport to have been executed by any one owning or having any interest in the land. And yet the court found, among other things, that “defendant, Wilson H. Stubbings, is the record owner in fee simple” of the land. Counsel for plaintiff, appellant, do not, however, pay attention to any subjects excepting two, which are (1) that the tax notice was properly served upon defendant Stubbings, (2) that it was not necessary for the sheriff who served the notices to return that no one was in possession of the premises. These are the questions considered in the opinion of the learned trial judge, and seem to have been the only ones he was called upon to consider.

Defendant Stubbings lived in Glenellyn, Illinois, with his son, Wilson H. Stubbings, Junior, a. man 25 years old, and a daughter. The registered letter containing the notice was correct!y addressed to defendant by the sheriff of Muskegon county, and was received for registration by the postmaster at Muskegon, January 29, 1909, postage paid. It is plaintiff’s contention that, having delivered the letter to the postmaster and taken his receipt therefor, service upon defendant Stubbings was completed; that under the statute no other evidence of service is required. In fact, the letter was delivered at Glenellyn, Illinois, at the home of defendant, but was there received by and receipted for by his son and the registration receipt made a part of the sheriff’s return so shows. Defendant testified that it was not brought to his attention, and that he first learned that such a service had been attempted in the year 1914.

The present statute upon the subject is (1 Comp. Laws 1915, § 4138):

“That if the person or persons entitled to such notice, or any of them, shall be nonresidents of this State, if from the said record aforesaid, or from inquiry, the sheriff can obtain the postoifice address of such person or persons or if said addresses be known to him, he shall either send to such nonresident person or persons a copy of said notice by registered letter, and return the receipt or receipts of the postmaster received for said letter or letters with his return to the county clerk’s office, or said sheriff shall cause to be served personally on such person or persons aforesaid a copy of the said notice.”

The law in force in January, 1909, was section 140 of the tax law of 1893 as amended (Act No. 142, Pub. Acts 1905) and the language was—

“he shall send to such person or persons aforesaid a copy of said notice by registered letter, and return the receipt or receipts received for said.letter or letters with his return to the county clerk’s office.”

It is probable that the language employed in both of these sections has the same meaning, and that it refers to both the receipt given by the postmaster at the office of mailing and that given where the letter is delivered. The “receipt received for said letter” is the controlling language. In the instant case the sheriff was advised by the receipt which came back to him that the letter had been receipted for, not by defendant, nor by any one purporting to act as his agent, but by a stranger, and that the delivery appeared to have been made in violation of rules of the postoffice department. It is said, in argument, that the sheriff had the right to suppose that Wilson H. Stubbings and W. H. Stubbings, Junior, meant the same person, and was not called upon to send another notice. It must be observed that the statute does not make any return of service other than prima facie evidence and that the sheriff’s return may be contradicted. Winters v. Cook, 140 Mich. 483; Gogebic Lumber Co. v. Moore, 157 Mich. 499. And, as was remarked by the trial judge, it is doubtful if this return is prima facie evidence of service upon the proper person.

It must be held that the sérvice was not good, and that the decree should be affirmed.

Bird, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


author: Kuhn, J.

text:
    BREVOORT v. WAYNE CIRCUIT JUDGE.
    1. Appeal and Error — Bill of Exceptions — Time to Settle— Extension oe Time — Statutes—Court Rules.
    Under the provisions of the judicature act (section 62, chap. 18, Act No. 314, Pub. Acts 1915, 3 Comp. Laws 1915, § 12634) and Circuit Court Rule No. 66, there are three possible stages contemplated in connection with the allowance of time for settling bills of exceptions: (1) A party is always entitled to 20 days as a matter of right; (2) on the production of a certificate from the court stenographer to the effect that a transcript of the testimony has been ordered and will be furnished as soon as possible, an extension may be granted, and, if not more than 60 days is requested, may be granted on ex parte application; (3) on the expiration of the 80 days, on showing of good cause made by affidavit on special motion after notice to the adverse party, it is within the discretion of the court to grant a further extension; also parties may, by stipulation, within the statutory limits, arrange extension between themselves.
    2. Same — Stenosrapher’s Certificate.
    The statutory provision requiring the stenographer’s certificate applies only to the first extension beyond the 20-day period.
    3. Same — “Good Cause” Shown — Discretion of Court.
    The “good cause” not being limited to the inability of the stenographer to seasonably complete the transcript, and there being nothing in the statute or court rule which deprived the judge of power to grant an extension, if sufficient cause existed, the court was in error in holding that he was without discretion, and should have decided a motion to extend the time solely on the question of whether or not good cause was shown.

