text:
    STOCK v. CITY OF HILLSDALE.
    1. Waters and Watercourses — Riparian Rights — DiversiónMunicipal Corporations.
    A city, as an upper riparian owner, has not the right to divert water from its natural course for the use of its citizens generally, nor to supply manufacturing establishments within its limits.
    2. Same — Presoriptive Rights.
    On a bill to enjoin the diversion of water, it appeared that, at the time defendant desired to use the water, it, through a committee of its common council, approached complainant for the purpose of obtaining his consent to such use; that complainant then made a proposition to said committee which was never acted upon by the council; that defendant constructed its plant and commenced to use the water, furnishing to complainant and collecting pay therefor, and for more than 20 years continued such use. Held, that, by such use in open defiance of complainant’s rights, and his knowledge thereof, defendant acquired title by prescription to an amount of such water equal to the amount being used 15 years before the time complainant’s bill was filed.
    3. Injunction — Enforcement of Legal Rights — Discretion of Court.
    On a bill for an injunction, a court of equity will take into consideration, not only the complainant’s bare legal rights, but the damage which will result to a defendant from the enforcement of such legal rights, as well as the question of delay in bringing the proceedings; and where for more than ' 20 years complainant had known of defendant’s asserted right to use said water as a source of water supply, that this use had increased with the growth of the city, and that defendant had incurred large obligations and expended large sums of money, and had gone too far to recede without serious loss to itself, the court did not abuse its discretion in denying an injunction to restrain a further extension of such use.
    4. Waters and Wateroourses — Riparian Rights — Diversion-Remedy.
    A riparian proprietor has no title to water as such, but only to its unimpeded flow; and where an upper riparian proprietor diverts such water to his damage he is entitled to maintain an action either at law or in equity. And if the upper riparian proprietor diverted such water at times of the year when the diversion was no damage to the lower proprietor, such use, if unlawful, was damnum absque injuria.
    5. Injunction — Damages in Gross.
    Though complainant, in a bill to restrain the unlawful diversion of water of which he is a lower riparian proprietor, has noc shown himself entitled to an injunction, the court having obtained jurisdiction, will retain it and award complainant his damages in gross.
    Appeal from Hillsdale; Lockwood, J., presiding.
    Submitted November 12, 1908.
    (Docket No. 42.)
    Decided February 2, 1909.
    Bill by Frederick W. Stock against the city of Hillsdale to enjoin the diversion of certain water. From a decree dismissing the bill, complainant appeals.
    Modified and remanded.

      James 8. Galloway and Wilson & Cobb {Dallas Boudeman, of counsel), for complainant.

      Merton Fitzpatrick {Grant Fellows, of counsel), for defendant.
   Montgomery, J.

The bill in this case is filed to obtain an injunction restraining the defendant from increasing the capacity of its water plant or from laying any more pipe into Bawbeese Laxe and connecting the same with said water plant, and thus diverting the water from the water of the St. Joseph river to the damage of the complainant as a lower riparian owner. The bill alleges: That the complainant is, and for many years has been, the owner of the water power of the St. Joseph river at the city of Hillsdale, and also of the water power at Litchfield in the county of Hillsdale; that he has expended many thousands of dollars in constructing and maintaining dams and mill races for the purpose of conducting the water of said river to these mills; that for many years he has depended upon the waters for running and operating his mill at Hillsdale and producing steam to propel the engine and condenser used in the mill; and that said water power is and has been at all times of great value to complainant.

It appears from the testimony: That in 1885, and prior thereto, the question of procuring waterworks for the city of Hillsdale was agitated by the council; that a committee was appointed, of which the complainant was a member, to investigate the sources of supply; that the committee made report to the council naming certain springs of water and Bawbeese Lake as sources of supply which they might adopt. A committee was appointed by the common council to have charge of the matter of constructing a system of waterworks. This committee purchased a tract of land upon the shore of Bawbeese Lake and a right of way from this tract across other lands to the city limits for the purpose of laying water mains. The committee, under direction of the common council, erected a pumping station upon the lands purchased by them on the shores of Bawbeese Lake, and connected a well in thia pumping station with the waters of Bawbeese Lake by an intake pipe, and from it the water is pumped through a water main to the city of Hillsdale and through its water system. The construction of the entire system was completed early in the year 1886, since which time the water from Bawbeese Lake has been pumped through the mains laid in the streets of the city and supplied to all the citizens. Since 1885, the city of Hillsdale has grown rapidly. A record has been kept of the number of gallons pumped each day since 1888, and it shows that in 1892 the number of gallons pumped was 144,241,000. The quantity increased gradually until in 1906 the quantity pumped was about 340,000,000. The records kept by the city show 385,000,000, but allowing for slippage of the pumps, caused by wear, the amount actually taken was something like 22 per cent. less.

The complainant had, prior to 1893, operated an electric lighting plant in connection with his mill and furnished electric light to the city of Hillsdale and to its citizens. At this time a disagreement arose between the complainant and the city, and some litigation was pending between the parties. The complainant proposed to sell his electric lighting plant to the city, and the city purchased this plant and paid the complainant $10,000 therefor in bonds of the city. It appears that the complainant then knew it was the purpose of the city to remove this plant to the pumping station and operate it in conjunction with the waterworks system and by the same power plant. The lighting plant was removed in 1893, after its purchase by the city, to the pumping station, and large repairs and additions made to it, and it has been ever since operated by the city in conjunction with the waterworks. In 1906 the city determined upon increasing the capacity of this waterworks so as to give a greater supply of water and greater force. The question of bonding the city in order to raise money for this purpose was submitted to the electors, and the issuance of the bonds was authorized. By this plan the capacity of the waterworks system was to be practically doubled; additional power and new pumps being installed.

It is said in the brief of counsel that a reference to the proofs fails to show any knowledge by complainant of the intention to increase the amount of water to be taken from the lake; but it would appear from the letter of complainant to the council, written August 27,1906, that he had learned of the intention to withdraw a greater amount of water than heretofore from Bawbeese Lake, among other sources, from the official records of the council’s deliberations. The council had on the 12th of March, 1906, provided for the submission to the people of a proposition for water plant betterments, and to raise $16,000 for that purpose, which proposition was carried by the people. These bonds were issued and sold, and some time in April consulting engineers were employed and came on to supervise the work of reconstructing and enlarging the plant. Just how much was done prior to the protest of August 27th is not quite clear; but on August 27th a protest was made by the complainant to the common council claiming that, in attempting to double the capacity of the waterworks, the city was ignoring complainant’s lawful property rights. This notice was ignored by the council, they proceeded with the work, and at the time of the filing of this bill, which was on the 6th day of October, 1906, very considerable progress had been made in the construction of the works, and a large amount of money expended.

The claim of the complainant is: That, by reason of the pumping of water by the defendant out of Bawbeese Lake, the supply of water to his mills is decreased, and that he has been deprived of the use of his water wheels; that he is now able to operate only one wheel, and he can operate this only on the average of two months a year; and that by reason of this failure of water he has taken out all the wheels except the larger one. He also claims that by reason of the diminished flow of water he has insufficient water to use in the condenser, which is a part of the steam plant installed. The learned circuit judge was of the opinion that the pumping of the water from Bawbeese Lake had not seriously affected the flowage of water in the St. Joseph river at Litchfield. The conclusion was based upon the fact that there are other sources of supply flowing into the St. Joseph river between Hillsdale and the mill at Litchfield, and upon the further fact that by the sewage system of the city the water pumped from Bawbeese Lake found its way back into the St. Joseph river before reaching the complainant’s mill at Litchfield. The circuit judge properly held that the city had not the right to divert the water as an upper riparian owner and to pump the water out of this lake for the use of citizens generally and to supply manufacturing establishments within its limits, and he also found that the use of the water in the manner in which it was used by the city had affected seriously the flow of water to the complainant’s mill properties, and implied that he had suffered some damage. He was also of the opinion that, had the complainant filed his bill promptly when it was first proposed to take water out of Bawbeese Lake, he would have been entitled to the injunction; but he held that, under the circumstances of this case, the complainant was not entitled to this special writ, but should be left to his remedy at law. Complainant has appealed here.

The complainant attempts to excuse his failure to file a bill when the plant was first established by the following facts: It appears that in 1885 a committee of the council approached complainant for the purpose of getting his. consent to the city’s making use of the waters of Bawbeese Lake, and that he then made them a proposition that he would grant the right to take 500,000 gallons daily if the city would pay him $500 a year and supply him with water for his condenser to the amount of 250,000 gallons daily. The council committee gave no definite answer to this proposition, but went on and constructed the works, and it is claimed under these circumstances that the complainant had a right to infer that the city had taken possession as licensee. We think this contention cannot be sustained. It must have been known by the complainant that the committee of the defendant had no power to enter into a contract with him except upon the approval of the common council, and it further appears that, within a short time after the establishment of the plant, the city commenced rendering bills to complainant for the use of the very water which he claimed was to constitute a part of the consideration to him, and received pay therefor. It is true that he protested in making the payments for this water, but it is not clear that he protested upon this ground. But whether he did or not, the fact that the city was exacting pay for this water was notice to him that it was not proceeding under the authority conferred by his unaccepted proposition, and from that date forward it appears that the city was proceeding in defiance of his rights, and by his own testimony it appears that this was understood by him. For more than 20 years before the filing of this bill, the city had occupied this plant, used this water without any proceedings being taken by complainant, and in defiance of his rights, and has very clearly acquired a title by prescription. But it is contended that this did’not give the city the right to use a larger amount than the amount taken from the lake beginning with a date 15 years prior to the filing of the bill; in other words, that the prescriptive right should be limited to the 144,241,000 gallons per year which the city was using as early as 15 years prior to the beginning of the suit. The complainant is undoubtedly right in the contention that the prescriptive right of defendant would be limited to substantially the amount of water which had been used for the prescriptive period; but it by no means follows that a remedy by injunction would be open, for year after year the use of this water had increased, until at the end of the period it was substantially 340,000,000 gallons, and no relief by injunction had been sought.

