text:
    DALY v. PERE MARQUETTE RAILROAD CO.
    1. Trial — Argument oe Counsel.
    It was highly improper for counsel in a personal injury action to state after the jury returned to the room that the opposing counsel “had the gall, the nerve, as you stepped out 15 minutes, to ask to direct another verdict.”
    2.. Same.
    In an action against a railroad for personal injuries argument of counsel commenting on the extent of plaintiff’s injuries and the liability of the company was improper.
    Error to Berrien; Bridgman, J.
    Submitted June 7, 1917.
    (Docket No. 14.)
    Decided July 26, 1917.
    Case by John Daly against the Pere Marquette Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Parker, Shields & Brown (Gore & Harvey, of counsel) , for appellant.

      O’Hara & O’Hara, for appellee.
   Moore, J.

This action was brought to recover damages for injuries received at a highway crossing. The plaintiff was driving a team of horses attached to a pair of bob sleighs. While crossing the railroad track one of the runners to the sleighs stuck, and plaintiff was thrown forward and hurt. It was his claim the crossing was out of order. From a judgment in favor of the plaintiff the case is brought here by writ of error.

There are several assignments of error, most of which relate to the conduct and argument of counsel. In the oral argument counsel for appellant insisted only upon those assignments of error relating to the conduct of counsel and his argument to the jury. We shall not quote all that is disclosed by the record of what was said by counsel. Some of it does not look well on the printed page. Some of the utterances are as follows:

“Today he (meaning Mr. Gore) had the gall, the nerve, as you stepped out 15 minutes, to ask to direct another verdict. He did that a few minutes ago.
“Mr. Gore: We object to the argument of the counsel, stating what took place in the absence of the jury, and to the use of the words ‘fiddler’s bitch’ in that connection.
“The Court: I think you ought not to comment on what took place there.
“Mr. O’Hara: He did not want you folks to hear that motion. I said I would just as soon have the jury hear that motion. He made some sort of motion here; the motion didn’t seem to take very well, because we are here, so whatever motion he made it must have been denied. * * *
“That is three years ago. He has suffered as he tells us all those years. The doctor says he may suffer the balance of his days. He says there is only one remedy, and that may not be effectual, that is, to break it over again and set it back. Some may get it in their minds, but get it right out of your mind, it don’t make a particle of difference whether Dr. Kerry did a good or a bad job, the railroad company must respond for it be it a good job, bad or indifferent. Do not think for a moment if some better surgeon had been employed and those parts had come together as they ought to have, and the suffering would have lasted perhaps a month or two or three, and that the railroad company ain’t responsible because it comes this way. The railroad company is; they caused it, their negligence caused it, and'it don’t make a particle of difference whether Kerry did a good, bad, or indifferent job, the railroad company has got to respond if this man is still a sufferer. * * * And, as Dr. Taber says, his nerves — I don’t know much about physiology and anatomy — it affects those nerves, drawing that shoulder, causing that pain. Dr. Taber says it may last the balance of his life, and the only remedy is to break the shoulder again and see if you can’t get it right. That is the situation, gentlemen. Would you want to run any chance? My God! What assurance is there if they break it over, break it again, there would be any better union? The courts very wisely say in a case of that- kind the defendant who is responsible for the injury in the. first place must respond in damages. We have asked for $20,000. You would not take $20,000 to undergo the punishment that man has undergone, or I wouldn’t, and none of you, not one of you.”

We cannot understand how counsel will be so unjust to clients as to make arguments which counsel must know are improper, and, if they are at all familiar with the decisions of this court, also know will result in the reversal of the judgment. Some of the cases are: Cluett v. Rosenthal, 100 Mich. at pages 199, 200 (58 N. W. 1009, 43 Am. St. Rep. 446); Strudgeon v. Village of Sand Beach, 107 Mich. 505 (65 N. W. 616); Britton v. Railroad Co., 118 Mich. 493 (76 N. W. 1043); Mott v. Railway Co., 120 Mich. 135 (79 N. W. 3); Smith v. Jennings, 121 Mich. 395, 397 (80 N. W. 236); People, ex rel. Esper, v. Plank-Road Co., 125 Mich. 366 (84 N. W. 290); Johnson v. Railway Co., 135 Mich. 353, 360 (97 N. W. 760); Hillman v. Railway, 137 Mich. 184 (100 N. W. 399); Hughes v. City of Detroit, 161 Mich. 288 (126 N. W. 214, 137 Am. St. Rep. 504); Morrison v. Carpenter, 179 Mich. 221 (146 N. W. 106, Am. & Eng. Ann. Cas. 1915D, 319); Wells v. Railroad Co., 184 Mich. 16 (150 N. W. 340); Jolman v. Alberts, 186 Mich. 645 (153 N. W. 11); Mortensen v. Bradshaw, 188 Mich. 442 (154 N. W. 46).

The argument was highly improper.

The judgment is reversed, and a new trial ordered, with costs to defendant against the plaintiff.

Kuhn, C. J., and Stone, Bird, Steere, Brooke, and Fellows, JJ., concurred. Ostrander, J., did not sit.


source: Caselaw Access Project

author: Moore, J. Brooke, J.

license: Public Domain

text:
    SPRENG v. DETROIT UNITED RAILWAY.
    1. Appeal and Error — Directed Verdict — Scope of Review.
    In the case of an adverse directed verdict, the testimony introduced hy the plaintiff should be taken as true and treated in the light most favorable to plaintiff.
    2. Street Railways — Highways and Streets — Rights of Pedestrians — Negligence—Contributory Negligence.
    It must be presumed that a very large and heavy woman 86 years of age thinks that she has time to cross street car tracks near the middle of a block where, at the time she steps off the curb, she observes a car 300 feet away beyond a street intersection at which point a prospective passenger is waiting for it, although the car does not stop for the passenger and comes on at á high rate of speed.

      3. Same.
    A pedestrian who is 86 years of age and is very heavy, has the right, in the exercise of due care, considering her age and clumsiness, to travel across a street near her home on which a street railroad runs.
    4. Same —Negligence — Evidence — Sufficiency — Question for Jury.
    In an action for the death of a pedestrian by a street car while crossing a street near the middle of a block, evidence held, sufficient .to go to the jury on the questions of negligence and contributory negligence. Brooke, J., dissenting.
    Error to Wayne; Hosmer, J.
    Submitted June 8, 1917.
    (Docket No. 24.)
    Decided July 26, 1917.
    Case by Julia Spreng, administratrix of the estate of Frances Spreng, deceased, against the Detroit United Railway for the negligent killing of plaintiff’s intestate. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Reversed.

      Lucking, H elf man, Lucking & Hanlon, for appellant.

      Corliss, Leete & Moody and William G. Fitzpatrick, for appellee.
   Moore, J.

This case is brought under the survival act to recover damages for injuries received by Mrs. Frances Spreng, on the afternoon of the 8th day of June, 1914, resulting in her death on the 14th day of October following. The trial judge held that while he was “not prepared to say that the motorman in charge of the car was not guilty of negligence,” yet he believed deceased was guilty of contributory negligence, and directed a verdict for defendant. The case is brought here by writ of error.

The sole question is whether the case should have been submitted to the jury under proper instructions. It is well settled that in the case of an adverse directed verdict, the testimony introduced by the plaintiff should be taken as true and viewed in the light most favorable to plaintiff. Larskowski v. Railway, 193 Mich. 409 (159 N. W. 530); Putnam v. Railway, 164 Mich. 342 (129 N. W. 860); Erdman v. Railway, 175 Mich. 691 (141 N. W. 542).

Mrs. Spreng was struck by a south-bound street car on Oakland avenue, between Marston and Mt. Vernon avenues in the city of Detroit. The defendant operates double and parallel tracks running in a southerly and northerly direction on Oakland avenue; the west track being used for cars going in a southerly direction and the east track for north-bound cars. Marston avenue runs in an easterly and westerly direction. Mt. Vernon avenue is the first street north of Marston. An alley extending east and west intersects Oakland between Marston and Mt. Vernon near the middle of the block.

The deceased was a woman 86 years of age and in good health. She was a very large woman, weighing 250 pounds. She managed her home and cared for an invalid daughter, the other children working. On the afternoon in question she had been to a grocery store and bakery shop situated on the east side of" Oakland avenue. She came out of the bake shop with a paper sack in her hand. She dropped a small parcel, and Mr. George L. Smith, one of the witnesses, picked it up for her. She was then near the line between the bake shop and the grocery, about 20 feet north of the alley. Mrs. Spreng lived at 259 Marston court, which was west of Oakland on the north side of Marston. When Mrs. Spreng was “at the curb,” and started to cross, one of defendant’s Oakland avenue cars was coming south and was a block away from her. A man was on the northwest corner of Mt. Vernon and Oakland, waiting to board the car. Mr. Smith, who picked up the package for Mrs. Spreng, testified, in substance, that when Mrs. Spreng started across the street the south-bound car was a block away from her.

“Q. Did you hear a. gong?
“A. Oh, yes.
“Q. When you heard the gong was your attention attracted to where she was?
“A. I heard the gong plain, and I expected the driver would slow up, and let her get by, for she apparently — I did not think — she did not look to me as though she was able to turn around in the position she was.
“Q. Where was she at this time; that is,"how far across the track was she?
“A. Well, when I heard the gong, sne was on the tracks, but just exactly where I could not say.
“Q. Did you see her — that is what attracted your attention, the gong attracted your attention?
“A. Yes, sir.
“Q. Did you see her when she was struck; did you see the car strike her?
“A. I see the car shoot by. You see she was on the opposite side to me.
“Q. Could you tell about how far she would have to go to get safely across?
“A. Well, I could not. I would think if she was a yard from the car she would have been all right.
“Q. Just what do you mean by that?
“A. Well a step, a yard.
“The Court: If she had been a yard further, she would have been all right?
“A. Yes, sir.
“Q. If she had been a yard further she would have been in safety beyond the rails?
“A. I think so.”

The record shows Mrs. Spreng was thrown on the opposite side of the street from where she had started, indicating she had passed the center of the south-bound car when she was struck and had nearly reached a point of safety. The testimony is that when Mr. Smith heard the gong the car was about 80 feet away.

Two' 9-year-old boys saw the car coming from the north and say a man was at the intersection of Mt. Vernon and Oakland, waiting to take the car; that it stopped at Melbourne, but did not stop at Mt. Vernon.