      4. Same.
    A showing that because of disagreement with counsel, defendant, who was 74 years of age and in feeble health, selected new counsel, that within two weeks after the transcript was received it was delivered to counsel, who, while familiarizing himself with the case, inadvertently allowed the time for settling the hill of exceptions to expire, held, sufficient to support an order granting a further reasonable extension of time.
    Mandamus by Henry N. Brevoort and another to compel Frederick W. Mayne, acting circuit judge of Wayne county, to grant an extension of time to settle a bill of exceptions.
    Submitted October 8, 1918.
    (Calendar No. 28,437.)
    Writ granted October 29, 1918.

      A. J. GroesbecJc, for plaintiffs.

      Orla B. Taylor, for defendant.
   Kuhn, J.

Plaintiffs are seeking a writ of mandamus directing the defendant to grant an extension of time to settle the bill of exceptions in a certain case, tried before him while sitting in the Wayne circuit in June, 1917, wherein Ralph Phelps and Orla B. Taylor were plaintiffs and the plaintiffs here were defendants. The case was an action of ejectment brought to recover a strip of land on Grosse Isle, and grew out of a boundary line dispute. A verdict was directed in favor of plaintiffs on June 19, 1917. No motion was made for a new trial. The proceedings relative to the bill of exceptions were as follows:

June 21, 1917: Order entered staying proceedings for 20 days, and granting 80 days after entry of judgment to settle bill of exceptions (no certificate of the court stenographer was filed).

June 25, 1917 : Judgment entered.

July 20, 1917: The order of June 21st being in violation of the provisions of section 12634, 3 Comp. Laws 1915, a stipulation was signed extending time within which to settle bill of exceptions 60 days from entry of judgment.

July 20, 1917: Certificate issued by court stenographer that a transcript of the testimony had been ordered on June 19, 1917, and that the same would be furnished as soon as possible.

• August 3, 1917: Above stipulation and certificate filed.

August 17, 1917: Second certificate of court stenographer filed, stating that he had been unable to get out the transcript and would not be able to complete it by August 19th.

August 17_, 1917: Order signed by Judge Hally, of the Wayne circuit, extending the time for settling the bill of exceptions 90 days. (This order was not based on affidavit and special motion after notice to adverse party, nor on stipulation.)

August 21, 1917: Above order filed.

September 26, 1917: Motion filed to vacate and set aside above order, accompanied by affidavits.

September 28, 1917: Motion heard. Order made by Judge Hally that the time to settle the bill of exceptions should expire on October 9, 1917, unless there should have been filed prior to that date the certificate of the court stenographer that he was actually engaged in preparing the transcript and would complete the same with all convenient speed.

September 29, 1917: Certificate made by court stenographer that transcript had been ordered by defendants and all conditions complied with, and that the work of getting out the record was proceeding as rapidly as possible.

October 10, 1917: Above certificate filed.

December 24, 1917: Motion. for further extension of time to settle bill of exceptions filed.

December 31, 1917: Motion noticed for hearing on January 5, 1918.

January 23, 1918: Motion and supporting affidavits, also affidavits in opposition, received by defendant at Charlevoix, together with briefs for respective parties.

January 31, 1918: Opinion and order denying motion made and signed by defendant.

February 7, 1918: Opinion and order filed.

May 15, 1918: Application for mandamus filed in this court.