But it is further contended that, even if this be assumed, the complainant would have a right to restrain a further extension of this water plant. The circuit court was of the opinion that in the exercise of a proper discretion a writ of injunction should not be allowed, and he based his decision upon McKee v. City of Grand Rapids, 137 Mich. 212; Edwards v. Mining Co., 38 Mich. 46; Fisk v. City of Hartford, 70 Conn. 720; and City of Logansport v. Uhl, 99 Ind. 531. We think his conclusion in this respect- is correct. The cases cited are authority to the. proposition that a court of equity will take into consideration not only the complainant’s bare legal rights, but the damage which will result to a defendant from the enforcement of such legal rights, as well as the question of delay in bringing the proceedings. In determining this question, it is not quite logical to wholly separate the scheme of enlarging the capacity of the plant from the original scheme of constructing waterworks to supply the city with water. The complainant knew that for 20 years or more the defendant had asserted the right to use Bawbeese Lake as a source of water supply to supply the inhabitants of the city, and that this use had been made of water in increasing quantities as the increasing demands of the city required. There was nothing new therefore in the proposition to increase, rebuild, and enlarge the plant so as to increase the capacity beyond that of the original plant. It was simply in furtherance of the original scheme and original policy,, upon which large amounts of money had been expended with the knowledge of the complainant and without his. active interference. More than this, before he actively interfered by an application for a writ of injunction, or did more than to offer a protest, the city had incurred large obligations, had expended a considerable amount of' money, and had gone too far to recede without very serious loss to itself. Indeed, some of these expenditures preceded even the formal protest. We think therefore, the circuit court was right in holding that the writ of injunction should not be allowed.

The question presents itself, however, as to whether the complainant should be remanded to his remedy at law. It is the contention of the complainant that there should be an accounting had, and that he should be allowed for the value of the water above the amount as to which the prescriptive right was acquired, and damages awarded, him therefor. We think this is a mistaken view of the complainant’s rights. He has no title to the water as. water in Bawbeese Lake. It is only where the diversion of the water from Bawbeese Lake has affected his rights as a lower riparian proprietor that he is entitled to maintain an action either at law or in equity. The water is not a commodity that he could himself lawfully divert and sell, but his damages would be measured by the actual damage resulting from the failure to allow the water to flow through the St. Joseph river. There were times of the year when there was no such damage to him, and the use of the water, if not lawful, was damnum absque injuria.

It is also evident that the claims of the complainant to compensation for the interruption of his business are very largely overestimated and exaggerated. The complainant purchased the old mill in 1869 and operated it as a water mill. At the end of six months, however, he testified: That he discovered that the water was irregular, and that he then connected the old engine and boiler that was in the mill when he purchased it; that in the spring of the year, when there was plenty of water, he ran the mill without steam; that he ran thus for five or six years; that the capacity of the mill has been increased down to the present time, until now it has a capacity of 1,200 barrels a day; that the old engines have been replaced with an engine of 400 horse power, requiring about a quarter million gallons of water for condensation purposes alone. Before the waterworks were put in, one of the wheels had been discontinued. Soon after, another was discontinued'', and this at a time when the city was taking only about 500,000 gallons a day out of a total of 15,600,000 gallons.

It is undeniable, however, that the complainant’s rights were infringed by diverting this water, and that the value of his property — the mill at Hillsdale — was to some extent affected by this fact, and we think that the rights of complainant may well be adjudged in this case. The complainant’s damages should be awarded in gross, even though he has not shown himself entitled to a writ of injunction. See Blake v. Cornwell, 65 Mich. 467, and Allen v. Electric Co., 144 Mich. 370.

The decree will be modified to this extent, and the case will be remanded, with the privilege of putting in further testimony upon the distinct question of the damage to complainant’s property by the conversion of the water for the use of the city to the extent of the capacity of the improved plant, as well as for the damage sustained by the increased use of water above the amount fixed by the prescription for the period of six years prior to the filing of this bill, and for this amount decree should be entered by the circuit court for the complainant, with costs.

Ostrander, Hooker, Moore, and McAlvay, JJ., concurred.


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    BLAMPEY v. PIKE.

    Vendor and Purchaser — Contracts—Rescission—Fraud.
    On a bill filed for the rescission of a certain agreement and a reconveyance in a transaction which amounted to an exchange of properties, and where complainants, husband and wife, the former understanding the English language imperfectly and the latter at times insane, after discovering that they had been defrauded, made a settlement and surrendered their contract for a nominal sum, it appearing that they had been defrauded by false representations as to the quality and value of defendant’s land for which they had deeded premises worth $2,000 and contracted to pay a balance of $1,350. Held, that complainants are entitled to the relief prayed' and to have the settlement set aside as fraudulent.
    Appeal from Cheboygan; Shepherd, J.
    Submitted November 13, 1908.
    (Docket No. 31.)
    Decided February 2, 1909.
    Bill by Walter Blampey and another against Sidney J. Pike and another to set aside certain deeds on the ground of fraud. From a decree for complainant, defendants appeal.
    Modified and affirmed.

      Reilley & McPhee, for complainants.

      Frost & Sprague, for defendants.

       Headnotes prepared by McAlvay, J.

   McAlvay, J.

This controversy arises from a transaction in real estate between the parties. Complainants owned and occupied a parcel of land of about 10 acres, near the city of Cheboygan, in Cheboygan county. Dot fendant Pike owned a farm of 200 acres in the same county. An agreement in writing was entered into between the parties on May 21, 1906, whereby defendant Pike and his wife, in consideration of $3,350, agreed to sell and convey to complainants this farm. The payments agreed upon were $2,000 on the delivery of the contract, and the balance in five equal annual payments of $270 each, with interest at 5 per cent. On the same date complainants conveyed to defendant Grace Pollock their property above described in consideration of $2,000. This was the payment of $2,000 mentioned in the land contract, and Grace Pollock was named as grantee at the request of defendant Pike. The transaction amounted to an exchange of properties, and the agreement by complainants to pay the sum of $1,350, the difference between the price of complainants’ property and defendants’ farm. Complainants claim that they were induced to part with their property and purchase this farm by reason of the false and fraudulent representations that this was as fine a farm as was in the county; that it was good for producing hay, and it was fertile and good for all kinds of crops; that they relied upon such false representations, being inexperienced in farming lands; that in truth and in fact this land was very poor and run down; that it was a very light, sandy soil; that it was not grass land, or fertile farming land. The record shows that they were taken over this place by defendant Pike shortly before the exchange was made, and their claim is that he repeated these statements and pointed out to them grass starting to grow, which was, in fact, June grass. On June 16, 1906, after complainants claim they discovered that the farm was not as represented, and as they believed, and had so informed defendant, he after some talk made a settlement with them, giving them two unimproved 40-acre parcels of this land and $100 in cask, retaining the land they had deeded to defendant Grace Pollock. The bill of complaint, after setting forth the facts, prays for an injunction, for a reconveyance of the land they parted with, and for general relief. On the hearing a large amount of testimony was taken from the 40 witnesses who testified in the case. The trial court found that the proofs entitled complainants to relief, and granted a decree accordingly. We agree with him that complainants were entitled to the relief granted. There are no law questions in the case necessary to be discussed. The material questions are upon the facts; defendants insisting that complainants have not made a case upon this record entitling them to relief. Some criticism is made of the construction of the bill of complaint, and an intimation that the relief granted is broader than the allegations and prayer of the bill warranted. Defendants answered this bill, and issue was regularly joined. The answer traverses or denies every material allegation of the bill, and the proofs offered by both parties indicate that each understood the issue that was being tried, and that it covered every proposition upon which the relief granted is based, and the relief so granted is within the prayer for general relief.

It is not our purpose to digest and quote from the testimony in the record, but an examination satisfies us that the court was exceedingly moderate in his characterization of the conduct of defendant Pike in this transaction. The record discloses, as the court in a brief opinion stated:

“Walter Blampey is a slow-witted, hard-working man who understands English but imperfectly. All of the business of the family is transacted by Mrs. Blampey, an impulsive Irish person, subject to alternate fits of depression and exaltation, with a reputation for the past 20 years of being at times insane. This reputation is supported by her conduct in court and by testimony.”

In considering the evidence in the record covering these transactions with complainants, we find ample proof to justify the finding that defendant Pike did actually make misrepresentations to complainants substantially as claimed. This land at the time of the trade was, the court says, “not much better than sand plains.” It was represented as a good farm, immediately productive. Complainants did not know its history, did not know June grass on sand was practically valueless for the purposes of a crop of hay. They were not farmers, nor acquainted with the character of farm soils.

The court says further:

“The alleged settlement is so intimately connected with the original transaction that it ought to fall to the ground with it. Considered alone, it is so unconscionable as to bear upon its face the evidence of Mrs. Blampey’s incompetence at that time, and is so like to duress as to be subject to like consequences. I am clearly of the opinion that the facts here afford a case requiring equitable interference.”