“Q. Just go right ahead and tell what happened?
“A. And then Mrs. Spreng she just had one more step to take, then she would have been out of the way, clear from the car, but before she could take that one step the car had hit her.
“Q. Where were you standing when Mrs. Spreng had been hit?
“A. Corner of Marston and Oakland.
“Q. And did you see her try to cross the street?
“A. Yes, sir.”

Another witness testified, in substance, that:

He saw the car coming, and a man was at the corner waiting for it. “What drawed my attention, sir, was a gentleman standing on the corner, and I heard the car, * * * and I saw him try to stop for this one on the corner, and he could not do it, and the fellow tried to run to catch it, and he made a few steps, I judge — what I mean by running he made a few steps to make believe he was going to catch the car you see; then the motorman put on more speed, and he went on from there. He saw he could not stop to get this fellow, see, so he went on from there. * * * The man was standing on the northwest corner of Oakland and Mt. Vernon, waiting for the car. And the car did not stop.
“Q. Now then, when the car — did the car slacken up any at the time you heard this rumbling noise?
' “A. A little; yes, sir.
“Q. But it did not come to a stop?
“A. No, sir.
“Q. And the man did not get on?
“A. No, sir.
“Q. Then what did the motorman do after the car passed the northwest corner?
“A. After the car passed the corner there he put on more speed. When he got in front of the hardware store which drawed my attention, he rang the gong of the car. * * *”

He says he saw Mrs. Spreng between the tracks, that she" was between the rails of the south-bound track, and that the car was going 20 to 22 miles an hour; that Mrs. Spreng was hit by the car and thrown clear of the track on the west side of it. We have abbreviated the testimony offered by the plaintiff. None was offered on the part of the defendant.

It is fair to assume that if Mrs. Spreng looked, she would have seen what Mr. Smith and the other witnesses saw; that is, when she started to cross the street, a car approaching her 300 feet away, with an intervening street at which a man was standing waiting for the car. It is not likely Mrs. Spreng desired to,'be hit by a heavy moving street car. She is not here to tell what she saw and thought, but it is not a violent presumption to conclude from all the testimony and circumstances that she thought she had time to cross the street in safety. In fact the record shows that she nearly did so, and some of the testimony indicates that if the motorman had been exercising due care, she would not have been hurt.

The respective rights of street cars and pedestrians have frequently been discussed by this court. Though Mrs. Spreng was 86 years old and very large, she had a right, in the exercise of due care, considering her age and clumsiness, to travel across the streets near her home. The principles of law involved are not new. Some of the cases in which they are stated are Ryan v. Railway Co., 123 Mich. 597 (82 N. W. 278) ; Gaffka v. Railway, 143 Mich. 456 (106 N. W. 1121); La Londe v. Traction Co., 145 Mich. 77 (108 N. W. 365); McQuisten v. Railway Co., 147 Mich. 67 (110 N. W. 118); Deneen v. Railway Co., 150 Mich. 235 (113 N. W. 1126, 13 Am. & Eng, Ann. Cas. 134); Seebach v. Railways Co., 177 Mich. 1 (142 N. W. 1086); Millette v. Railway, 186 Mich. 634 (153 N. W. 10).

We think the case should have been submitted to the jury.

Judgment is reversed, with costs to the plaintiff against the defendant.

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

Brooke, J.

I am of opinion that a verdict was properly directed.

Ostrander, J., did not sit.


author: Brooke, J.

text:
    SLATTERY v. TILLMAN.
    1. Replevin — Damages—Evidence—Admissibility.
    Evidence in an action of replevin of an automobile in wbicb damages were sought for unlawful detention in defendants’ repair shop, that tbe car bad been used daily up to tbe time it was delivered for repairs to defendant and that it bad earned in tbe month previous an average of $10 per day, was not inadmissible as being speculative, but was admissible as a basis for assessment of damages.
    2. Same — Automobiles—Liens—Evidence—Harmless Error.
    In an action of replevin of an automobile left with defendants for repairs and on wbicb defendants claimed a lien for additional repairs necessitated by an injury to tbe car sustained in testing it out after repairs bad been made, evidence as to tbe custom of defendants as to trying out cars brought for repairs was harmless error.
    3. Appeal and Error — Scope oe Review.
    Error in tbe admission of evidence will not be considered on appeal where no objection was made or exception taken in tbe trial court.
    4. Master and Servant — Scope op Employment — Automobiles.
    An employee of garage owners is acting within tbe scope of bis employment, in acceding to tbe request of tbe son of* the owner of an automobile left for repairs for a demonstration of tbe tborougbness and value of the repairs to a clutch by running the automobile up and down a hill, although not specifically directed to perform such act by his masters.
    Error to Houghton; O’Brien, J.
    Submitted June 7, 1917.
    (Docket No. 8.)
    Decided July 26, 1917.
    Replevin by Patrick Slattery against A. A. Tillman and another for the possession of an automobile. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Burritt & Burritt, for appellants.

      Anthony Lucas, for appellee.
    The following facts appear undisputed in this record : On August 2,1915, the plaintiff, being the owner of an automobile, caused it to be delivered at the garage of defendants for the purpose of having certain repairs made to the clutch. The repairs were made on that day at a cost of $84.86. Plaintiff’s son, who was employed by his father, was in defendant’s garage when the job was completed. Defendant’s son ran the car back and forth upon the floor of the garage three or four times to test the clutch, and thereafter ran it out upon the street and around the block. Defendant’s son was an employee in the defendant’s garage. After the car had been run around the block plaintiff’s son said to defendant’s son: “Try it on a hill. See how the clutch will pull.” Whereupon defendant’s son, who was sitting in the front seat, asked one Roach, who had been engaged in the repair of the clutch, to get in the front seat with him, and plaintiff’s son and one Beauchamp occupied the rear seat.
    Roach, who was sworn on behalf of the plaintiff, testified as follows:
    “After driving up and down Hancock street, we went up around White street, past the Scott Hotel, and what is commonly known as ‘Hairpin Turn,’ and turned to the left and went down past the sehoolhouse, intending to go down town, I believe, over Elevation street. We went down Oak street till we got to Elevation street, and there we turned over. We were running at a good rate of speed when we turned the corner, and I don’t know what happened.”
    The overturning of the car damaged the radiator, broke the wind shield and the steering wheel, and plaintiff’s son sustained a fracture of one leg. The car was removed to the garage of defendants where, without consultation with any person, they immediately commenced to repair it. A day or two later plaintiff himself went to defendants’ garage, and there had a conversation with defendant A. A. Tillman, in the course of which he expressed the belief that the car could not be repaired, but was assured by Tillman that it could be made as good as new. At this conversation plaintiff neither authorized nor requested repairs to be made, nor did defendant notify plaintiff that he would make said repairs at plaintiff’s expense. Plaintiff testified that he understood that defendants, recognizing their responsibility for the damage to the machine, were making the repairs at their own expense, while defendant Tillman testified that he made the repairs believing plaintiff to be liable therefor, and in the expectation that he would receive proper compensation for the same. The repairs to the machine having been completed by the 30th day of August, plaintiff’s son demanded the same on behalf of the plaintiff, and tendered to defendant the sum of $34.36, the amount of the cost of repairs to the clutch. Defendant, however, refused to deliver the machine unless the entire cost of repair was paid, which, together with the $34.36, amounted to $108. Plaintiff thereupon, and on the 2d day of September, secured possession of his machine by a writ of replevin.

      At the conclusion, of the testimony a motion for a directed verdict in favor of defendants was denied. The court, after stating the claims of the parties, charged the jury in part as follows:
    “Now, gentlemen of the jury, the burden of proof is upon the plaintiff to establish, by a fair preponderance of the evidence, all of the facts upon which he bases his right to recover in this case, and there is no dispute that the plaintiff is the owner of the car, and the only question for you gentlemen to decide will be as to whether or not the plaintiff was liable for the repairs made on the car after the damage was 'done to the car in the accident.
    “The burden of proof is upon the defendants to show that the plaintiff is liable for the repairs made to the car after it was damaged in the accident. The burden of proof is upon the defendants to show that they had a lien on the car for such damages, and I charge you as a matter of law that, if the defendants show by a fair preponderance of the evidence that the plaintiff assumed liability for those repairs made after the accident, then the defendants would have a lien upon the car for the amount of repair and reasonable value of those repairs, and there is no dispute about that, amounting to $73.50, and your verdict in that event would be for the defendants.
    “On the other hand, if the defendants fail to establish by a, fair preponderance of the evidence that the plaintiff is liable for those repairs made after the acci-' dent, then your verdict should be for the plaintiff, because in that event the defendants would have no lien on the car at all, for the reason that they would lose their lien after the tender made by the plaintiff, in regard to which there is no dispute, of $34.36, and your verdict would be, in that event, for the plaintiff, allowing the plaintiff such damages for the unlawful detention of the car as you may find to be established by the evidence. It appears that the car was not delivered for two or three days, either for one, two, or three days, say, after it was demanded by the plaintiff’s son.
    # “The burden of proof is upon the plaintiff to prove his damages by a fair preponderance of the evidence.

      “Now, gentlemen of the jury, you are not trying the question in this case as to who was liable for the accident that occurred on the hill, and the only reason why that testimony is introduced in this ease and admitted is for the purpose of aiding you in determining the main question as to whether or not the defendants voluntarily repaired that car at their own expense, without any expectation of holding the plaintiff liable for the repairs, or whether they repaired that car under circumstances which make the plaintiff liable to pay for the repairs.
    “Now, gentlemen of the jury, if the plaintiff stood by and knew that the defendants were repairing the car, and from all of the circumstances had reason to believe that the others were repairing the car at the plaintiff’s expense and not their own expense, then the plaintiff would be liable for those repairs, even thpugh he did not expressly order the repairs. But, on the other hand, if the defendants assumed and undertook to repair the car at their own expense, and if the plaintiff supposed from the circumstances, and had good reason to suppose, that the defendants were repairing the car at their own expense, and not expecting to charge him for the repairs, then the plaintiff would not be liable for the repairs, and consequently the defendants would have no lien upon the car for those repairs, and would have no right to hold the car after it was demanded,, and the sum tendered for the repairs that had been made before the accident.
    “Now, as I say, the burden of proof is upon the defendants to establish by a fair preponderance of the evidence the plaintiff’s liability for those repairs made after the accident; and, if you find from all the circumstances that the plaintiff is impliedly liable to pay for those repairs, then it was his duty to tender the full amount of the defendants’ bill before he could obtain possession of his car, and having failed to do that, he would have no right to bring a suit of replevin, and your verdict in that event would *be for. the defendants. On the other hand, if the defendants have failed to establish that fact by a fair preponderance of the evidence, that is to say, that the plaintiff assumed that liability, then your verdict must be for the plaintiff.”
    A verdict was returned in favor of the plaintiff, with damages for unlawful detention by the defendants in the sum of $20.
   Brooke, J.