In his order denying the motion, after reviewing the history of the case since verdict, defendant said:

“Reference to the dates shows that forty-one days elapsed since the last date upon which bill of exceptions could be settled under Judge Hally’s order, and sixty-seven days since the receipt of the transcript of testimony was taken by the defendant and over six months since the verdict and judgment entered thereon, prior to date of making this motion.
“Law.
“Under the above facts the court has no discretion. Guthrie v. Leelanau Circuit Judge, 197 Mich. 321; Boyne City Hardware Co. v. Charlevoix Circuit Judge, 197 Mich. 374.
“In the latter case it was said:'
“ ‘It is quite clear that the discretion of the circuit' judge may be exercised only within the limits fixed by the statute and the rule. * * * Parties desiring to review judgments must act seasonably and courts may exercise discretion only within the statutory limitations.’
“The motion is therefore denied.”

Section 62, chap. 18, of the judicature act (being section 12634, 3 Comp. Laws 1915), provides as follows:

“The court or the circuit judge at chambers may allow such time as shall be deemed reasonable to. settle such exceptions and reduce the same to form:. Provided, That no more than twenty. days shall be allowed for such purpose, except upon the production of a 'certificate from the stenographer of said circuit stating that thn party desiring such extension.has or-, dered a transcript of the testimony necessary for the preparation of said bill of exceptions, and that the same will be furnished as soon as possible by said stenographer. If a motion for a new trial is made within said twenty days, and such motion be denied, the time to settle a bill of exceptions may be extended twenty days from the date of such denial without the production of such certificate.”

Circuit Court Rule No. 66 contains the following provisions:

“Sec. 1. A party shall have not less than twenty days after entry of judgment or decree for the settlement of a bill of exceptions, in actions at law, or of a case containing the evidence for review in the Supreme Court in actions in equity, but the stay of execution or other proceedings during that time shall be discretionary with the court.
“Sec. 2. Subject to the limitations prescribed by statute, and upon such terms and conditions as shall be deemed just, the court may grant such further reasonable time as shall be deemed proper for a settlement of a bill of exceptions or case, and may extend such time when proper. But no more than sixty days further time shall be granted for that purpose, except for good cause shown by affidavit on special motion after notice to the adverse party, or on the written stipulation of the parties.”

There are, therefore, three possible stages contemplated by the above statute and rule in connection with the allowance of time for settling bills of exceptions. To begin with, a party is always entitled to 20 days as a matter of right. There are no regulations or restrictions relating to this first stage. As to the second stage, by the express provision of statute above quoted, the extension beyond the 20 days cannot be granted, unless the applicant produces a certificate from the court stenographer to the effect that a transcript of the testimony has been ordered and will be furnished as soon as possible. On production of such certificate, an extension may be granted, and, if not more than 60 days is requested, may be granted on an ex parte application. If, however, it turns out that this extended period is not sufficient, there is still power residing in the court, in its discretion, to grant a further extension, provided the application is made in the form required by the rule and good cause is shown. The rule expressly provides that when this third stage is reached (i. e., when an extension beyond 80 days from date' of' judgment is sought), the showing of good cause must be made by affidavit on special motion after notice to the adverse party. If it is not so made, the court is without power to grant the extension. And any subsequent extension that may become necessary is of this same class and must be sought in the same manner. A party is, of course, not limited to 20 days in the first instance, nor to 60 on the first extension, but if more time is sought in either case, the provisions of the statute and the rule applicable to the situation must be complied with. There is this exception to the above regulations, that if the parties by written stipulation arrange the extension between themselves, not to exceed of courge the time limited by statute, the court is not further concerned and there is then no question of lack of authority to make an order in accordance with the stipulation. The purpose of the rules is to prevent unnecessary delays by the defeated party after judgment, and the provisions are for the benefit of the opposite party.

The case of Boyne City Hardware Co. v. Charlevoix Circuit Judge, 197 Mich. 374, on which the defendant based his decision in this matter, was one which the court had attempted to extend the time beyond the first 20-day period without the production of the certificate of the court stenographer, and then, more than six months after the expiration of the 60-day extension which he had attempted to grant, a motion was made for a further extension. No stenographer’s certificate was produced at this time, but one of the affidavits in support of the motion showed that the completed transcript had been delivered by the stenographer to the attorney four months before the date of the motion. Under these circumstances, the court was clearly without authority to grant an extension.