We agree with the trial court upon this finding. Defendants urge that the sale and the settlement were separate and distinct transactions, and cannot be considered together. They were different acts relative to the same subject-matter. At the settlement the contract of sale was produced, and complainants were required to sign a settlement and surrender indorsed thereon. We find no explanation in the record or briefs of defendants of the fairness of a settlement where the result was that defendant Pike retained property accepted by him as worth $2,-000 in the trade, for which he allowed complainants $100 cash and sand land worth perhaps $100 more. This transaction operated to take from complainants their property, and leave them with practically nothing.

The decree of the circuit court is modified and affirmed. The disposition made by the court of the $100 paid complainants on the so-called settlement will be final without further taking proofs, and complainants will by deed re-convey to Mr. Pike the 80 acres of land deeded them, complainants to recover costs.

Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.


author: Grant, J.

text:
    ZIMMER v. SAIER.
    1. Executors and Administrators — Special Administrators— Powers and Duties.
    It is the duty of a special administrator, under the statute (section 9326, 3 Comp. Laws), to conserve and save the estate ready to be turned over to the regularly appointed administrator. He has no authority to employ and pay counsel, in a contest over the probate of the will by the heirs, out of the funds of the estate.
    2. Same.
    In the final account of an administrator an item for fees incurred in the attempted sale of real estate was properly allowed where all the heirs agreed that the item should be paid out of the funds of the estate.
    Error to Ingham; Wisner, J., presiding.
    Submitted November 18, 1908.
    (Docket No. 145.)
    Decided February 2, 1909.
    John J. Zimmer presented his final account as administrator with the will annexed of the estate of Elnora Saier, deceased. The account was allowed in the probate court, and Charles Saier and others appealed to the circuit court. There was judgment allowing the account in part, and contestants bring error.
    Modified and affirmed.

      O. J. Hood, for appellants.

      John J. Zimmer {F. L. Dodge and C. P. Black, of counsel),, in pro. per.
    Elnora Saier died January 11, 1898, leaving a will executed on that day. She had executed a previous will on August 7, 1895. The will of January 11th was presented for probate. A contest between the heirs arose over this will, which found its way into this court. Henrich v. Saier, 124 Mich. 86. The judgment admitting the will to probate was reversed and new trial ordered. After that decision was handed down the parties settled, filing a stipulation, agreeing that the later will should be denied probate, and that the former will should be admitted to probate, and that no costs should be allowed. Three days after Mrs. Saier’s death Mr. Zimmer was appointed special administrator. On the same day a petition was filed by Charles Saier, praying for the probate of his mother’s last will. The will was contested, and the history of that contest sufficiently appears in the case above cited. February 11, 1898, was fixed for the hearing of the petition for the probate of the will, and as well for the appointment of Mr. Zimmer as administrator. Mr. Zimmer appeared in that proceeding before the probate court as the attorney for five of the heirs who favored the will. Smith & Hood, attorneys, appeared for William Saier and the wives of William and Joseph Saier, who were legatees under the prior will. Mr. Zimmer acted as the attorney for the heirs who were in favor of the will until the termination of the suit by stipulation. The five heirs employed Mr. L. B. Gardner to assist him in that suit, for which services he charged |400. Two attempts were made, on petition of some of the heirs, to have the administrator sell the real estate and distribute the proceeds among the heirs. The .first of those proceedings failed for a defective description of the land. To the second petition some of the heirs filed objection, and denied the jurisdiction of the court. The probate court held that it had no jurisdiction. No sale, therefore, was had. For this service the administrator claims he is entitled to receive $194 as commission. On September 17, 1902, a petition was filed by one of the heirs, and the assignee of another, praying for the removal of Mr. Zimmer as administrator, and charging that he had not filed a proper account as administrator. He had then filed an account, to many items of which objection was taken. Upon the hearing the administrator was ordered to pay the claim of one of the petitioners, and to proceed to close up the estate and take action to that end within five days after service of a copy of the order upon him. In this final account he reported having received from the sale of the personal property and rent of the real estate $5,167.72. His total expenditures were $6,238.74, of which amount $2,740.80 was for the expense of litigation, mainly attorney’s fees, and a charge by him as administrator for looking after said estate for a period of five years and two months, $645.80. Included in this account is the charge of Mr. Zimmer in the will contest for the heirs whom he represented, and fees as attorney for contesting a claim of $600 by one Mary McPhee against the estate. His own charge in contesting the McPhee claim before the commissioner and the circuit court was $600, and for Mr. Gardner, who was employed to assist him, $295. The claim was allowed. These clearly unjust claims were rejected by the court, and the two items above mentioned — $400 to Mr.. Gardner, and the $194 for commission in proceedings to sell the real estate — are the only ones allowed, from which an appeal has been taken.
   Grant, J.

(after stating tivs facts). The record contains no parol evidence upon the employment of Mr. Gardner in the will contest. None of the testimony bearing upon this item, if any was taken, appears. Whether Mr. Gardner was employed in the probate court the record fails to show. It is recited in the record as follows:

“ It further appears that L. B. Gardner, at the request of the five above named who were in favor of the will bearing date January 11, 1898, took part as an attorney for the proponents of the will in the trial, both in the circuit court and in the Supreme Court, and said administrator, at the request of said five who were in favor of said will, paid said L. B. Gardner for his services aforesaid the sum of $400, out of the funds of said estate, and said administrator with the will annexed, in his said final account so filed June 11, 1903, claimed credit for said sum of $400 so paid to L. B. Gardner at the request of the proponents of the will bearing date January 11, 1898i”

It was the duty of Mr. Zimmer as special administrator to simply conserve and save the estate, ready to be turned over to the regularly appointed administrator when appointed. 3 Comp. Laws, § 9326; Grece v. Helm, 91 Mich. 450; Schouler on Executors (3d Ed.), § 135. The will of 1898 failed to appoint an executor. Mr. Zimmer as such special administrator could neither employ himself, nor any other attorney, in the will contest. It is stated upon the record that Mr. Zimmer was employed as attorney to represent the five heirs who were in favor of the will, not the estate, and it is also conceded that Mr. Gardner was employed by and represented' the same five heirs in. that contest. Neither Mr. Zimmer nor Mr. Gardner represented the estate. Mr. Zimmer continued to act as special administrator, at least until he was appointed administrator with the will annexed under the probate order of April 27, 1898. The appeal from that decision suspended the order (Schouler on Executors [3d Ed.], § 161), and all that any administrator, whether special or general, could do would be to conserve the estate, pending the decision as to the validity of the will, under the order of the probate court. It is undoubtedly the duty of the executor named in the will to present it for probate, and to take the necessary steps to secure its probate. That duty, however, did not devolve upon Mr. Zimmer, for he was not named executor in the will. He had no interest in the estate, except by virtue of his employment as attorney for the proponents of the will. The heirs promptly arrayed themselves in the court, the one side to contest, and the other to sustain, the will. Under the condition of the estate it was then the duty of Mr. Zimmer to leave the contest to those directly interested, and confine himself strictly to conserving the estate and preserving it for those who should be held finally entitled to it. In re Soulard’s Estate, 141 Mo. 642; In re Parsons’ Estate, 65 Cal. 240; Schouler on Executors (3d Ed.), § 544. He now seeks to compel adverse parties to pay for services of attorneys employed against them. This is not one of those cases where the court is justified, in allowing the administrator to employ counsel in litigation which is for the benefit of the estate. Such action of the court would compel the contestants, the other heirs of the estate, to pay in part the expenses of the proponents’ attorneys. I find no precedent for such a proceeding. The heirs in this case chose'to have litigation, (which, speaking for myself, was needless), and each party should pay their own costs.

Another complete answer to the allowance of this claim is that the stipulation discontinued one suit, disallowed one will, and provided for the probating of the other, without costs to either party. This stipulation settled all doubt, and left each party to pay their own attorneys and their own costs.

As to the $194, the jury found in reply to a special question that it was “agreed between the administrator and all the heirs or their representatives that he should have his fees out of the estate just the same.” Under this finding we see no objection to the allowance of this item. The $400 will be eliminated from the account, and the balance of the account affirmed.

The appellants will recover costs.

Blair, C. J., Montgomery, Brooke, and McAlvay, JJ., concurred.


author: Blair, C. J.

text:
    BAY CITY TRACTION & ELECTRIC CO. v. BAY CITY.
    1. Municipal Corporations — Contracts — Power to Make — Charter Provisions — Subsequent Ratification.
    On a bill to restrain a municipal corporation from entering into contracts for the establishment of an electric lighting plant, held, that the charter of the city made the adoption of a resolution declaring “that it is expedient for the city to acquire by purchase, or to construct or extend as the case may be, works for the purpose of supplying the city and vicinity with gas, electric or other lights,” a condition precedent to the acquisition, construction or extension of such works. The adoption of such a resolution after the letting of contracts for the improvement is of no effect, it being an attempt to supply after the act the necessary preliminary power to do the act. *
    3. Same — Charter Provisions — Board of Estimates.
    Where the charter of a municipal corporation provided that, before any money shall be raised, the common council shall submit its estimate of the amount required for a particular purpose to a board of estimates for its approval, the letting of contracts for the establishment of an electric lighting plant without such submission and approval is invalid.
    3. Same — Constitutional Law — Board of Estimates — Appointment.
    Under article 15, § 14, of the Constitution, the appointment of a board of estimates by the common council of a municipal corporation is valid.
    Appeal from Genesee; Wisner, J.
    Submitted November 19, 1908.
    (Docket No. 175.)
    Decided February 2, 1909.
    Bill by the Bay City Traction & Electric Company against the city of Bay City to enjoin the furnishing of electricity for commercial purposes, and from entering into certain contracts. From a decree for complainant, defendant appeals.-
    Affirmed.