(after stating the facts). Defendants, reviewing the case in this court, rely upon the following errors:

“First. Error committed by the court in permitting plaintiff to show previous earnings of his car as a basis for damages, and refusal to strike out such testimony on motion.
“Second. Error committed by the court in permitting plaintiff to offer evidence as to the custom of defendants’ garage.
“Third. Error committed by the court in receiving testimony as to what was said by defendant Tillman concerning the careless and reckless driving of his son.
“Fourth. Error committed in the charge of the court. Error committed by the court in not directing a verdict for the defendants.”

First. As- a basis for recovering damages for the unlawful detention of the machine, plaintiff’s son was permitted to testify, over objection, to the fact that the car in question had been in use up to the day it was delivered to the defendants for repairs, and that it had earned in said month over $300, or an average of over $10 per day. Books of account were produced to verify the testimony of the plaintiff in this regard. It is the contention of defendants that this testimony was improperly admitted, and that it was an improper basis for the assessment of damages, because wholly speculative and conjectural, citing Aber v. Bratton, 60 Mich. 357 (27 N. W. 564); Dowagiac Manfg. Co. v. Corbit, 127 Mich. 473 (86 N. W. 954, 87 N. W. 886); Truman v. Machine Co., 169 Mich. 153 (135 N. W. 89). We are of opinion that the case at bar is readily distinguishable from those cited, and that it falls rather within the reasoning of Allison v. Chandler, 11 Mich. 542, and Eitzen v. Hilbert, 165 Mich. 650 (131 N. W. 449).

Second. Claud Roach, one of defendants’ employees and the man who was in the machine at the time of the accident, was permitted to give the following testimony over objection:

“Q. What was the custom of Mr. Tillman’s garage for the time you had been working there as to trying out cars after they had been brought there for repairs ?
“A. Usually if a clutch or anything of that kind, any vital part, is put in the car, it is tried out on the road to find out whether they were right or not. In order to test a clutch you have to have a rough or hilly road to find out whether it is transmitting the power. You would have to climb a hill or give it hard going.”

There was no prejudicial error in the admission of this testimony.

Third. We are unable to discover any objection or exception covering the eighth assignment of error.

Fourth. It was and is the claim of defendants that they were entitled to a lien upon the car for the value of the labor and material expended in and about its repair after the accident, upon the theory that the defendant’s son in running the car up and down the hill for the purpose of testing the clutch was acting as the agent of plaintiff, through the request of plaintiff’s son and employee. We think it conclusively appears from this record that at the time of the accident the car was in the possession of the defendants, and that a request by plaintiff’s agent for a demonstration of the thoroughness and value of the repairs contracted for was a reasonable one. It seems to us clear that in acceding to the request for this demonstration, defendant’s son was acting within the scope of his employment, even though he was not specifically directed to perform said act by his masters, the defendants. The jury by their verdict have found that there was no contract, either express or implied, between the parties by the terms of which the plaintiff either ordered or agreed to pay for the repairs in question, and under the conceded facts in the case we do not see how they could have well reached a different conclusion.

It is the contention of the defendants that, the facts being conceded, the court should have directed a verdict in their favor as a matter of law. With this contention we are unable to agree. Inasmuch as the jury reached a proper conclusion under the charge submitting the question to them, it is unnecessary to determine that the plaintiff was entitled to the direction of a verdict upon all questions except as to the measure of damages.

The judgment is affirmed.

Kuhn, C. J., and Stone, Bird, Moore, Steere, and Fellows, JJ., concurred. Ostrander, J., did not sit.


author: BROOKE, J.

text:
    MERRILL v. MYERS.
    1. Taxation — Redemption from Sade — Notice—Service.
    Under Act No. 270, Pub. Acts 1909 (1 Comp. Laws 1915, § 4138), service of a notice by a tax title purchaser of premises to the owner to redeem upon such owner by leaving it with the owner’s wife in the owner’s absence is sufficient.
    2. Same — Redemption from Sate — Laches.
    The owner of land which has been sold for taxes is guilty of gross laches depriving him of the right to redeem and of equitable relief where he learns of the service of notice to redeem by leaving the notice with his wife four months after the service, the wife having mislaid the notice, and, after writing the purchaser for information as to the amount of the lien, receives a reply referring him to the county treasurer three weeks before the expiration of the six months’ period, and he fails to write to the county treasurer until about three weeks after the expiration of such period, although the notice does not give the amount of the sheriff’s fees for service.
    Appeal from Emmet; Shepherd, J.
    Submitted June 19, 1917.
    (Docket No. 91.)
    Decided July 26, 1917
    Bill by Homer F. Merrill against Rufus L. Myers to redeem from the sale of land for taxes. From a decree for plaintiff, defendant appeals.
    Reversed.

      C. J. Pailthorp, for plaintiff.

      Halstead & Halstead, for defendant.
    The bill in this case is filed for the purpose of compelling defendant, upon the payment of $27.10, to re-convey to the plaintiff certain lands, the title to which defendant had secured through purchase at the annual tax sales in the year 1913; the tax having accrued in the year 1910. On August 18, 1914, the following notice was served on plaintiff:
    “To the Owner or Owners of Any and All Interest in or Liens upon the Land Herein Described:
    “Take notice that sale has been lawfully made of the following described land for unpaid taxes thereon, and that the undersigned has title thereto under tax deed or deeds issued therefor, and that you are entitled to a reconveyance thereof at any time within six months after return of service of this notice upon payment to the undersigned, or to the register in chancery of the county in which the lands lie, of all sums paid upon such purchase, together with one hundred per centum additional thereto, and the fees of the sheriff for the service or cost of publication of this notice, to be computed as upon personal service of a declaration as commencement of suit, and the further sum of five dollars for each subscription, without other additional cost or charges. If payment as aforesaid is not made, the undersigned will institute proceedings for possession of the land.
    • “Description of land: State of Michigan, county of Emmet, north half of southeast quarter Sec. 36, town 35 north, range 4 west. Amount paid, $9.05. Tax for year 1910. Amount necessary to redeem, $23.10, plus the fees of the sheriff.
    “Rufus Myers,
    “Place of Business: Alanson, Michigan.
    “To Homer F. Merrill, Last Grantee in the Regular Chain of Title of Such Lands, or of Any Interest Therein, as Appearing by the Records in the Office of the Register of Deeds of Said County.”
    The sheriff’s return of service follows:
    “State of Michigan,
    County of Cheboygan,
    SS. :
    “I do hereby certify and return that on the 18th day of August, A. D. 1914, I served a notice of which the within is a true copy upon Homer F. Merrill, to whom said notice is addressed, by personally delivering such notice to the said above-named person in said county of Cheboygan, the said person being a resident of said county.
    “Byron M. Watson,
    “Sheriff of the County of Cheboygan.
    “My fees, $4.00.”
    Proof of service was filed with the county clerk on the 27th day of August, 1914. The proofs disclosed that service of the notice was not made personally upon plaintiff, Homer F. Merrill, but was on said date (August 18, 1914), left with the wife of said plaintiff, Anna Merrill, with the request that she hand it to her husband; he being absent at the time. The bill avers that plaintiff’s wife, instead of calling the notice to his attention, mislaid the same, and that he did not learn of it until some time later, to wit, “on or about the 15th day of December, 1914.” Plaintiff wrote the defendant, for the purpose of redeeming said parcel of land, and requested defendant to advise him of the amount of defendant’s lien, which letter was addressed to the defendant at Alanson, Mich. To this letter, which was forwarded to defendant in Kansas, defendant made the following reply:
    “Arcadia, Kan., Jan. 30, T5.
    “H. F. Merrill,
    “Millington, Mich.

      “Dear Sir: Your letter was forwarded to me here. In reply would say I cannot settle with you as I understand it. You must settle it at the county treasurer’s office at Petoskey.
    “Yours respectfully,
    “Rufus L. Myers, - “Alanson, Mich.”
    Plaintiff thereafter, and on March 22d, wrote the following letter:
    “Millington, Mar. 22.
    “The County Treasurer,
    “Petoskey, Mich.

      “Dear Sir: I wrote to R. L. Myers in regard to the taxes on the eighty acres inclosed. He said I would have to settle with you, so wish you would look it up and let me know as soon as possible how much there is to be paid, and I will fix it right up. Thanking you, “Yours truly,
    “H. F. Merrill,
    “Millington.”
    This letter was handed to the county clerk, who replied as follows:
    “Petoskey, Mich., Mar. 24,1915. “Mr. Homer Merrill,
    “Millington, Mich.

      “Dear Sir: Mr. White, the county treasurer, has handed me your letter to him relative to the redemption of the inclosed tax matter. In reply will say that this matter has passed the period in which I have the authority to settle. The matter is now between you and Mr. Myers. The tax notice was filed in this office Aug. 27, 1914, and you then had six months, or until Feb. 27, 1915, in which to redeem through this office. The amount necessary to redeem during that time was as follows:
    Double the tax $9.05 ........................... $18.10
    For each, description .......................... 5.00
    Sheriff’s fees .................................. 4.00
    Filing fees .....................................25
    “If you want to settle this up, write to Rufus L. Myers, Alanson, Mich.
    “Yours very truly,
    “Allen C. Madlem,
    “County Clerk.”
    It was claimed in the court below, and is urged here, that the plaintiff is entitled to a reconveyance:
    A. “Because the service of the notice of reconveyance, by leaving the same with the wife of the plaintiff, during the latter’s temporary absence from home, is not such a service as is contemplated by the law.”
    B. “Because it was the duty of defendant to furnish the plaintiff, when requested, with a statement of the amount due him from the latter in order to entitle said plaintiff to a reconveyance, and that defendant’s refusal to furnish such information operated as an extension of the time of redemption until such information was furnished.”
    The court below held against the plaintiff upon the first proposition, but in his favor upon the second, and made a decree providing for a reconveyance upon the payment of the sum of $27.10. From this decree defendant appeals.
   BROOKE, J.