Guthrie v. Leelanau Circuit Judge, 197 Mich. 321 (the other case relied upon by defendant for his decision), involved an attempted chancery appeal. The statute requiring the payment of an appeal fee to the register in chancery within 20 days after the filing of the decree was held to be mandatory and, further, to be a condition precedent to the extension of time to settle a case for appeal."

Neither of these cases meets the situation presented in the matter now under consideration. In this case a 60-day period had been properly obtained, following which a 90-day extension was allowed, and the question before us is whether or not, under the circumstances, a further extension ought to be granted. We do not overlook the fact that the order of June 21, 1917, purporting to grant 80 days’ time to settle the bill of exceptions, was unauthorized and beyond the power of the court to make, the terms of the statute not having been complied with, but this defect was cured by stipulation. The defect in the order of August 17, 1917, granting the 90-day extension, in that it was not based on written motion, affidavits and notice, may be considered as cured by the proceedings in court on the motion to vacate the order, at which time, both parties being present and cause being shown, the court made another order, the effect of which was to grant a period expiring October 9, 1917, within which to settle the bill of exceptions, and if prior to that date a certain certificate of the court stenographer was filed, then the full period of 90 days as allowed by the previous order was to stand and remain in force.. The required certificate was seasonably obtained, but was not actually filed until October 10th. Plaintiffs’ counsel, however, raised no question on this ground and treated the extension as in force for the full period. He had been keeping track of the progress of the transcript by direct reports from the court stenographer, and on October 22, 1917, wrote Mr. Brevoort as follows:

“I have been advised by Mr. Donaldson that he delivered about 54 pages of the testimony in Phelps v. Brevoort on October 12th and that on October 20th he had delivered the pages up to and including 277.
“In order to get the case upon the docket for the January term, it will be necessary to complete the bill of exceptions within a couple of weeks, so that the •record may be printed.
“Upon the hearing before Judge Hally, I stated that I would be glad to sit down with your counsel and prepare the bill of exceptions in order that it might be completed at as early a date as possible. Since then, I have heard nothing from you.
“I am writing now to say that, unless you take the proper steps to assure the hearing of this case at the January term, I shall make a motion very shortly to limit the time for the preparation of the bill of exceptions. We are entitled to have this case heard at the January term and we must insist upon our rights.”

The sole question, therefore, is as to the power of the circuit judge to grant the further extension sought in defendants’ motion of December 24th. The judge’s denial was based, not on an exercise of his discretion, but on the belief that under our former decisions he had no right to exercise discretion in the matter. As we have seen, in the case of Boyne City Hardware Co. v. Charlevoix Circuit Judge, supra, on which he based his decision, no certifica be of the court stenographer had ever been produced, and the court was clearly without authority to grant an extension. There was a direct violation of the statutory provision. But in the instant matter, as is shown, the first grant of time beyond the 20-day period was lawfully obtained, and several certificates of the court stenographer have been produced. The statutory provision requiring the stenographer’s certificate clearly applies only to the first extension beyond the 20-day period. See People v. Manistee Circuit Judge, 194 Mich. 527. Not only is this the natural meaning to be given to the words of the statute, but a situation can be easily called to mind rendering a broader interpretation unreasonable. Suppose, for instance, that a 60-day extension had been granted on production of proper certificate. Without fault on the part of the stenographer, he is delayed in getting out the transcript, but finally completes and delivers it to the attorney on the 58th or 59th day of this period. The party is clearly entitled to a further extension, yet the stenographer cannot then make the certificate in the form required. So it is apparent that when this stage is reached, it is merely a matter of showing good cause by affidavit on special motion after notice. The “good cause” is not limited to the inability of the stenographer to seasonably complete the transcript. That is usually one of the causes, but it is apparent that other contingencies might arise requiring an extension. There is, therefore, nothing in the statute which deprived the judge of power to grant the extension, if sufficient cause existed. Nor can we find anything in the court rule which made it other than a case for the exercise of his discretion. In the filing of the motion, the provisions of the rule as to form and manner of presenting same appear to have been complied with. The matter would accordingly seem to resolve itself solely into a question of whether “good cause” had been shown, unless (as the opinion of the judge seemed to indicate) the fact that something over a month had elapsed between the expiration of the 90-day extension and the filing of the motion, deprived him of power to act. In the original opinion in Kaiser v. Wayne Circuit Judge, 162 Mich. 247, this court did announce such a rule, holding that the extension must be applied for before the time already granted had expired, but, on rehearing, the opinion was modified, Mr. Justice Ostrander saying:

“But in so far as the opinion limits the right of the court to at any time entertain a motion, supported by affidavits, after due notice to opposing counsel, to extend the time for settling exceptions, we think it should be modified. We are impressed that in view of some former decisions of the court, a rule upon this subject should be announced only in the form of a rule to take effect in the future.”

Previously, in the case of Roach v. Wayne Circuit Judge, 117 Mich. 242, this court had said:

“It is further provided that no more than 60 days’ further time shall be granted except for good cause shown by affidavit on special motion after notice to the adverse party. There is no express limitation as to the time when this order may be made, and we think no such limitation need be interpolated by construction. The rights of the parties are sufficiently protected by the requirement that they shall have' notice of, and an opportunity to contest, such application.”

Following the Kaiser Case, in Pettinger v. Montmorency Circuit Judge, 164 Mich. 463, this court said:

“We are of opinion that after the expiration of the time above granted the respondent had the power, upon sufficient cause shown, after due notice to opposing counsel, to further extend the time for settling the bill of exceptions. In the recent case of Kaiser v. Wayne Circuit Judge, 162 Mich. 247 (127 N. W. 236), it will be noted that the order extending the time was made without cause being shown and without notice,”

■ — and after quoting the language of Justice Ostrander above set forth, continued:

“The above being the last expression of this court upon the subject, it must control us here.”

No contrary rule has since been announced. Present Circuit Court Rule No. 66, which has since superseded former Rule No. 47, makes no change in this respect, nor is there anything in section 62, chap. 18, of the judicature act, which would operate to modify the effect of these decisions. The circuit judge, therefore, should not have regarded himself as deprived of the right to exercise discretion in the matter, but should have decided the motion solely on the question of whether or not good cause was shown.

It is manifest that “good causé” cannot be confined exclusively to delays in the furnishing of the stenographer’s transcript. • Suppose an attorney, after receiving the completed transcript and beginning work thereon, becomes ill. It appearing after a week or two that his illness is serious and will be of long duration, a new attorney is employed, who with reasonable promptness begins to familiarize himself with the matter. Before he can complete the preparation of the bill of exceptions, he meets with a fatal accident, and the matter must be taken up anew by a third attorney. Can it be doubted that the court has power to grant the necessary extensions to meet the situation?

In the instant case, the defendant Henry N. Brevoort is the nominal attorney of record. It appears that he is 74 years of age, that he has not been a well man for many years, and that his illness causes him to suffer from lapses of memory. He did not attempt to try the case, but employed Mr. Edwin Henderson to try it for him. During the summer or fall of 1917, a disagreement arose between Mr. Brevoort and Mr. Henderson and the latter withdrew from the case. This introduced a real and serious difficulty into the situation. Some delay might well be expected in connection with the selection of new counsel and his familiarizing himself with the matter. Little could be done to this end until the transcript was ready. The transcript was completed by the stenographer on October 24th, and in less than two weeks, viz., on November 6th, was delivered by Mr. Brevoort to Mr. Alexander J. Groesbeck for the purpose of having an investigation made by him as to the likelihood of a reversal of the judgment entered in the cause. The transcript was a long one, the trial having been in progress from June 11th to 19th. While Mr. Groesbeck was at work on the 'case, it was discovered that the time for settling the bill had inadvertently been allowed to expire; A motion for a further extension was at once prepared. This was on December 24, 1917. Because of the holidays, the date of the hearing was fixed as January 5, 1918. Some further delay ensued in the effort to have the matter heard by Judge Mayne, who tried the case. The papers were finally mailed to him, reaching him January 23d. It is our opinion that such a showing might well support an order granting a further reasonable extension of time.

The writ will issue as prayed for.

Ostrander, C. J., and Bird, Moore, Steere, Fellows, Brooke, and Stone, JJ., concurred.