      Weadock & Duffy {Cooley & Hewitt, of counsel), for complainant.

      Samuel Q. Houghton {John E. Kinnane and H. M. Gillett, of counsel), for defendant.
   Blair, C. J.

The complainant in this cause seeks to restrain the city of Bay City from carrying on and extending commercial lighting, in which it is engaged, and to restrain the said city from carrying out certain contracts which it made on January 14, 1908, for the enlargement and reconstruction of one of its electric lighting plants. The city of Bay City has upwards of 50,000 inhabitants; the assessed valuation of its property exceeds $15,000,000; and in January, 1908, its common council consisted of 36 aldermen, or 2 from each of its 18 wards. Prior to April, 1905, the territory which is now Bay City comprised the two separate cities of West Bay City and Bay City, which were separated only by the Saginaw river. Efforts to bring about a consolidation of the cities had been made from time to time, and, finally, the legislature of 1903 passed an act providing for such consolidation, being Act No. 514 of the Local Acts of 1903, which is referred to in the record as the “consolidated charter.” Among other things, it was provided that the act of consolidation should go into effect on the election and qualification of the city officers thereunder in April, 1905. The city of West Bay City had a lighting plant, and had been engaged in commercial lighting, and in lighting its streets and public places, since 1897. Bay City also owned an electric lighting plant, and had been engaged in lighting its streets and public places from said plant for over 20 years, and in doing commercial lighting for a little more than a year, prior to consolidation. At the date of the consolidation of the two cities each was furnishing light for its streets and public places from its municipal lighting plant, and each of the cities was engaged in commercial lighting; the city of West Bay City then having 579 commercial light subscribers, and the city of Bay City having 64. This was the status at the date of the consolidation, April, 1905. By the act of consolidation, the electric lighting plants of both cities and all of their municipal property passed to and vested in the consolidated city.

Subdivision 26 of section 22 of the consolidated charter empowers the common council ‘ ‘ to acquire works by purchase or otherwise for the purpose of supplying said city with electric light,” etc. Sections 96 and 97 provide for the appointment of an electric light committee to have the care, control, and management of the electric light plants, under such regulations as the council should see fit to adopt. Sections 166, 167,-of chapter 14, are as fol-' lows:

“ Sec. 166. It shall be lawful for the city to acquire or purchase or to construct, operate and maintain either independent of or in connection with the waterworks of the city either within or without the city, works for the purpose of supplying the city and vicinity with gas, electric or other lights, at such times and on such terms and conditions as hereinafter provided.
“Sec. 167. Whenever two-thirds of the aldermen elect shall by resolution declare that it is expedient for the city to acquire by purchase, or to construct or extend as the case may be, works for the purpose of supplying the city and vicinity with gas, electric or other lights, then the council shall have power to take shch action as shall be deemed expedient to accomplish such purpose: Provided, That the city shall continue to maintain and operate the lighting systems now owned by the city of Bay City and the city of West Bay City, as now used, operated and maintained for municipal and commercial lighting.”

By amendment to the consolidated charter made in 1907, a board of estimates was created, the amendment being found in Act No. 636, Local Acts 1907. Section 165a provides for the creation of a board of estimates, the members of which are to be appointed by the common council. The board is to consist of five members, who are to hold their office for a term of one, two, three, four, and five years, respectively.

Section 165b is as follows:

“Before any money shall be raised or taxes levied and collected, for the purposes of the several funds mentioned in the charter of said city, or for school or library purposes in said city, the' estimates of the council and the board of education of the amounts of money required for such funds or purposes shall be submitted to said board of estimates for approval and before any bonds or other evidence of indebtedness shall be issued by the city or any board thereof, said issue shall be approved by said board of estimates, unless they have been authorized by a vote of the people as provided in said charter. The estimates of the general city taxes shall be acted upon by the council as provided by the charter, and shall .be submitted to said board of estimates on the first Thursday in May to be considered by the board and reported by it to the council on or before the third Monday of May. The said board shall carefully consider all estimates required by this act to be submitted to it, of moneys to be raised as aforesaid, and shall approve or disapprove of the same. It may decrease the amount to be raised, but it shall not increase the same, and may approve, subject to the conditions of this act, the sale of bonds of said city, or boards, thereof, when thereto authorized by law. The majority of all members of said board shall be required to approve of any of such estimates for the raising of taxes, or any part thereof or for authorizing the issue of any bonds or other evidence of indebtedness against said city, except when the same are authorized by a vote of the taxpaying electors of said city as provided by this charter.”

Section 165c is as follows:

“All votes of said board, approving or disapproving any estimates, or decreasing the amount thereof, or the authorizing or disapproving the issuing of bonds, shall be taken by yeas and nays and entered upon the record of its proceedings. After the said board shall have considered the said matters required to be submitted to it, it shall cause a statement of the amounts approved by it to bo raised by taxation or issue of bonds, and the fund or purpose for which it is raised, to be made, which statement being adopted by a majority of the members elect of the board, shall be then signed by the president and clerk of the board and shall be transmitted- to the council, and only so much of such estimates or amounts to be raised by taxation as shall have been approved by said board shall be raised and collected in said city, and only such bonds and other evidence of indebtedness against said city shall be issued as shall be authorized by said board as herein provided, or as shall have been authorized by a vote of the qualified electors of the city, or the taxing district affected thereby in accordance with the provisions of the charter of said city. The council of said city, upon the approval of said estimates, or any part thereof, by said board, may cause to be levied and collected by general taxes the amount thereof so approved, in the manner in this charter provided, and may issue any bonds so authorized to be issued by said board as aforesaid; provided, the amount approved by said board for school purposes, for interest and sinking fund, and for the purpose of paying the street improvement and sewer bonds and interest thereon as provided in this charter, shall be levied in full.”

Under the consolidated charter the annual budget is required to be prepared by the ways and means committee and submitted to the council for approval. Upon the 29th of July, 1907, the annual budget for the year 1907 was submitted to the council of Bay City and was approved and adopted by that body, and, in conformity with the charter provisions, was referred to the board of estimates. In the annual budget as adopted by the common council and as referred to the board of estimates for approval, the amount appropriated for lighting was the sum of $22,000; for street lighting and for city hall lighting and heating, $2,400. After having been considered by the board of estimates, the budget was returned by them to the council for final adoption; the amount appropriated for street lighting being $20,000; city hall lighting and heating, $2,400. The report of the board of estimates contained, among other things, the following:

‘ ‘ Mr. Fitzhugh appeared on behalf of the electric light department for Bay City and stated that the sum of $15,000 is on the books to its credit, this amount being profits from the service. In view of this fact, we would recommend that the present price now charged of $55 per arc per annum, a total of $22,000 for the 400 lights furnished, be reduced; and in comparison with the cost of street lighting in two Michigan cities, viz., Grand Rapids and Detroit, the charge at Grand Rapids being $34.14, and Detroit $34.39, that same should not exceed $50 per light. As a proposition is now before the council for commercial lighting on a larger scale and changing the system, that might require the amount of money now to the credit of this account; but should no action be taken for the change of system, then the price of lighting should be reduced to $50 per light, making total amount approved at $20,000.”

Upon the final adoption of the report of the board of estimates by the common council, and in conformity with the charter provisions, the several amounts for the various purposes mentioned in said report were ordered to be assessed by the board of assessors upon the city assessment roll for 1907 against the assessable property in Bay City.

Upon July 29, 1907, the common council of Bay City, being the then consolidated city, adopted a report of the electric light committee theretofore to it made, which report is as follows:

Gentlemen: In the interest of economy, improved service and increased capacity thereby placing the electric plant in condition to supply additional street lights as needed, we respectfully recommend that the electric station at the corner of Eleventh and Jefferson streets be abandoned after re-establishing the same with a larger and modern equipment in the building owned by the city, which was formerly used as an electric station and waterworks facing on Linn street, west side of Saginaw river.”

This report was signed by the entire electric light committee, and was adopted by a vote of 21 yeas and 8 nays, being less than a two-thirds vote of all the aldermen elect required by section 167 of the charter.

Upon August 5, 1907, the common council adopted the following resolution:

“Resolved, that the superintendent and committee on electric lighting furnish this common council with a statement showing in detail the actual cost of re-establishing electric lighting plant on the west side of the river, and also giving figures in detail as to what amount will be realized on account of applying, or in the selling of machinery which will not be used in the proposed re-established plant; and be it further resolved, that no definite action be taken in the re-establishing of said plant until after such figures have been submitted and approved.”

Upon September 23, 1907, the electric light committee submitted the following report:

Gentlemen: In reference to Aid. Evans’ resolution adopted August 5, 1907, page 469, common council proceedings, which instructed this committee to report the actual cost of re-establishing the electric plant on the west side of the river, we report as follows: For the purpose of complying with the resolution this committee engaged an expert August 15th to prepare a report under the condition set forth. Up to our last meeting, September 18th, this expert had failed to comply with our request and we concluded to dispense with his services, which we did September 20th. We see no way to comply with the resolution except by obtaining bids on the apparatus to be installed and recommend that the resolution submitted by Aid. Evans and adopted August 5, 1907, by this council be and the same is hereby rescinded. And that this committee through the comptroller receive bids for the apparatus to be installed. All bids to be reported to the common council for confirmation.”