(after stating the facts). Under the conceded facts, the service in this case was good, and was within the terms of the statute, which provides:

“That such service may be made upon any resident of this State by leaving such notice at his usual place of residence with some member of his family of mature age.” Act No. 270, Pub. Acts 1909 (1 Comp. Laws 1915, § 4138).

According to the averment of the bill of complaint, plaintiff had actual notice of the situation more than two months before the expiration of the six months period provided by the statute for redemption. By his own showing he must have received defendant’s letter, referring him to the county treasurer, more than three weeks before the expiration of said time. The period of redemption expired on February 27th, yet we find that he did not write to the county treasurer until March 22d, after said period had expired. With reference to the notice the learned circuit judge said:

“Plaintiff had to know the amount of the sheriff’s fees before he could redeem. The notice did not furnish the information. He could not be expected to decide by his own investigation, and decide correctly, at the peril of losing his land for not tendering a large enough amount, or of losing his money if he tendered too large an amount. There might be a very serious question as to what was the correct and legal amount of the sheriff’s fees. Two sources of information were open to him, the defendant and the county clerk, or register in chancery. He could not redeem without this knowledge. He sought it from the defendant, who had caused the notice to be given, and who, in effect, refused to give the information. By his conduct he reduced the number of places where the statute provided redemption might be had from two to one. Such action should extend the period of redemption, so as to allow the plaintiff in this case to redeem.”

With this conclusion we are unable to agree. The notice advised the plaintiff that he could make payment either to the undersigned or to the register in chancery of the county. Plaintiff could have readily ascertained the amount of the fees from the register, and it was his duty to have .done so. It is impossible to escape the conclusion that in this case the plaintiff was guilty of the grossest laches, and that, having through such laches lost his right to redemption within the time fixed by the statute, the courts are powerless to aid Mm. Paine v. Boynton, 124 Mich. 194 (82 N. W. 816); Rousseau v. Riihiniemi, 186 Mich. 653 (153 N. W. 23).

The decree of the court below must be reversed, and the bill dismissed, with costs to appellant.

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


text:
    GOLDBERG v. PEERLESS PATTERN CO.
    Appeal and Error — Scope oe Review — Objections Not Raised on Trial.
    A judgment for plaintiff will be affirmed where assignments of error in refusing a continuance because of the absence of a defendant corporation’s president and in refusing a new trial because of the inability of such officer to be at the trial are not supported by objections or exceptions, and defendant’s attorney, after denial of the motion for continuance, participated in the trial without objection to the proceedings, and these are the only questions involved.
    Error to Wayne; Hosmer, J.
    Submitted June 28, 1917.
    (Docket No. 113.)
    Decided July 26, 1917.
    Attachment proceedings by Jacob E. Goldberg and Samuel X. Goldberg, copartners as Goldberg Bros., against the Peerless Pattern Company. Judgment for plaintiffs. Defendant brings error.
    Affirmed.

      Edward PoJcorny, for appellant.

      Percy W. Grose, for appellees.
   Brooke, J.

By the filing of a plea of the general issue with notice thereunder, this case became at issue on February 25, 1915. Having been set for trial in the Wayne circuit court, a motion was made on April 26, 1916, for a continuance upon the ground that defendant’s president, John W. Wright, was a student at law in the State of New York, and that it was necessary for him to prepare for his examination in the latter part of May, and that therefore he would be unable to attend the trial of this case until the first week in June. An affidavit in opposition to the continuance was filed by plaintiff, by which it appears that the case at bar is the second of two cases between the same parties and arising out of the same contract; each case involving unpaid rent for a certain period. By said affidavit it further appears that defendant’s president was sworn at the first trial, which resulted in a judgment against defendant, which was later paid. It further appears that counsel for plaintiff was willing to consent that the testimony of said Wright, given in the earlier case, might be admitted in evidence in the case at bar. The motion for a continuance was denied, but the case was not actually reached for trial until May 21, 1916.

The record discloses no objection or exception to the denial of the motion for continuance, and shows that defendant’s attorney appeared at the trial, participated therein, and made no objection to proceeding therewith. On May 27, 1916, defendant made a motion for a new trial, based upon the fact that its president, Wright, was a material witness, and was unable to be present at the trial, and for the reason that a default of judgment had been rendered against defendant. This motion was supported by the affidavit of defendant’s president, in which it is stated that he was unable to be present by reason of the fact that he was absent on á business trip from his home office in New York City, and that his office was unable to reach him in order to advise him of the pendency of the trial. Counter affidavits were filed, and the motion was denied. No exception was taken to the denial of said motion.

There are 10 assignments of error, based upon the action of the court in refusing the continuance mentioned and in denying a new trial. No assignment is supported by an objection or an exception. This being the condition of the record,’ judgment will stand affirmed.

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


text:
    KALCIC v. NEWPORT MINING CO.
    1. Master and Servant — Workmen’s Compensation Act — Dependents — Presumptions.
    A wife is not entitled to the conclusive presumption of dependency upon the theory that she lived with her husband at the time of his death, under the workmen’s compensation act (Act No. 10, pt. 2, § 6, Extra Session 1912, 2 Comp. Laws 1915, § 5436), where she lived in a foreign country for seven years after her husband left to work in America, received less than ?100 per year during such period from her husband, purchased a small tract of land and built a small house out of the money received from her husband and earned a very small amount of money each month by her own efforts.
    2. Same.
    Evidence held, sufficient to sustain a finding that claimant was dependent as a fact upon her husband, although
      she earned forty to sixty cents per month, by ber own labor.

    Certiorari to Industrial Accident Board.
    Submitted June 18, 1917.
    (Docket No. 70.)
    Decided July 26, 1917.
    Antonija Kalcic presented her claim for compensation for the accidental, death of her husband in defendant’s employ. From an order awarding compensation, defendant brings certiorari.
    Affirmed.

      Flanders & Fawsett (Cummins & Nichols, of counsel), for appellant.

      Thomas A. Lawler and John F. Berry, for appellee.
    Appellant respondent in this proceeding reviews by certiorari an order of the industrial accident board by the terms of which claimant was awarded the sum of $8.70 per week for a period of 300 weeks. Said order modified the award of the arbitration board which had allowed the claimant only the sum of $1 per week during a period of 300 weeks.
    The facts which formed the basis of the action of the board may be briefly stated as follows: On January 13, 1907, one Louis Kalcic was married to claimant in Croatia, Austria-Hungary. On February 27, 1908, a child was born to this couple which died eight days later. On July 9, 1911, a second son was born, which still survives. Some time in the year 1907, Louis Kalcic left his home in Europe and came to the State of Michigan, and later secured employment with respondent as a miner. He paid one visit to his home in Croatia, apparently in the year 1910. He was the victim of an accident on the 21st day of May, 1914, which caused his death on May 22, 1914. His average weekly wage was $17.41. The testimony of his widow, the claimant, was taken, and in substance .was as follows:
    “My name is Antonie Kalcic, 28 years old, Roman Catholic religion, widow of the laborer Ljudevit (Louis) Kalcic from Prkos, No. 57, community Kloster Ivanic. I was born in Prkos in 1887, where I have lived since my birth. My father’s name is Vinko, and my mother’s Marie. My occupation is day-laborer. I am a widow now. I was married to Ljudevit Kalcic, and I inclose my marriage certificate as exhibit. My husband’s name was Ljudevit Kalcic. He was from Prkos. His parents’ names were Ljudevit and Katherine Kalcic. I lived with nay husband in Prkos in a home by ourselves. I lived with my husband one year. My husband left me in 1907. He left me and went to America because he could not earn anything here. He went to Painesdale, Mich. He worked in a mine. I received letters from him. I received the last letter from him at Easter time in 1914, written from Ironwood, Mich. I inclose this letter.
    “I was informed of the death of my husband by his brother Mijo Kalcic, who worked in the same mine and he also related it to me when he returned home in June, 1914.' My husband died in Ironwood in a mine. He was struck by 20 cu. m. of iron falling on him, in consequence of which he died the next day.
    “I have-two children with my husband, Josip and Ivo, of which the former died. Both were bom in Prkos, and I herewith submit their birth certificates. See exhibits 1, 2, 3, and 4. Josip died, but Ivo is still living. We lived in a rented house, and therefore my husband did not leave any estate here.
    “Out of the money which my husband sent me from America I bought 114 acres of land and built a small house on it. I received some letters from my husband, but I have only a letter and post card left, as the others have been destroyed. During the last year before his death I received about K400 (400 krone, about $80) from my husband through money orders. I received money from no one but my husband. During the absence of my husband I have earned K1 a day two or three times during a month. I had made up my mind to join my husband in America later. I could not do it until now, as I did not have the means. My husband wrote me, and asked me to come to America as soon as he earns enough money for the journey. My husband never told me that he was coming back home. I do not receive any money for the support of my child from any one. I am supporting my child. I wish that the compensation be paid to me in a lump sum, and not in installments for the reason that a gigantic famine is prevailing and I could profit more with a lump sum than with monthly installments.”
    On March 6, 1914, a little more than two months prior to his death, Louis Kalcic wrote his wife a postal card as follows:

      “Dear wife: You and our little son John please accept my best regards. I can inform you that I received your letter and understand everything you wrote. I am sending you 100 florins. Write if you have received the money. Also write me the news from home.
    “Good-bye,
    “Kalcic,
    “Ironwood, Mich., 200 Boni Str.”
    < — and on March 8, 1914, the following letter:
    “Ironwood, Mich., March 8th.