The report was signed by the entire committee, and was adopted by the common council of Bay City upon the 23d of September, 1907. Thereafter, Bay City, pursuant to the aforesaid reports, prepared and printed specifications for new equipment, machinery and apparatus, and received bids from various electrical machinery companies, which bids were accepted, the total amount of the bids being the sum of $37,760.

Upon January 13, 1908, the electric light committee reported to the common council as follows:

‘ ‘ Pursuant to the provisions of a certain resolution adopted by your honorable body at a regular session held September 23rd last (c. p. 563) plans and specifications were prepared in detail and regular proposals sent out and notice given to receive bids for furnishing the necessary material and equipments to be used in extending, reconstructing, perfecting, completing and reorganizing the city’s electric lighting plants, and received the following bids therefor, from the following named persons: [giving list of bids ]. We have carefully considered all of said bids and herewith recommend the following bids be accepted and contract awarded to the respective parties as hereinafter indicated:” etc.

The report was signed by the entire committee, and was adopted upon the date of its presentation to the council by a vote as follows: Yeas, 31; nays, 3 — total number of aldermen elect composing the common council at that time being 36.

Upon January 14, 1908, Bay City, by its mayor and comptroller, pursuant to the resolution of January 13th, executed contracts in writing with the Allis-Chalmers Company, Westinghouse Electric & Manufacturing Company, J. Laing Electric Company, and Arbuckle-Ryan Company, according to the bids and proposals of these companies accepted by the common council of Bay City.

Upon January 18th, the complainant, Bay City Traction & Electric Company, filed its bill of complaint as a property-owning taxpayer, in the circuit court for the county of Bay, in chancery, against Bay City, the Allis-Chalmers Company, Westinghouse Electric & Manufacturing Company, J. Laing Electric Company, and Ar-buckle-Ryan Company, defendants, charging that:

“Bay City has no power to engage in the business of furnishing light, heat, and power for commercial use in said city, or to enter into any contract for the acquirement of new machinery, equipment, or apparatus, or for enlarging or extending its said plant as,contemplated by it, because: (a) It has not been legally authorized so to do by the legislature of the State of Michigan, (b) It has been prohibited from entering into such contracts by the legislature of the State of- Michigan, (c) That the purpose contemplated is in violation of section 9 of article 14 of the Constitution of the State of Michigan, as amended by the legislature in 1905. (d) That no money has been raised or provided for as required by sections 165a, 165b, 165c, and 165d of the charter of Bay City, as referred to in the sixteenth paragraph hereof ” and praying for temporary and permanent injunctions to restrain the defendants from carrying out the proposed improvements.

Upon January 20, 1908, the common council of Bay City passed the following resolution:

“By Aid. Mohr: Whereas, the electric light plant, commonly known as the Eleventh street electric lighting works, has been in use by the city for twenty years and upwards, to which in recent years a very limited amount of repairs and improvements have been made, and in consequence thereof the machinery therein has become old and nearly worn out and expensive to maintain and operate for lighting purposes; whereas, said plant is liable at any time to serious breakdowns and thus place the city and public streets and alleys thereof in darkness for an indefinite period of time; whereas, said electric light works can no longer be economically maintained and operated in its present condition; and, whereas, it is apparent that said plant will have to undergo very expensive repairs and practically be reconstructed in order to maintain same in the public service economically; therefore: Resolved, ■that in the economical administration, continuance and maintenance of said public lighting plant it is hereby determined necessary and expedient that said public lighting plant be promptly and as speedily as possible fully, completely and properly repaired, remodeled and reconstructed to meet the public requirements and demands thereon and that the same be and is hereby ordered to be so done without delay on present site or at some other location if in the opinion of the electric light committee same can be done economically and advantageously to the city,” which was adopted by the following vote: Yeas, 30; nays, 3.

The circuit court held that the complainant’s third and fourth grounds for relief were established by the proofs and granted a permanent injunction. Defendant has appealed to this court. As we have reached the same conclusion as the circuit judge, it is unnecessary to consider the other questions discussed in the able and elaborate briefs of counsel.

The language of the charter provision is that, “ whenever two-thirds of the aldermen elect shall by resolution declare that it is expedient, * * * then the council shall have power,” etc. The meaning of the language used is plain, and the legislative intent is unmistakable that the power of the council to carry out its purpose depends upon its first adopting a resolution determining the expediency of the purpose. The provision of the charter is not a general one, couched in general terms and relating to improvements generally, but a specific one relating to the very improvement sought to be made. To sustain the action of the council, we must by so-called construction nullify an unambiguous provision of a statute which the legislature enacted under all the sanctions of our Constitution and laws. The reasons why we should decline to adopt such a construction are so clearly stated by Chief Justice Cooley in the case of Hoyt v. City of East Saginaw, 19 Mich. 39, that further discussion is unnecessary.

The passage of the resolution of expediency after the letting of the contracts was of no effect, because there was nothing to ratify. It was an attempt to supply after the act the necessary preliminary power to do the act.

We think it equally clear that the question of incurring the expenditures involved in the contracts was not submitted to and approved by the board of estimates, and that funds for such improvements and to meet the obligations of the contracts had not been provided for with the approval of that board, and the action of the council was therefore invalid. Robinson v. City of Detroit, 107 Mich. 168; Attorney General v. City of Detroit, 113 Mich. 494; City of Detroit v. Blades, 133 Mich. 249; Carney v. Whelan, 147 Mich. 15.

The point that the board of estimates is an unconstitutional board because appointed by the common council instead of elected by the electors of the city is not well founded. Constitution, art. 15, § 14; Robinson v. City of Detroit, supra.

The decree is affirmed, with costs to complainant.

Grant, Montgomery, Ostrander, and Brooke, JJ., concurred.


author: Montgomery, J.

text:
    BEASORE v. STEVENS.
    1. Pleadings — Nonjoinder op Dependants — No Depense Under General Issue.
    The nonjoinder of parties, in the absence of a plea in abatement, is no obstacle to a recovery under a general declaration alleging that defendant and another made the contract declared upon.

      2. Evidence — Competency—Relevancy—Proop op Prior Transactions.
    Where, in an action for the breach of a contract for the sale of certain hay, plaintiff claimed that the contract was made by defendant’s son for hay owned by both of them as one job lot, testimony showing that in previous years they had so sold their hay to plaintiff was both competent and relevant.
    3. Agency — Evidence op Authority — Question por Jury.
    In an action for breach of a contract for the sale of certain hay, the evidence tended to show that plaintiff called upon defendant and his son who lived upon adjoining farms, and was told by them that the hay would probably be sold as one lot; that the son afterwards called on plaintiff and made the contract; that plaintiff sent a baler to defendant’s farm' who commenced baling the hay without objection from defendant ; and that, in subsequent conversations between plaintiff and defendant, defendant did not repudiate the contract made by the son. Held, that the questions of whether the son was authorized to make the contract, or that it was subsequently ratified by defendant, were properly submitted to the jury.
    Error to Eaton; Smith, J.
    Submitted November 19, 1908.
    (Docket No. 165.)
    Decided February 2, 1909.
    Assumpsit by Peter Beasore against Irving Stevens for breach of a contract for the sale of certain hay. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Cf-arry C. Fox, for appellant.

      Elmer N. Peters, for appellee.
   Montgomery, J.

The plaintiff brought an action to recover for a breach of contract. The special count in the declaration averred that the defendant sold the plaintiff 50 tons of hay at an agreed price per ton, to be delivered thereafter by the defendant to the plaintiff. Failure on the part of the defendant to deliver the hay as agreed was alleged, and damages asked for such failure. The plea was the general issue. On the trial the evidence showed that the negotiations were in the main between the plaintiff and Ernest Stevens, a son of the defendant, and evidence was offered tending to show that on previous occasions the plaintiff had bought the hay of the two parties together, and that in August, 1906, the plaintiff visited the Stevens farms — the two farms lying contiguous — and looked at the hay of the defendant, and also that of Ernest Stevens. On that occasion, plaintiff testifies, the statement was made by one of the Stevenses that the hay would probably all be sold together. The son did not have to exceed 15 to 20 tons for sale. It was undisputed that on the 3d of September Ernest Stevens received a check for $25 to apply on the purchase of this hay, and agreed to the sale of 50 tons of hay, and Ernest Stevens testified that in the talk with plaintiff at the time the contract was made, it was talked that the hay would all go together. The plaintiff later on sent a man in his employ to bale the hay. He went to the premises of the defendant, defendant knowing that he was in the employ of plaintiff, and commenced to bale the hay. After he had baled a portion of the hay, according to the testimony offered by the plaintiff, defendant stated that he could continue to bale the hay, but if he did not succeed in making a sale to plaintiff, that he (defendant) would pay for the baling. There was also testimony of conversations between plaintiff and defendant in which defendant failed to repudiate the transaction, and made no claim that he had not sold the hay. The testimony on the part of the defendant was in sharp conflict with that of the plaintiff in some respects, the defendant and his son testifying that defendant had distinctly stated to his son that he would not sell his hay at the price agreed upon, and that, when the son returned, after having- made the sale, he (defendant) declared that he would not let his hay go in at that price. The jury, however, found in favor of the plaintiff, and the defendant brings error.

It is assigned as error that the circuit court permitted testimony showing the previous dealings of the parties, namely, that they had sold their hay previous years together as one job lot. It is claimed that this had no tendency to establish the claim made by the declaration that they sold the plaintiff the hay. It is said it might have been admissible had the issue been whether defendant and Ernest had, on the occasion in question, sold their hay jointly to the plaintiff, but no such issue was in the case. In this counsel are mistaken. This was an action at law, in which the declaration against the defendant was general ; and, as there was no plea in abatement, the nonjoinder of the parties was no obstacle to a recovery on a case showing that the defendant and another made the contract declared upon. See Campbell v. Sherman, 49 Mich. 534, and Dillenbeck v. Simons, 105 Mich. 373. The testimony was therefore competent and relevant.

The next assignments of error relate to the order of proof. It is objected that a letter written by Ernest Stevens was admitted in evidence without proof of authority on the part of the defendant. The answer to this is that we think there was evidence in the case which tended to show that there was an agency, and that the two parties were acting together in the making of the sale of this hay. It is earnestly contended that there was no“ such testimony. But without reciting the testimony at length, these facts do appear: That on the first negotiations it was stated that the hay would be sold together; that the son thereafter went to Eaton Rapids, the residence of plaintiff, and made the contract; that plaintiff later sent a man in his employ to do the baling, and commenced baling the hay of the defendant. Up to this point, and if this testimony is to go uncontradicted, a jury would hardly hesitate to find, and particularly in view of the previous dealings of the parties, that this contract was made on behalf of both the father and the son, and that the father had either originally authorized the sale, or subsequently ratified it. We have already indicated that we think there was some proof of ratification. While the case was a close one on its facts, there was sufficient evidence to carry the case to the jury upon all essential elements, and we think no error was committed to the prejudice of the defendant.

Judgment will be affirmed.

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


text:
    PEOPLE v. BOOS.
    1. Intoxicating Liquors — Unlawful Sales — Criminal Law-Question for Jury.
    In a prosecution for the unlawful sale of intoxicating liquors, there was evidence that respondent had a place of business in a certain location; that said place contained a bar and other paraphernalia of a saloon; that persons were in said place'buying and drinking beer; and that respondent was in the front room of said place admitting men and directing them into a back room where said sales were being made. Held, that the evidence was sufficient to take the question to the jury as to whether the business of selling 'intoxicating liquors was being carried on.
    2. Same — Evidence—Admissibility.
    Permitting a witness to state that the place in question was respondent’s place of business was not error, it being an affirmative statement of fact. It was open to respondent’s counsel to cross-examine the witness as to the source of his information. In the absence of anything qualifying such statement it was some evidence that the place was in fact the respondent’s place of business.
    3. Same — Unlawful Sales — Criminal Law — Instructions.
    An instruction that if there was an unlawful business being done, and respondent was engaged in it, or took part in conducting it, he was guilty; and it was not necessary for the people to show the interest respondent had, whether as a clerk or a partner, was warranted under the evidence, there being no testimony tending to show that the business which was being carried on was the lawful business of another. People v. Drennan, 86 Mich. 445, distinguished.
    4. Same — Unlawful Sales — Criminal Law — Defenses.
    The fact that the respondent’s son had been previously prosecuted for conducting a business at the same place would not bar a proceeding against respondent.
    5. Trial — Conduct of Counsel — Argument.
    On the argument to the jury, in a prosecution for the unlawful sales of intoxicating liquors, it was not error for the prosecuting attorney to state his belief that the evidence in the case was overwhelming that respondent was engaged in the business at that time.

      Exceptions before judgment from the superior court of Grand Rapids; Stuart, J.
    Submitted November 19, 1908.
    (Docket No. 171.)
    Decided February 2, 1909.
    Philip Boos was convicted of violating the liquor law.
    Affirmed.

      Rodgers & Rodgers, for appellant.

      John W. Powers, Prosecuting Attorney, for the people.
   Montgomery, J.

The respondent was convicted of the offense of engaging in the business of selling at retail spirituous, malt, brewed, and fermented liquors without having received from the county treasurer and posting in his place of business a tax receipt required by law. Testimony offered on behalf of the people tended to show: That respondent had a place of business at the northwest corner of Alpine avenue and North street, in the city of Grand Rapids, and that on the 26th of April, 1907, two police officers visited the place, and that, looking through the window, they saw what one of the witnesses said was “lager beer” sold. The other, although not so positive in his statements, also thought it was lager beer, some of it from bottles with the label of the Furniture City Brewing Company on them. That this occurred in the second room, and that respondent stood in the front room, and admitted different men into the room, and apparently directed them into the second room. No testimony was offered on behalf of the respondent.

The contention on behalf of the respondent in this court is, first, that the people failed to show that the business conducted at this place was the business of the defendant; second, that they had not shown that the business conducted was not a licensed business; and, third, that they had not shown that the business of selling intoxicating liquors was being carried on.

As to the last contention, it .is sufficient to say that this is a question of fact as to which the evidence offered on behalf of the people was abundant to carry the case to the jury. The testimony that the bottles were labeled with the name of the brewing company, and the statement of one of the witnesses that it was lager beer, was sufficient evidence for this purpose. This in connection with the surroundings, the paraphernalia of a saloon being present, was enough to indicate that the parties, whoever they were that were conducting these sales, were engaged in the business.

It is next contended that the court was in error in admitting the testimony bearing upon the question of whether this was the respondent’s place of business. The witness Dunn, a police officer, when on the stand, was asked this question:

“Do you know his [respondent’s] place of business on Alpine avenue ?
“A. Ido.”

This was objected to. It is now contended that this was not a proper way to show that this was respondent’s place of business. We think, however, that the question of whether a certain location is the place of business of another is a question of fact and a statement of fact which may be made affirmatively by a witness. There was no cross-examination of the witness upon this point, and nothing to indicate a want of sufficient knowledge on which to base a statement. It is true that it may have been to a certain extent an inference from facts, but, had the respondent’s counsel desired to ascertain further the sources of witness’information, he should have availed himself of the opportunity of cross-examination upon this question. There was also testimony that the plaintiff lived in the upper rooms of this building, and we think, taken together with the statement of this witness, it was some evidence that the place described was in fact the respondent’s place of business.

The principal question arises out of the charge of the court, the substance of which was finally restated by the court in response to a question by counsel for defendant as follows:

“ What I intended to say and I think that is the rule that if there was a business being carried on there which was an unlawful business, and he (respondent) was engaged in it, took a part in carrying it on, was helping carry it on, that he would be guilty; that it is not necessary for the prosecutor to show what interest he has in it, whether he is a clerk or a partner, or how he is interested, but that he is one of the persons that is helping to conduct an unlawful business; that he would be guilty.”

It is claimed that this was error. Reliance is placed upon the case of People v. Drennan, 86 Mich. 445. In that case it appeared that the respondent was acting as postmaster, and that at times he sold liquor in a saloon adjacent to the post office, and there was testimony offered on behalf of the defendant tending to show that his brother was running the saloon. There was no evidence offered by the people to negative the fact that the brother had paid the tax regularly. It was said that it was the duty of the prosecution to show that respondent was engaged in the business, and had not paid his tax, or that he sold liquor for his brother who had not paid the tax on the business at that particular place. This was undoubtedly correct as applied to the facts of that case.

In the present case, so far as the testimony tended to show that any person was engaged in the business, the respondent alone was the person named in the testimony, and the testimony on the part of the people negatived the fact that he had paid any tax for the business at this place. Respondent’s counsel asked an instruction that, before he could be convicted, it was necessary to show that the business was that of Philip Boos, Sr., and that he received the profits, if any profits were made, and suffered the losses, if any losses were suffered. It is conceded in this case, however, that, if the respondent was actually assisting in carrying on a business on which he had not paid the tax and the proofs covered such a case, it would not be material if he did not receive the profits. But it is said if the man who sold the beer in the back room had a license to do so, or if anyone had a license to sell beer in that place, the conduct of the respondent would be perfectly legal, and it is contended that the testimony of the county treasurer raised the issue squarely as to whether the business being conducted there was the business of the respondent. If it was, he could not be properly convicted. If it was not his business, but was the business of someone else, and he was aiding in carrying it on, he could not be convicted because there was no evidence that such a business was not a licensed, lawful business. It will be seen that this was simply a theory of counsel. It is possible, if the record failed to disclose what that theory specifically was, that there might be some force to this contention, although the only proof in the case upon the subject of the proprietorship of the business was that it was that of the respondent himself. However, an examination of the charge discloses what the respondent’s theory was. There appeared in the course of the charge to the jury the statement-that Philip Boos, Jr., had been arrested for conducting a business at the same place previous to this time, and it was contended that that proceeding was a bar to this action, and this though respondent offered no evidence tending to show that this business was that of Philip Boos, Jr. The court very properly charged the jury that the previous arrest of Philip Boos, Jr., would not be a bar to the present prosecution. He added:

“ Of course, if this man is not engaged in conducting a business there, that is the question here, if he is not why is not guilty; but the mere fact that somebody else at some other time has been convicted of conducting a business there does not exclude anybody else being guilty of it at this time; in other words, whether Mr. Boos is convicted or not, if this other man that dealt the beer over the bar and it was beer should be arrested, the mere fact that Mr. Boos is convicted here today would not prevent the other man from being convicted too.”

It so happens that the testimony offered on behalf of the people by the county treasurer was sufficient in its terms to show that Philip Boos, Jr., did not have a license. An examination of the record shows that there is no license for the number in question at Alpine avenue in the name of Philip Boos either for a saloon license or druggist. This testimony could not be true if there was a license in the name of either Philip Boos, Jr., or Philip Boos, Sr., so that it would appear that the request for an instruction on the part of the respondent in this respect should not have been given; for, if the business was the business of Philip Boos, Jr., and the respondent assisted in carrying on the business, he would be equally guilty under the proofs as they appeared in this case.