      “Dear wife: Accept, you and our little son Ivica, my best regards. I am glad to let you know I am alive and healthy and hope you are the same. Further I inform you that I received your letters and understand everything very. well. You wrote that I had plenty of time during four months to think about writing. What shall I write to you? Everything I write to you is true, you must concern yourself with somethings, for if you at home don’t want to care for anything, and if I here shall not care for anything, it would be a sad affair. You must know that what I earn, I could spend easily here, but I am always thinking of the future, and therefore have to be careful what I do. You know well that this is the seventh year I am in America, and we do not want to seem the poorest people in the village. I do not scold you as I have no reason to do so, but I am provoked that I write and you do not answer. It might be that the letter you wrote was. seized by somebody else. You should therefore not feel offended. Perhaps you have such a writer who does, not know how to write.
    “I greet our godfather and godmother, our family Milko and Ivica.
    “Further I will let you know that a few days ago I wrote you a postal card. Write whether you received the same. I also sent you 100 florins. Kindly acknowledge whether you got it or not. Buy yourself clothes and buy the little one and yourself everything you need. Write whether you have sold the hay or not. Write how everything is. I would advise you to buy. If there is a chance to buy a barn for four or five hundred florins, I will send you the money immediately. Build a barn, so it will be ready by fall, and do not write such nasty letters any more. I remain with good-bye,
    “Your husband,
    “L. Kalcic,
    “Ironwood, Mich., 200 Bonnie Str.
    “Regards to you from Dragich and to Ivica. Please answer. My dear wife, that wood which we have at home you should not distribute among others, as you will need it if you build a barn, or, if you do not need it now, we can use it when I come home and build a house.
    “Regards to you and to our little son Ivica. Write me the news immediately, also what you will do with the wood. Regards to father and mother. Drago send many regards to father and mother. He is still working and fond of saving. I would say much more if you would answer each one of my letters.”
    The record shows that during the absence of Louis Kalcic in America he sent to his wife in Austria various. sums amounting in all to about $640, and that he sent her during the last year of his lifetime about $80.

      On construction and effect of workmen’s compensation acts, generally, see comprebensive note in L. R. A. 1916A, 23.

   Brooke, J.

(a-fter stating the facts). The order of the board indicates that it was based upon the theory that claimant was wholly dependent upon her deceased husband at the time of the accident. It does not indicate whether the conclusion was reached upon the ground that the wife was living with the husband at the time of the accident, within the meaning of the statute, and therefore conclusively presumed to be totally dependent, or that the total dependency appeared from the proofs in the case. It is the claim of the respondent that in either case there was no support for the conclusion of total dependency. Counsel cite Finn v. Railway, 190 Mich. 112 (155 N. W. 721, L. R. A. 1916C, 1142); Ludwig v. Foundry Co., 194 Mich. 613 (161 N. W. 835); Nelson’s Case, 217 Mass. 467 (105 N. E. 357). Counsel for claimant seek to distinguish the cases cited upon the facts, and cite in support of their position the case of Northwestern Iron Co. v. Industrial Commission, 154 Wis. 97 (142 N. W. 271, L. R. A. 1916A, 366).

We are quite convinced that under the circumstances of this case the claimant is not entitled to the benefit of the conclusive presumption of dependency upon the theory that she lived with her husband at the time of his death. Part 2, § 6, Act No. 10, Extra Session 1912 (2 Comp. Laws 1915, § 5436). After specifying in said section those who shall be conclusively presumed to be wholly dependent, the act provides:

“In all other cases questions of dependency, in whole or in part, shall be determined in accordance with the fact, as the fact may be at the time of the injury.”

We are of opinion that the facts in this case differ very materially from those in the Ludwig Case relied upon by appellant. There we held there was no evidence of dependency in fact, because the decedent never supported his wife either in Austria-Hungary or in the United States. The contrary appears in the case at bar. Here the decedent during all the years of his absence from his wife and child contributed to their support and in the last year of his life sent to his wife about $80. A fair consideration of her testimony indicates, we think, the fact that she was wholly dependent upon her husband. Her trifling earnings, amounting to about 20 cents a day, two or three times a month, should not be held to change her status in this regard. Upon this point see Petrosino v. Arlington Mills, 2 Mass. W. C. C. 804. No definite rule can be laid down for the determination of the question of dependency. Each case must stand upon its own facts. After a careful consideration of all the evidence offered in the case at bar, we have reached the conclusion that the board was warranted in finding as a fact that the claimant was totally dependent upon her husband at the time of his death.

The award is affirmed.

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


text:
    PEOPLE v. BOLA.
    1. Intoxicating Liquors — Local-Option Law — Penal~Statutes— Construction.
    Act No. 381, § 2, Pub. Acts 1913 (2 Comp. Laws 1915, § 7119), relative to the labeling of liquors transported from a wet territory to a dry territory and providing for a penalty for the violation thereof, being a penal statute, must be strictly construed.
    2. Same — Local-Option Law — Labeling Packages — "Consignor” —“Consignee.”
    One who buys liquor in a county permitting the sale thereof and personally transports the same into a local option, county for his own use without having the packages labeled, in accordance with the act, is neither a consignor nor a consignee, and is not liable to’ the penalties of the act.
    Exceptions before judgment from Genesee; Stevens, J.
    Submitted June 15, 1917.
    (Docket No. 134.)
    Decided July 26, 1917.
    John Bola was convicted of violating the liquor law. Reversed, and respondent discharged.

      Clark M. Johnson (William E. Barrett, of counsel), for appellant.

      Roy E. Brownell, Prosecuting Attorney, and Homer J. McBride, Assistant Prosecuting Attorney, for the people.
   Brooke, J.

Respondent was convicted of a violation of section 2, Act No. 381, of the Public Acts of 1913 (2 Comp. Laws 1915, § 7119), which is as follows:

“It shall be unlawful for any person to consign, ship or transport in any manner whatsoever, or deliver any of the liquors mentioned in section one of this act to any person in any township, municipality or county where by law, either local or State-wide in its operation, the manufacture and sale of such liquors, for beverage purposes is prohibited, or for any person residing in such prohibited territory to receive any such liquors, unless there appears upon the outside of the package containing any such liquors the 'following information: Name and address of the consignor; name and address of the consignee; kind and quantity of liquor therein contained, and the statement either that such liquors are for personal and family use of the consignee, or for medicinal, mechanical, chemical, scientific or sacramental purposes. * * * Any consignee accepting or receiving any package containing any such liquors upon which appears a false statement, or any person consigning; shipping, transporting or delivering any such package, knowing that said statement appearing upon the outside thereof is false, shall be deemed guilty of violating the provisions of this act.”

The testimony introduced on behalf of the people shows that the respondent resides in the city of Flint, Genesee county, State of Michigan; that Genesee is a so-called local option county; that said respondent drove his automobile to the city of Saginaw in the county of Saginaw (a county not under local option), where he purchased 33 quarts of whisky and 245 pint bottles of beer, and that he brought the same into Genesee county without being labeled. Respondent admitted the purchase of the liquor in the city of Saginaw and its transportation into the county of Genesee. The record further discloses that said liquor was to be used by respondent himself and his friends and countrymen that he might invite to a birthday party to be given by him at his home on the following day in celebration of his nineteenth birthday. It is undisputed that the packages containing said liquor were not labeled as provided by section 2 of Act No. 381, Pub. Acts 1913.

The court charged the jury as follows:

“So I charge you that the bringing of that liquor for himself without _ it having been labeled and that label containing the information that the law requires, that was a violation of the law, and you must take it as I say, whether I am right or wrong. The court has a right to say to the jury that you may retire to your jury room and then will return a verdict of guilty. _ I so instruct you in this case, but I cannot direct it; you will have to deliberate yourselves upon the question. There are five or six cases to that effect in this State. You will retire, and it will be your duty, gentlemen, to return a verdict of guilty.”

The only question involved is whether a resident in a so-called local option county may purchase liquor in a county where such purchase and sale is lawful and transport the same, either upon his person or in his own conveyance, into a local option county for his own personal use, without having the packages labeled in accordance with the section above quoted. The statute is penal, and must be strictly construed. City of Lansing v. Brown, 172 Mich. 50 (137 N. W. 535).

It is the contention of respondent that the section in question contemplates two distinct parties in transporting and receiving liquors, namely, the consignor and the consignee; that there must be two parties involved, one in transporting and one in receiving, to make out a violation of the act; that the respondent cannot be both, and cannot be held for receiving said liquor in said “dry” county and for transporting it to any person in said “dry” county.

On behalf of the people it is urged that a careful reading of the section indicates that it was the legislative intention that all packages of liquor should be labeled including those brought in for personal use. The legality of the sale of the liquor in Saginaw county to respondent is not involved. He became its owner in a “wet” county. Thereafter he was neither consignor nor consignee of the same, and the section in question has no application to him in relation thereto.

The question of respondent’s good faith in the purchase and his intention as to the subsequent use of the liquor in question is not involved. If respondent used or disposed of the liquor in Genesee county in violation of the law, he would be liable under other sections of the statute. He cannot be properly convicted under the section invoked.

The conviction is reversed, and the respondent discharged.

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


text:
    BOYNE CITY HARDWARE CO. v. CHARLEVOIX CIRCUIT JUDGE.
    Appeal and Error — Bill op Exceptions — Time to Settle — Extension op Time — Discretion op Court — Statutes—Rules.
    The allowance of a motion for an extension of time for the settlement of a bill of exceptions more than four months after the furnishing of a transcript by the official stenographer is improper, as the discretion of the circuit judge in extending the time must be exercised only within the limits prescribed by Act No. 314, Pub. Acts 1915, chap. 18, § 62 (3 Comp. Laws 1915, § 12634), and Circuit Court Rule No. 66, the statute contemplating an extension of time where the official stenographer through pressure of business is unable to furnish a transcript within the 20-day limit.
    Mandamus by William S. Shaw and William Capelin, copartners as the Boyne City Hardware Company, to compel Frederick W. Mayne, circuit judge of Charlevoix county, to vacate an order extending the time for the settlement of a bill of exceptions.
    Submitted June 26, 1917.
    (Calendar No. 27,851.)
    Writ granted July 26, 1917.

      Harris & Ruegsegger, for plaintiffs.

      M. E. Silverstein (Clink & Williams, of counsel), for defendant.
   Brooke, J.

In this case, upon issue joined, a judgment was entered in favor of the plaintiffs (relators here) , on June 8,1916. On the same day a stay of 20 days was granted the defendant in which to move for a new trial or settle a bill of exceptions, and on filing a stay bond a further extension of 60 days was granted. No further steps were taken by defendant in the case until November 15, 1916, when a stay bond was filed. On February 1, 1917, defendant made a motion for an extension of time to settle a bill of exceptions. This motion came on to be heard on the 15th day of February, 1917, and an order was then made extending the time to settle a bill of exceptions 30 days from that date. Affidavits in support of the motion for an extension of time show that the transcript of the testimony was not furnished by the stenographer until the 20th day of September, 1916 (this was more than four months before the motion for an extension of time was made). They further show that the case was heard before a nonresident judge, and that—

“said bill of exceptions could not be settled before the circuit judge who tried the case without the ap-’ parent necessary expense of going to Lansing, Mich., excepting that Hon. Charles B. Collingwood would return to this judicial circuit, and that the settlement of the bill of exceptions could be taken up before him. Deponent further says that the said judge has not as yet returned to this judicial district. Deponent further says that Hon. Frederick'W. Mayne of this judicial district has spent most of his time at Detroit and other places since the transcript in the above-entitled case came into the hands of this deponent, and consequently a motion to extend the time for settling a bill of exceptions could not be brought before him without the apparent necessary expense of going to Detroit or locating him elsewhere for the purpose of making the motion.”

The record shows that after the entry of said judgment, sessions of said court were held in the county of Charlevoix on the 21st day of August, on the 25th day of August, on the 30th day of August, the 23d day of September, and the 10th day of November, and that a regular term of said court was appointed to be held, and was held, in said county of Charlevoix on the 4th day of December, 1916, and that the respondent circuit judge was present and presiding. It further appears that sessions of said court were held on the 2d day of January, the 5th day of January, and the 6th day of January, 1917.

Section 62, chap. 18, of Act No. 314, Pub. Acts 1915 (3 Comp. Laws 1915, § 12634), provides:

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

This court later promulgated Circuit Court Rule No. 66, relating to said section, which follows:

“Subject to the limitations prescribed by statute, and upon such terms and conditions as shall be deemed just, the court may grant such further reasonable time as shall be deemed proper for settlement of the bill of exceptions or case, and may extend such time when proper. But no more than sixty days’ further time shall be granted, for that purpose, except for good cause shown by affidavit on special motion after notice to the adverse party, or on the written stipulation of the parties.”

It is quite clear that the discretion of the circuit judge may be exercised only within the limits fixed by the statute and the rule. The statute contemplates an extension of time for settlement of a bill of exceptions in cases where the official stenographer through pressure of business is unable to furnish a transcript of the evidence within the 20-day limit. In the case at bar, although the certificate of the stenographer is relied upon,' that certificate shows that the transcript had actually been furnished upwards of four months before the application for an extension of time was made. The purpose of the statutory provision under consideration is to hasten, so far as possible, the final determination of litigated questions. Parties desiring to review judgments must act seasonably and courts may exercise discretion only within the statutory limitations.

The mandamus will issue as prayed.

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


author: Kuhn, C. J.

text:
    BOARD OF CONTROL OF THE MICHIGAN STATE PRISON v. AUDITOR GENERAL.
    1. Statutes — Construction—Duty oe Court.
    It is the duty of the courts to reconcile statutes, if possible, and to enforce them.
    2. State Prisons — Warden’s Salary — Statutes—Construction.
    Act No. 57, Pub. Acts 1907, §'20 (1 Comp. Laws 1915, § 1719), providing for the annual salary of the warden of the State prison and authorizing an increase by the board of control with the approval of the governor, does not conflict with Act No. 286, Pub. Acts 1907 (1 Comp. Laws 1915, §§ 1971-1974), providing that whenever, under the laws of the State, the “salary of any superintendent, president, secretary or any other officer, having direct executive management or control of any State institution, shall be fixed or changed by the board of control of such institution, payment thereof shall not be made until the annual or fixed salary so made shall be approved by the governor, auditor general and State treasurer, since the words “or any other officer,” under the doctrine of ejusdem generis, should be limited to the class of officers already named.

      Mandamus by the board of control of the Michigan State Prison to compel Oramel B. Fuller, auditor general, to approve certain salary vouchers.
    Submitted June 26, 1917.
    (Calendar No. 27,872.)
    Writ granted July 26, 1917.

      Douglas, Daman & Barber, for plaintiff.

      Alexander J. Groesbech, Attorney General, and Clare Retan and L. W. Carr, Assistants Attorney General, for defendant.
    The legislature of this State at its session of 1907 passed an act known as Act No. 57 of the Public Acts of 1907 (1 Comp. Laws 1915, § 1719), which was ordered to take immediate effect, and was approved April 25, 1907. The title and body of the act are as follows:
    “An act to amend section twenty of act one hundred eighteen of the Public Acts of eighteen hundred ninety-three, approved May twenty-six, eighteen hundred ninety-three, entitled ‘An act to revise and consolidate the laws relative to the State prison, the State house of correction and branch of the State prison in the Upper Peninsula, and to the house of correction and reformatory at Ionia, and the government and discipline thereof, and to repeal all acts inconsistent therewith,’ being section two thousand ninety-nine of the Compiled Laws of eighteen hundred ninety-seven.

      “The People of the State of Michigan enact:

    “Section 1. Section twenty of act one hundred eighteen of the Public Acts of eighteen hundred ninety-three, approved May twenty-six, eighteen hundred ninety-three, entitled ‘An act to revise and consolidate the laws relative to the State prison, the State house of correction and branch of the State prison in the Upper Peninsula, and to the house of correction and reformatory at Ionia, and the government and discipline thereof, and to repeal all acts inconsistent there-' with,’ being section two thousand ninety-nine of the Compiled Laws of eighteen hundred ninety-seven, is hereby amended to read as follows:
    “Sec. 20. There shall be paid monthly at the office of each prison to the officers thereof, the following annual salaries, to wit: To the warden, a sum not exceeding two thousand dollars; to the deputy, a sum not exceeding fifteen hundred dollars; to the clerk, a sum not exceeding one thousand dollars; to the physician, a sum not exceeding one thousand dollars; * * * to each of the keepers, a sum not exceeding one thousand dollars; to each of the guards, a sum not exceeding nine hundred dollars; as the board of the prison in its. discretion may deem for the best interests of the prison, and all other employees of each prison shall be paid such compensation, within the limits above fixed, as said board may deem just and reasonable and shall direct: Provided, That any individual salary may be increased beyond the limit named in the preceding clause by the approval of the governor. The warden shall, in addition to his salary, be allowed the use- of house, fuel, lights and provisions for his family, and for guests who visit him on business connected with the prison, and any officer may, in the discretion of the board, be allowed the use of a house or an apartment free of rent; and no officer or other person employed in or about the prison shall be permitted to receive in any way perquisites, emoluments or supplies for himself or his family from the prison, other than the compensation allowed by law. The board of the prison may, if it shall deem it for the interest of the prison, require the keepers, guards, and such of the employees as they may designate, to be lodged and messed or boarded in the prison, and for that purpose may furnish lodging rooms in a plain and substantial manner, and supply provisions from the prison stock, which shall be cooked and prepared by the labor of convicts, and served at such time and on such terms and in such place as the board may direct.
    “This act is ordered to take immediate effect.
    “Approved April 25, 1907.”
    At the same session Act No. 286 of the Public Acts of 1907 (1 Comp. Laws 1915, §■§ 1971-1974), was passed, ordered to take immediate effect, and was approved June 27, 1907. The title and body of this act are as follows :
    “An act to provide for the approval and regulation of salaries fixed and allowed by the boards of control of the various State institutions.

      “The People of the State of Michigan enact: “Section 1. Whenever, under the laws of this State., the salary of any superintendent, president, secretary or any other officer, having direct executive management or control of any State institution, shall be fixed or changed by the board of control of such institution, payment thereof shall not be made until the annual or fixed salary so made shall be approved by the governor, auditor general and State treasurer.
    “Sec. 2. It shall be the duty of all boards of State institutions authorized by law to fix the salary of the superintendent, president, secretary or other executive officer, to at once file with the governor and auditor general, a certified copy of the resolution of the board of control, so fixing or changing the annual or stated salary of any superintendent, president, secretary or other executive officer in the management of such institution.
    “Sec. 3. It shall not be competent for the governor, auditor general and State treasurer, to change, in their discretion or judgment, any salary fixed by the board of control, but they may refuse approval until the salary shall- be fixed by the board of control at an amount to meet their approval.
    “Sec. 4. The stated or annual salary fixed or changed by the board of control of any State institution and-approved by the governor and auditor general, and State treasurer, shall be indorsed on the resolution of the board of control, certified to the governor, and with the approval of all the officers herein specified shall be filed in the department of the auditor general.
    “This act is ordered to táke immediate effect. “Approved June 27, 1907.”
    The facts which brought about this proceeding are thus stated in the brief of the attorney general:

      “On June 6,1916, Nathan F. Simpson was the warden of the Michigan State Prison, and was at that time, and has since August 1, 1914, received an annual salary of $5,000 per annum. Prior to August 1, 1914, Mr. Simpson received an annual salary of $4,000 per annum. On that date the board of control of the Michigan State Prison adopted a resolution increasing Mr. Simpson’s salary from $4,000 per annum to $5,-000 per annum, which resolution was submitted to Hon. Woodbridge N. Ferris, then governor, Hon. John W. Haarer, then State treasurer, and Hon. Oramel B. Fuller, auditor general, for their approval, pursuant to the provisions of Act No. 286' of the Public Acts of 1907. On August 6, 1915, the board of control of the Michigan State Prison passed a resolution to increase Mr. Simpson’s salary from $5,000 per annum to $7,500 per annum, which resolution was presented to and approved by Hon. Woodbridge N. Ferris, then governor, and was also presented to Hon. Oramel B. Fuller, auditor general, and to Hon. John W. Haarer, then State treasurer, which resolution was in terms by them disapproved.
    “Mr. Simpson continued his services as warden of the Michigan State Prison at Jackson until December 22, 1916, when his resignation, which he had previously tendered and which had been accepted by the relator, took effect. Relator, then claiming that the method of regulating the salary of the warden of the Michigan State Prison was governed by Act No. 118 of the Public Acts of 1893, as amended by Act No. 57 of the Public Acts of 1907, caused three vouchers to be drawn, one for the sum of $2,078.80, one for the sum of $1,039.40, and one for the sum of $149.46, which amounts represented the difference between the payments actually made Mr. Simpson on the basis of $5,000 per annum and the amounts fixed in the resolution of August 6, 1915, viz., $7,500. Checks were issued for the" amounts of these vouchers, and said vouchers were presented to the respondent, who disallowed said payments and refused to approve said vouchers for the reason that so much of Act No. 118 of the Public Acts of 1893, as amended by Act No. 57 of the Public Acts of 1907, as relates to the method of regulating the salary of the warden of the Michigan State Prison was superseded by Act No. 286 of the Public Acts of 1907; whereupon relator made application for a writ of mandamus to compel respondent to approve said vouchers.”
   Kuhn, C. J.