The other requests for instructions, so far as they were material, were sufficiently covered by the charge of the court. The prosecuting attorney in his argument to the jury made the following statement:

“While I haven’t tried as many cases as my Brother Rodgers, yet I have tried a number of criminal cases, and from the evidence in this case, I consider it as overwhelming that Mr. Boos was engaged in the business at that time.” '

It is argued that this was error, for the reason that it gave the prosecutor’s opinion of the guilt of the respondent, and the case of People v. Quick, 58 Mich. 321, is relied upon. The language employed in that case was quite different from that used in the present. In that case the prosecutor declared to the jury that he stood before them under the solemnity of his official oath, and proceeded:

‘ ‘And I say to you as a man and a citizen [referring to certain witnesses] that I believe they not only lied, but I believe they committed wilful and deliberate perjury,” etc.

The court say:

“This language came from an officer whose sworn duty required him to act only in furtherance of justice, and who is bound by statutory requirements to stand entirely impartial between the complainant and the prisoner. When such an officer gives the jury to understand that what he says is under the sanction of his official oath, and the court, when applied to, declines to correct that statement, it cannot be supposed that jurors may not give credence to it and govern their decision more or less by it.”

In the present case the most that can be said is that the prosecutor placed an estimate by way of argument upon the evidence which had been offered by the people as bearing upon a certain fact in the case, an argument that the testimony was overwhelming to establish that fact. We cannot think that this was exceeding the right of the prosecutor to contend for the truth of the testimony offered and for the inference therefrom essential to maintain his case.

No error wás committed to the prejudice of the respondent, and the conviction will be affirmed.

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


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    GARDINER v. WAYNE CIRCUIT JUDGE.
    Arrest — Capias ad Respondendum — Affidavits—Sufficiency.
    An affidavit for a capias ad respondendum containing allegations not based upon the personal knowledge of affiant, nor having attached thereto the affidavit of the person having the requisite knowledge, is insufficient to justify the issuance of the writ.
    Mandamus by John B. Gardiner to compel Joseph W. Donovan, circuit judge of Wayne county, to quash a writ of capias ad respondendum. '
    Submitted December 21, 1908.
    (Calendar No. 23,115.)
    Writ granted February 2, 1909.

      George P. Codd, for relator.

      Dwyer & Dwyer, for respondent.
    Relator was arrested on a capias ad respondendum, and held to bail in the sum of $1,000. The relator moved to quash the writ (1) because the affidavit attached to said writ does not state any cause of action authorizing the issuance of a writ; (2) the affidavit is insufficient; and (3) the affidavit does not state facts and circumstances sufficient to justify the issuance of the writ. The affidavit alleges that the affiant, Bertram E. Stevens, was induced by the relator, on the 15th of September, 1906, to purchase 320 acres of land situate in the Province of Alberta, Canada (describing it); that said agreement was reduced to writing, and is now in the possession of said affiant; that by the terms of said agreement affiant agreed to pay $720 in cash, and the balance in nine equal payments, payable one year apart, at 6 per cent, interest; that on November 8, 1906, affiant received from said relator a printed agreement for the sale of land; that said agreement was not for the land described and agreed upon originally; that the price in the agreement of November 8th was 10 cents per acre more than was agreed upon before; and that said agreement of November 8th changed the dates upon which payments were to be made. On July 30, 1907, the affiant paid the second payment on said land, of $334, making a total payment of $1,054. The affidavit then alleges that—
    “ On or about June 6, A. D. 1908, this deponent received from the Union Trust Company, Limited, of Toronto, Canada, a copy of a notice of cancellation, which stated that all the interests of said John B. Gardiner in and to the land [describing it] had become forfeited, and had reverted and revested in said Union Trust Company, Limited, and that said John B. Gardiner had no right of reclamation of said land, and would receive no compensation for any moneys paid on said land, and that said Gardiner had not made the payments that he should have made on June 20, 1907, and that in fact he had made no payments after the 20th of July, 1906.”
    The affidavit further alleges that said Gardiner did not pay the sums paid by affiant to him to the trust company, but appropriated them to his own use. The affidavit further alleges that said Gardiner represented to the affiant that he was the owner of the above-described premises in fee simple, and that deponent has since learned the statement to be untrue. The affidavit further alleges that affiant, relying upon those representations, was induced to part, and did part, with his money, and alleges that relator was guilty of deceit and fraud. The respondent refused to quash the writ, and relator now seeks the writ of mandamus to grant the motion to quash.
   Grant, J.

(after stating the facts). It appears from Mr. Stevens’ affidavit for the writ that he signed the agreement of November 8th with knowledge of all the differences between that and the unexecuted agreement of September 15th; at least he makes no assertion that he was not aware of them. He had both in his possession, and yet afterwards he made a payment, thereby ratifying the terms of the executed contract. That part of the affidavit is therefore of no significance, and affords no justification whatever for the issuance of the capias. That part of the affidavit stating that he has been informed by the Union Trust Company that Mr. Gardiner has forfeited his claim to the land is of course based upon hearsay. Not even the notice or letter, if any was received, is attached to the affidavit. All the knowledge affiant had was received from some officer of the Union Trust Company. This is purely hearsay, and affords no foundation for depriving a man of his liberty. The statement that affiant had learned that Gardiner was not the owner of the land in fee simple is not a statement of personal knowledge. It was incumbent upon affiant to show the source of his information, and to attach the affidavit of the person who had the requisite knowledge. The affidavit does not state that he has made an examination of the record, or that Gardiner admitted that he had not the title; nor is the contract, or a copy of it, attached to the writ, so that the court can determine what representations were made in it. The affidavit was not sufficient to justify the arrest of the respondent under the repeated decisions of this court. Church v. Calhoun Circuit Judge, 129 Mich. 126, and authorities there cited.

The writ will issue.

Blair, C. J., and Montgomery, Ostrander, and Hooker, JJ., concurred.


author: Ostrander, J.

text:
    HAINES v. KENT CIRCUIT JUDGE.
    1. Mandamus — Scope of Remedy — Review.
    Mandamus is the proper proceeding to review an order and decree denying a petition, after the death of the original complainant, to revive proceedings in chancery to foreclose a mortgage, and declaring said mortgage to have been satisfied and discharging the same of record, where the petitioner is not a party of record in the original proceedings and by such decree is denied the right to become such party.
    2. Mortgages — Foreclosure —Executors and Administrators —Unadministered Assets.
    A mortgage in process of foreclosure at the death of complainant constitutes unadministered assets of his estate, and by proper suggestion his personal representative is entitled to proceed with the suit.
    3. Abatement and Revival — Suggestion of Death — Bill of Revivor — Rights of Heirs — Original Bill.
    While the statutory suggestion of the death of a party answers the purpose of a bill of revivor, neither by such suggestion nor by said bill can parties be brought into the suit who do not claim by operation of law as.a consequence of the death of the original party; and where an heir, claiming an interest in a mortgage under process of foreclosure which abated at the death of the mortgagee, filed a petition to revive the foreclosure proceedings and did not show any title in nor to said mortgage, the petition was properly dismissed — the only remedy to establish such interest being an original bill filed for that purpose.
    4. Mortgages — Foreclosure—Abatement and Revival — Rights . of Third Parties — Notice.
    On the revival of a suit for the foreclosure of a mortgage which abated at the death of complainant and lay dormant for a considerable lapse of time, subsequent purchasers, though they purchased with notice, should be brought upon the record in such manner that they may, under proper pleadings/ have their rights adjusted.
    5. Appeal and Error — Abatement and Revival — Scope of Determination.
    In denying the petition the court should not have passed upon the merits of the original cause.

      Mandamus by Margaretta L. Haines to compel Willis B. Perkins, circuit judge of Kent county, to vacate an order denying a petition to revive proceedings in chancery.
    Submitted January 5, 1909.
    (Calendar No. 23,170.)
    Writ granted February 2, 1909.

      Walker & Fitzgerald, for relators.

      Fred P. Qeib, for respondent.
   Ostrander, J.

In August, 1884, James H. Brown filed his bill in the circuit court in chancery for the county of Kent to foreclose a real estate mortgage, which mortgage was recorded November 20, 1866. Notice of the pendency of the suit was duly filed. The defendants in that proceeding were James M., Elizabeth, and William Lane. James M. and Elizabeth Lane filed answers in December, 1884, in which they claimed that the debt secured by the mortgage had been fully paid, and that complainant had agreed to discharge the same of record. They asked for the statutory penalty for neglect to discharge the mortgage. Proofs were taken, and those taken in behalf of complainant were filed by someone August 5, 1891. James H. Brown died June 25, 1891. His estate was administered, and by an order and decree made June 1, 1895, was distributed, and the administrator discharged. James M. Lane died August 19, 1897, having in his lifetime conveyed the mortgaged premises to Elizabeth Lane, who, in turn, conveyed portions of them and died in 1907 the owner apparently of about 10 acres of the same. Her grantees are five in number, and one 40-acre tract is subject to a life estate created by said Elizabeth Lane in favor of two persons named. The special administrator of the estate of James M. Lane has not been discharged by any order of the probate court, and this is true also of the administrator of the estate of Elizabeth Lane. No proceedings have been had in the foreclosure case since the filing of. complainant’s proofs with the register of the court. Relator, claiming to be one of two surviving heirs at law and next of kin of James H. Brown, on June 6, 1908, filed a petition in said court and cause, setting up the facts above related, and praying for an order reviving the said foreclosure suit in the names of said heirs and next of kin and against either the special administrator of the estate of James M. Lane or his heirs at law and next of kin and the owners of the life estate as defendants. An order to show cause was made, answers were filed, arguments submitted, and the prayer of the petitioner was denied by an order and decree, which also declared the mortgage to have been satisfied and discharged the same of record. As to the contentions presented in this court, we hold:

1. That mandamus is the proper proceeding in which to review the action of the court below. Relator is not a party to the record in the foreclosure proceeding and by the order how sought to be vacated is denied the right to become such party.