(after stating the facts). The sole question which this controversy presents for determination is which of the two acts passed by the legislature of 1907 controls the method of regulating the salary of the warden of the Michigan State Prison. A careful reading of both of these enactments has satisfied us that they are not inconsistent with each other, and that both can stand. It will be noticed that Act No. 57 definitely and specifically fixes a salary schedule and provides a definite method for the increase of the salary fixed. It is urged by the attorney general that the language of section 1 of Act No. 286, “or any other officer having - direct executive management or control of any State institution,” should be held to control and include the warden of the State prison. Nowhere in this act is the warden referred to, and, unless the language just quoted can be held to include the warden, it clearly does not apply to him. Applying the doctrine of efusdem generis, we are of the opinion that the effect of the words “or any other officers” should be limited to the class of officers already named. See 36 Cyc. p. 1119. The legislature already having legislated with reference to the warden at the same session, if .they intended to include “warden” in Act No. 286, they could very easily have said so. The responsibility for these statutes rests upon the legislature. The duty of the courts is to reconcile them, if possible, and to enforce them.

In giving this construction to the statutes the necessary conclusion follows that the legislature by these acts did not attempt to cover the same ground, in which particular this case can readily be distinguished from the case of Detroit United Railway v. Barnes Paper Co., 172 Mich. 586 (138 N. W. 211), and the case of Port Huron Engine & Thresher Co. v. Township of Port Huron, 191 Mich. 590 (158 N. W. 19), cited in the brief of the attorney general. It also follows that the vouchers which were presented covering the increase in salary for Nathan F. Simpson.from $5,000 to $7,500 a year for the period of his services rendered, as covered by the resolution of the board of control of Michigan State prison and approved by the governor, should be paid.

As the action of the auditor general in refusing his approval to the vouchers was unquestionably caused by the uncertainty of the legislative provision, there will probably be no necessity for issuing the writ. No costs will be allowed.

Stone, Ostrander, Bird, Moore, Steere, ' and Brooke, JJ., concurred. Fellows, J., did not sit.


author: Per Curiam.

text:
    DWYER v. WAYNE CIRCUIT JUDGE.
    Divorce — Mandamus—Alimony, Nonpayment of — .Attachment— Right to Writ.
    There is no showing of a clear right to have an order for an attachment against a divorced husband for the nonpayment of alimony so as to authorize the issuance of a writ of mandamus against the circuit judge to review the denial of a motion to set aside an order denying such writ of attachment where the amended decree which forms the basis for an order, was filed in a prior dismissed case between the same parties by mistake, and, after the filing of the petition for attachment, an order for the correction of the record is made in the second case, and relator fails to renew her application for an attachment based upon the amended record.
    Mandamus by Rita M. Dwyer to compel Henry A. Mandell, circuit judge of Wayne county, to set aside an order- denying a writ of attachment.
    Submitted May 17, 1917.
    (Calendar No. 27,703.)
    Write denied July 26, 1917.

      McHugh & Lee, for plaintiff.

      Chamberlain, Denby, Webster & Kennedy, for defendant.
   Per Curiam.

On December 22, 1915, the relator filed a bill for divorce against her husband, Timothy Dwyer, Jr., in the Wayne circuit court in chancery, that cause being known as No. 52,762. The defendant, who was duly served with a subpoena, had his appearance entered by his counsel, and thereafter a reconciliation was effected and, upon filing a stipulation by counsel for the respective parties for a discontinuance of the cause, the cause was ordered discontinued. On May 26, 1916, the relator again filed a bill for divorce against her husband, that cause being numbered 54,584, in the Wayne circuit court in chancery. A chancery subpoena and injunction issued, and on the 1st day of June, 1916, a chancery summons, injunction, and copy of the bill of complaint, containing a prayer for temporary and permanent alimony, together'with the petition and notice of hearing on the temporary alimony, were personally served on the defendant. The hearing on the application for temporary alimony was duly had before one of the circuit court judges for Wayne county, and an order for temporary alimony and a solicitor’s fee was made. The defendant’s appearance was never formally entered in the second case, and an order pro confesso was filed, and the order entered in the regular manner. On September 19, 1916, the case was heard, and a decree entered granting the divorce and providing for the payment of alimony. It appearing that this decree did not agree with the findings of the judge who heard the case, an amended decree was prepared, which was also signed and filed, but inadvertently in the first case, No. 52,762, instead of case No. 54,584. This was the state of the proceedings on November 3, 1916, when the relator caused a petition for an attachment to be presented to the respondent, then the presiding judge in the chancery division of the Wayne circuit court, together with a proposed order for the attachment. The respondent refused to sign or make an order for the issuance of an attachment, but suggested that he would make an order requiring the defendant to appear before him and show cause why he should not be punished for contempt for a failure to obey the said decree. Relator’s counsel thereupon made a motion to set aside his order denying the writ of attachment. This motion was denied, and mandamus is now sought to review this ruling.

The relator bases her right to the relief sought upon Act No. 379 of the Public Acts of 1913 (3 Comp. Laws 1915, § 11443), which is entitled: >

“An act to facilitate the collection of temporary and permanent alimony ordered to be paid in suits for( divorce.”

The respondent in his return states the following:

“(7) Respondent respectfully shows unto the court that the proceedings in said Wayne circuit case No. 54,584 have been enrolled and contains a decree that is not the decree used as the basis for these proceedings.
“(8) Respondent shows that in the former proceedings between the parties to the divorce cause, being Wayne circuit court case No. 52,762, which was ended by an order of dismissal based on stipulation, an affidavit was filed on October 24,1916, more than 30 days after the decree had been entered in case No. 54,584, in which Charles P. O’Neil, - affiant, alleges that the wrong decree had erroneously been entered in said cause 52,762, and asking the court, Judge Collingwood presiding, to sign and enter an amended decree, a copy of said affidavit is hereto attached, marked ‘Exhibit A,’ and thereafter a decree was signed and entered in said cause 52,762. It is this decree that it is now sought to be used as a basis for the issuance of an attachment in cause No. 54,584.”

After counsel for the relator received a copy of the respondent’s answer and noticed the erroneous indorsement upon the amended decree, a motion for correction of the erroneous entry was made, and on January 18, 1917, an order correcting that entry was made by the circuit judge presiding in the chancery division of the Wayne circuit court.

The respondent, among other reasons, defends his refusal to sign the order for an attachment upon the ground that the amended decree of October 24, 1916, has not been entered in cause No. 54,584. The question of whether the relator was entitled to an order for an attachment upon the application of November 3, 1916, assuming that Act No. 379 of the Public Acts of 1913 is valid and should be construed as claimed by relator’s counsel, must be determined, it seems to us clearly, upon the record in cause No. 54,584 as it then stood and the showing made by the relator on her application for the attachment. It appears upon the face of the petition for the attachment that the application was not based upon the decree actually signed and filed in the cause in which the application was made, for the application demands various items not included in that decree and on the whole a much larger amount. In a carefully prepared brief for the respondent counsel contend that the said Act No. 379| of the Public Acts of 1913 is repealed by the judicature act, because the legislature in that act substantially re-enacted all the provisions of chapter 301 of the Compiled Laws of 1897, as amended by Act No. 230 of the Public Acts of 1899, relative to attachments for contempt for nonpayment of alimony in suits for divorce, and enlarged it also to include alimony awarded in suits for separate maintenance. See judicature act (Act No. 314, Pub. Acts 1915), chap. 5, § 1, subd. 5, and § 4 (3 Comp. Laws 1915, §§ 12268, 12271). It is claimed that Act No. 379 of the Public Acts of 1913, if valid, must have operated as a repeal pro tanto of chapter 301 of the Compiled Laws of 1897 as amended by Act No. 230 of the Public Acts of 1899. It is also urged that Act No. 379, so far as its provisions attempt to authorize the arbitrary arrest and detention of an alleged delinquent, without any previous notice, demand, or opportunity to be heard, upon a mere showing that payment has not been made, is unconstitutional. See Steller v. Steller, 25 Mich. 159.

However, in view of the elementary rule that the .writ of mandamus will not be awarded unless the relator shows a clear right to have done the thing sought to be compelled by the writ, we do not find it necessary to pass upon these questions. Clearly, upon the record here made, the relator, was not entitled to the order applied for’on November 3, 1916. See Orsland v. Wayne Circuit Judge, 138 Mich. 395 (101 N. W. 552). If relator desired to take any benefit of the order of January, 18, 1917, she should have renewed her application for an attachment upon the record as it stood after*the entry of that order. The writ must be denied, but„without.costs to either party.


text:
    COMSTOCK v. DEANE.
    Appeal And Ebeob — Motion to Dismiss — Denial of Motion — Review.
    On a bill for tbe partition of real estate and cross-bills by defendants for an accounting for any sums due to them from tbe rents and profits collected by a deceased co-tenant, of whom plaintiff and one of the defendants were the sole heirs, where an appeal was taken from an order denying motions to dismiss the cross-bills for the reason that the defendants’ claims, if any, should be settled in the probate court, held, that the question raised by the motions should not be decided on the record as presented, and that the case should be heard upon its merits so that a complete record might be presented of the facts Upon : which chancery jurisdiction was sought.
    Appeal from Lenawee; Hart, J.
    Submitted June 21, 1917.
    (Docket No. 103.)
    Decided July 26, 1917.
    Bill by Charles H. Comstock against Walter T. Deane, Libbie G. Gibson and others for the partition of certain real estate. Defendants filed cross-bills praying for an accounting. From an order denying motions to dismiss said cross-bills, plaintiff appeals.
    Affirmed.

      Baldwin, Alexander & Russell, for plaintiff.

      Earl C. Michener, for defendant Deane.