. 2. According to the showing made by relator, the note and mortgage in suit represent unadministered assets of the estate of James H. Brown, deceased. The cause of action survived, and upon proper suggestion his personal representative would have been admitted to proceed with the suit. Webster v. Hitchcock, 11 Mich. 56; Webster v. Bailey, 31 Mich. 36. While the statute suggestion of the death of a party answers the purpose of a bill of revivor, the rules controlling the action of the court in a particular case are not different in the cases where revival of a suit is by suggestion and where it is by bill of revivor. Neither by proceedings under the statute nor by a bill of revivor can parties be brought into the suit who do not claim by operation of law as a consequence of the death of the original party. Barnett v. Powers, 40 Mich. 317. It is possible that relator on account of relationship to the original complainant might be permitted to share in the proceeds of the foreclosure suit if it was revived. It is clear that she did not, by his death, succeed to any title to or interest in the note and mortgage in suit. It is equally clear there are parties, claiming portions of the premises by purchase, whose rights have accrued pending the abatement of the foreclosure suit. It is suggested that they took their titles with notice of the pendency of the suit. But, as matter of discretion, if not of strict right, these parties ought to be, after so great a period of time, brought upon the record in such manner that they may, under proper pleadings, have their rights adjudicated. As between the persons now asserting an interest, an original bill is required. The order denying the prayer of her petition was right, and it is affirmed, with costs.

3. The decision of the court below, both as to relator’s rights and as to the validity of the mortgage, was rested upon the ground that more than 15 years had elapsed since any payment had been made upon the mortgage and since any proceedings had been taken in the suit. We intimate no opinion concerning the effect of laches or of lapse of time upon the subject-matter of the litigation. In the view we have taken, the court should not have decided the merits of the suit upon an application to revive the same, made by a person having no standing for that purpose.

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


text:
    STEWART v. STEWART.
    Divorce — Grounds—Nonsuppo&t—Evidence.
    -On bill for a divorce on the grounds of nonsupport (section 8622, 8 Gomp. Laws), it appeared that defendant was possessed of no property and was dependent on his daily earnings for the support of himself and wife. Held, that the evidence did not warrant a finding that he was of sufficient ability to provide a suitable maintenance or that he grossly, wantonly, and cruelly refused so to do.
    Appeal from Wayne; Rohnert, J.
    Submitted January 6, 1909,
    (Docket No. 11.)
    Decided February 2, 1909.
    Bill by Ada Stewart against Frank M. Stewart for a divorce. From a decree for complainant, defendant appeals.
    Reversed, and bill dismissed.

      Trevor & Bumps, for complainant.

      Walter E. Martin, for defendant.
   Grant, J.

Complainant seeks a divorce from the defendant on the statutory ground of failure to support. The bill states that the parties were married on May 31, 1888. This bill was filed February 12,1908. She alleges in her bill that she has depended entirely for her support upon the bounty of her friends and relatives, and especially the charity of her parents, who are now very aged, and dependent upon their savings of the past; that defendant refuses to do any work and earn any wages, and that she had been obliged to save and beg from her parents. The defendant answered, denying the material allegations of the bill. She testified that her husband had not supported her for the last three years; that he had not given her a cent during the last four years; that he was a printer by trade; that he kept a shoe store for a while; that he sold that business out and went away; that he failed in the shoe business; that he told her he had been making $15 a day selling birds, but that he gave her nothing; and that his health today is as good as when she married him. For 22 years he worked as a printer, earning $3 per day. He testified that for the last 18 years of the 26 he worked as a printer for the Cadillac Printing Company, that his boss then died, and he lost his employment. She admitted that he gave her part of his wages, but not the bulk of them. He testified that he gave her all his wages except his car fare and tobacco money. She admitted that she owned property from which she received $54 per month. She complained of no unkind treatment and found no fault with him, except that he did not support her. She had wanted for nothing for the past three years, because her mother and brother gave her all she wanted. Aside from the complainant, two witnesses were sworn for her. It appeared in her testimony that they had previously been divorced and afterwards they were remarried. When or for what cause that divorce was obtained or upon whose complaint does not appear. The defendant testified that he had never refused to support her; that after his failure in the shoe business he tried to sell silverware, cigars, and other such things, at which he was not successful, and that when he went away to Oklahoma, and engaged in selling birds, he wrote her once a week and received no reply; that he had offered her money in small sums, but she refused to take it.

Complainant’s mother was a witness for complainant. Her testimony is confined to the three years previous to the hearing. She testified only that he did not work.

“ He works in the store, that is all. He had the store, and. she worked in the store. My son gave him the money to go into business. He sold out and goes away to Oklahoma.”

On cross-examination she also testified that he said he would not work.

One Mrs. Gereau, sworn for complainant, testified to only tbis: That she heard complainant ask her husband why he did not work. He replied that he was not able; that he was doing the best he could. The above testimony of these two witnesses is all, outside of her own, that complainant offered to sustain her complaint.

.The father of complainant .was called as a witness for defendant, and testified that he did not support complainant, but that his son supported her. He was asked:

“He [Mr.’Stewart] is a hard-working man?
.“A. He is, if he has business, but he lost his business.
“Q. Was he a steady man ?
“A. Oh, all men are not steady. They like to work a couple of years, and then take a rest. He works, and then he goes away and you give him $100, and he goes.
Q. Was he a drinking man ?
“A. No, sir; he was not.
‘ ‘ Q. He was a pretty good fellow ?
‘A. Oh, I feel sorry for him. I think he is not a business man. He is a man for work, but not for business. He loses money in business. We are not all for business. Some of us cannot do business.
“Q. You know that he has tried hard enough ?
“A. Sure, he worked. He tried to work for three years when he was in that store. She says to him to bring things home, but he brings not home a cent, except he would bring home so much for his board. I would not be sure about it if he would do that.”

Of the other two witnesses sworn for the defendant, one testified that he was a steady, hard-working man. The other testified to nothing important.

The defendant was possessed of no property. He was a laboring man, and had only what he earned to support himself and wife. The statute authorizes a decree, of divorce “ when the husband, being of sufficient ability to provide a suitable maintenance for her, shall grossly or wantonly and cruelly refuse or neglect so to do.” 3 Comp. Laws, § 8622.

The evidence in my judgment does not justify afinding that the defendant is of sufficient ability to support his wife, and that he has grossly, wantonly, and cruelly neglected to do so.

I think the decree should be reversed, and the bill dismissed.

Blair, C. J., and Hooker, Moore, and McAlvay, JJ., concurred.


text:
    GOLDIE v. BAY CIRCUIT JUDGE.
    Costs — Modification of Order — Discretion of Trial Court.
    In denying a motion for a judgment of nonsuit for failure to pay costs, the trial court modified the order by providing that plaintiff might file an approved bond as security for the payment of the accrued and any costs thereafter accruing in favor of defendants, all to be paid on the final disposition of the cause. Held, that the failure to pay the costs within the time limited did not give to the order the effect of a final order, or exhaust the discretion of the trial court as to its modification.
    Mandamus by William Goldie and another to compel Chester L. Collins, circuit judge of Bay county, to vacate an order denying a motion for a judgment of nonsuit.
    Submitted January 12, 1909.
    (Calendar No. 23,226½.)
    Application denied February 2, 1909.

      Cooley & Hewitt, for relators.
   Blair, C. J.

Charles Clark having recovered a judgment as administrator against petitioners, they secured a reversal thereof in this court November 7,1906. Clark v. Goldie, 146 Mich. 303. November 26th costs of this court were taxed in favor of petitioners at the sum of $204.51. March 6, 1908, an order was entered in the circuit court staying proceedings until such costs were paid, with ‘£ leave to pay the same at any time before the first day of the next ensuing term of this court.” The next term of said court commenced on the 12th day of May. On the 9th day of May counsel for plaintiff moved to set aside the order of March 6th. This motion was denied May 23, 1908, and the order denying the motion was on the 2d day of November, 1908, affirmed by this court. Clark v. Bay Circuit Judge, 154 Mich. 483.

The costs remaining unpaid, petitioners moved in the circuit court for a judgment of nonsuit. On the 2d day of January, 1909, an order was entered “that plaintiff have 30 days, from and including this day, in which to file an approved bond as security for the payment of the accrued and any costs hereafter accruing in favor of defendants, all such costs to be paid on the final disposition of the said cause. It is further ordered that on the filing of such approved bond said motion be denied.” Petitioners apply to this court for an order requiring the respondent to show cause why the last order should not be vacated and an order of nonsuit entered.

We held in the case of Clark v. Bay Circuit Judge, supra, that the order staying proceedings and requiring payment of the costs was not a final order. We are also of the opinion that the failure to pay the costs within the time limited <lid not give to the order the effect of a final order, or exhaust the discretion of the circuit judge to modify the order.

The application is denied, with costs.

Grant, Montgomery, Ostrander, and Hooker, JJ.. concurred.