      Theodore M. Joslin, for defendant Gibson.
   Per Curiam.

The bill of complaint filed in this case prays for the partition of certain premises situated in the city of Adrian, Lenawee county, Mich., formerly owned by one Abigail Deane, deceased, of whom the plaintiff and all the defendants are the surviving heirs. Abigail Deane died intestate in 1857, leaving as her sole heirs at law Isaac A. Deane, Sarah S. Comstock, Dorcus Deane, Mary Ann Winter, and Abigail E. Jones, all of whom are now dead. Abigail E. Jones survived the others, and at her death on February 8, 1916, she was the owner of an undivided one-half of the premises, having acquired title thereto by inheritance and by purchase. She died intestate, without issue, leaving as her sole heirs at law the plaintiff, Charles H. Comstock, and defendant Addison J. Com-stock. Her estate is being probated in the probate court of Lenawee county.

Two cross-bills were filed by certain of the defendants stating that Abigail E. Jones had control of the premises in question from the death of her mother in 1857 until her death in February, 1916, and during all of said time received the rents and income therefrom to the exclusion of her cotenants and failed to account to them for their respective shares. The cross-bills prayed for an accounting and that any sums due the defendants from the rents and profits collected by the said Abigail E. Jones be deducted from the amount that would otherwise be due to the estate or heirs at law of Abigail E. Jones. The plaintiff filed separate motions to each cross-bill, asking that they be dismissed for the reason that the court had no jurisdiction to require an accounting in this case, it appearing on the face of the cross-bills that defendants’ claims, if any, were against the estate of Abigail E. Jones, and could only be allowed by the commissioners on claims appointed by the probate court in said estate. The two motions were by consent consolidated and argued as one motion. The court made an order denying them, and the plaintiff now appeals from this decision of the circuit court; leave to do so having been granted by this court.

After a careful consideration of the question raised by the motions to dismiss, we are of the opinion that it should not be decided upon the record as here presented. The case should be heard upon its merits so that a complete record may be presented of the facts upon which chancery jurisdiction is sought. Osborn v. City of Ann Arbor, 189 Mich. 96 (155 N. W. 1102). For this reason the order denying the motions to dismiss will be affirmed, but without costs to either party.


text:
    DALTON v. MERTZ.
    1. Dower — Land Contracts — Husband and Wife.
    A wife had no dower rights in property held under a land contract by the husband.
    2. Judgments — Conclusiveness—Res Judicata — Dismissal and Nonsuit.
    The decree in a suit to have an assignment of a half interest in a land contract by a husband to defendant declared to be a mortgage, or a trust for the husband’s, benefit, or void, absolutely dismissing the bill and not dismissing it “without prejudice” or with any words of qualification, must be conclusively presumed to be a dismissal upon the merits so as to operate as a bar to a subsequent suit by either the husband or wife.
    Appeal from Wayne; Des Voignes, J., presiding.
    Submitted June 8, 1917.
    (Docket No. 19.)
    Decided July 26, 1917.
    Bill by Robert M. Dalton and another against William M. Mertz and another for an accounting. From a decree sustaining a plea in bar, plaintiffs appeal.
    Affirmed.

      Robert M. Dalton (Harrison Geer, of counsel), in pro. per.

      Allan H. Frazer;for defendants.
   Kuhn, C. J.

This is an appeal from a decree sustaining a plea in bar filed by the defendants to the bill of complaint filed by the plaintiffs against the defendants.

The controversy arises out of a land deal in Grosse Pointe, Wayne county, in 1907. At that time Robert M. Dalton, one of the plaintiffs, and William M. Mertz, one of the defendants, bought certain Grosse Pointe acreage on a land contract from Charles W. Restrick. Differences arose between them with reference to this property which resulted in litigation which finally reached this court; the decision of the case being found in the case of Dalton v. Mertz, 173 Mich. 153 (138 N. W. 1055). By this decision the plaintiff’s bill of complaint was dismissed, and the defendant Mertz became the owner of the property, which he sold in July, 1914. On December 31, 1915, plaintiff Dalton filed a new bill of complaint, joining his wife, Helen, therein, against the defendant, William M. Mertz, and joined Mertz’s wife, Lois F. Mertz, as a defendant. In this new bill of complaint it is the claim of Dalton that he took the land contract in question for himself and the defendant William M. Mertz under a verbal agreement as joint and equal purchasers and owners, Dalton holding the undivided one-half interest in trust for Mertz, each to pay one-half the price; that Mertz had represented to Dalton that, if the contract were assigned to him to be held by Mertz for the joint benefit of both, he (Mertz) would make the payments due on the contract, and that Mertz did verbally agree that he would hold said contract for the joint and equal interests of Dalton and his wife and himself; that a written assignment of the contract to Mertz was actually made, and it is averred that the assignment was upon the verbal agreement of Mertz that he would hold the contract in his name for the equal interests of the plaintiff and Mertz, the same as Dalton had theretofore held said contract for Mertz and himself; and that upon the delivery of said assignment Mertz further verbally agreed that when said property was sold he would account to plaintiff for an undivided one-half of the proceeds, less the payments. The bill prayed that the court decree that the assignment was made for the purpose of Mertz holding the title to the land for the joint and equal benefit of plaintiffs and Mertz, and that the plaintiffs as husband and wife retain an undivided one-half interest therein, notwithstanding the form of the assignment.

The plea in bar filed by the defendants and sustained by the court claims that any rights that Dalton’s wife, Helen M. Dalton, had in the matter were privy to Dalton’s rights, and that any rights Lois F. Mertz had in the premises were privy to her husband’s, William M. Mertz, and that all the rights, claims, and causes of action in this case had been adjudicated and decided upon the merits in the first case in the Wayne circuit court and affirmed by this court' in the opinion above referred to.

Mrs. Dalton had no vested interest in the property, and any rights she may have came to her from her husband. It is clear that she has no dower rights in the. property held by land contract (Stephens v. Leonard, 122 Mich. 125 [80 N. W. 1002]) and her signature was therefore not necessary to the transfer of the land contract by assignment. In the first case Dalton brought his action to have the assignment of the land contract declared to be a mortgage, or a trust for his benefit, or void. In this case the husband and wife seek to establish a trust in the proceeds of the sale of the property based upon an alleged trust created by the said assignment. The defendant in the first suit contended that the assignment was absolute, and that he was the sole owner of the property by virtue of that instrument, which he élaims was what it purported to be upon its face. If it can be said that the first case was decided upon its merits, we are of the opinion that it must also be said that the wife is precluded by that judgment.

In our opinion the crux of this controvery is: Was the first case decided upon its merits? After a careful examination of the records and briefs of both cases, it clearly appears that the interests of the plaintiffs under any theory are contingent upon and necessarily based upon their interests in the land contract. The assignment thereof was absolute on its face, and the court found that the proofs were insufficient to sustain a claim that it was not absolute, and the necessary conclusion must be therefrom deduced that the defendant was the sole owner of the land. The first bill prayed for a one-half interest in the property, and the decree of the lower court, which was affirmed by this court, decreed:

“That complainant’s cause is without merit, and that complainant’s bill of complaint be, and the same is hereby dismissed.”

Moreover, the decree of this court dismissing the bill was absolute, not being dismissed “without prejudice” nor containing any other words of qualification. From this it must be conclusively presumed that the dismissal of the bill was upon the merits. 23 Cyc. p. 1144. The leading case in this jurisdiction is Edgar v. Buck, 65 Mich. 356 (32 N. W. 644), where this court, speaking through Mr. Justice Champlin, said:

“The question is whether the plea is sufficient to bar a further prosecution of this suit. We think it is. The decree rendered in the former suit appears to be a decree upon the merits at the hearing. It is a fundamental principle in the administration of justice that a question once litigated and determined between tie parties in a court of competent jurisdiction is to be considered as at rest. There is nothing to indicate the grounds of dismissal of the former suit. It appears, however, that it was done upon a hearing upon pleadings and proofs to be taken in open court, and that the dismissal of the bill was absolute, and upon consent of complainant, without any words of qualification usually inserted where the dismissal of the bill is not intended as a final disposition of the merits of the controversy.
“It is laid down in Mitford & Tyler’s Pleadings and Practice in Equity, at page 350, that a decree or order dismissing a former bill for the same matter may be pleaded in bar to the new bill, if the dismission was upon the hearing, and was not in terms directed to be without prejudice. And such is the current of authority generally. 1 Daniell, Ch. Pr. 683-685; Story, Eq. Pl. § 793.
“To operate as a bar to a subsequent suit, however, the dismission must have been upon the merits, or, if voluntarily, after proofs taken, and the cause in readiness for hearing. Perine v. Dunn, 4 Johns. Ch. [N. Y.] 142; Neafie v. Neafie, 7 Johns Ch. [N. Y.] 1 (11 Am. Dec. 380); Wilcox v. Balger, 6 Ohio, 406; French v. French, 8 Ohio, 214 (31 Am. Dec. 441); Jenkins v. Eldredge, 3 Story, C. C. 299 (Fed Cas. No. 7,267); Davis v. Hull, 57 N. C. 403; Borrowscale v. Tuttle, 5 Allen (Mass), 377.
“In Foote v. Gibbs, 1 Gray (Mass.), 412, where the plea of a former suit was interposed, the decree was in the following language:
“‘And now in this term, before the court, have come the parties by their said attorneys, and this action is dismissed on motion of defendants. Defendants ask costs, which are granted.’
“The former suit stood before the court upon bill, answer, and replication. The case does not show that any proofs had been taken. The court held that, where a decree like the above was entered, with no words of qualification such as ‘dismissed without prejudice,’ or ‘without prejudice to an action at law,’ or the like, it was conclusively presumed to be upon the merits, and was a final determination of the controversy. See, also, Bigelow v. Winsor, 1 Gray (Mass.), 301.”

See, also, Adams v. Cameron, 40 Mich. 506.

In the case at bar it can be said, in the language of Chief Justice Shaw in the case of Bigelow v. Winsor, 1 Gray (Mass.), 299, at page 304:

“It was a judgment upon the . case made in the bill, and denied by the answers, as. established or repelled by proof; it was therefore on the merits, and embraced the whole subject, and, in. the opinion of the court, must be held a good bar to this action.”

The order of the lower court sustaining the plea is affirmed, with costs to the defendants.

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