text:
    Henry Brassel v. John W. Stone, Circuit Judge of Delta County.
    Judgment — Enthy op for defendant BECAUSE OF INCONSISTENCY OF SPECIAL FINDING OF JURY AND THEIR GENERAL VERDICT.
    Relator applied for mandamus to compel the respondent to vacate the judgment entered in favor of the defendant, and enter a judgment for the relator upon the verdict rendered in his favor. An order to show cause was denied, appeal being the proper remedy.

      Hurst é Sullivan, for relator, contended:
    1. That the question presented by the motion of the defendant for the entry of judgment in its favor was whether or' not the special questions submitted to the jury and their answers thereto were inconsistent with the general verdict. .
    2. That if the plaintiff was in any car of the defendant, and was unlawfully put off the train, and thereby injured, he was entitled to damages; that the witnesses differed as to which car plaintiff was in; that that question of fact was 'therefore presented to the jury for determination; that they would not determine it from plaintiff’s evidence alone but from all of the evidence on that subject, and thus determine the answer to said question; that the declaration does not allege the particular car that plaintiff was in; that under it if he was in any car, and was forcibly ejected therefrom, as described in the declaration, the cause of action Was complete.
    3. That it does not follow as a matter of law that the plaintiff’s evidence on the first trial must exactly correspond with his evidence given on the second or third trial; that plaintiff’s evidence on the first trial was admitted, undoubtedly at the suggestion of the defendant; that the jury had before them said testimony, and also plaintiff’s testimony given on the third trial, and whether he was mistaken on the first trial, and telling the truth on. the third, or what the actual fact was, as to what car he happened to be in when forcibly ejected from the train, was all before the jury, together with the testimony of other witnesses upon the point, and it was purely a question of fact for their consideration.
    4. That the answer to the question what car he was in being a question of fact upon which the witnesses differed, was not .inconsistent with the general verdict; that the jury had a right to determine that question .from all of the evidence, and when they found that plaintiff was forcibly ejected from the car while in motion, and injured, without his fault, they determined all the questions in the case according to law, and their verdict ought not to have been disturbed by respondent, except upon motion for a new trial, for errors in law, or because the verdict was against the weight of evidence.
    5. That respondent in his opinion does not place his action on the ground that the special finding was inconsistent with the verdict, but that the plaintiff differed in his testimony on the third trial as to the car he was in from that given on the first trial, and this he claims authorized him to render a judgment in favor of the defendant.
    6. That mandamus is the proper proceeding to correct the error committed by respondent; that the point upon which respondent rested his decision is so clearly set forth in his opinion that no further examination of the record of. the case would throw any material light upon it; that it was not within respondent’s authority on a motion for a judgment on the ground that the special finding was inconsistent with the general verdict to say that the defendant ought to have a judgment, thereby invoking a branch of the law not applicable to the;pleadings and circumstances of the case; that it would be a ggéat hardship to Compel the plaintiff, who is dependent upon his labor for support, in order to correct this single error to go to the expense of printing a voluminous record'oí evidence (150 pages as shown by an affidavit filed in support of this application), and bring the case up for review on writ of error.
   Tire facts as alleged in the petition for mandamus were:

1. That relator recovered a judgment against a railroad company under a declaration averring his unlawful and forcible ejection from its ears in which he had taken passage as a passenger, the particular car not being mentioned,which judgment was reversed in the Supreme Court, the case being reported in 101 Mich. 5.

2. That on.a second trial judgment passed in favor of relator, but a new trial was granted by the trial court on the grounds that the verdict was excessive, and that the answers of the jury to the special questions submitted to them were inconsistent with their general verdict.

3. That a change of venue was granted; that the case was again tried, and the jury rendered a verdict in favor of the' relator, which verdict was set aside by the respondent on the ground, as stated in the journal entry, that the affirmative answer of the jury to the question, “was the plaintiff in the second class or smoking car when the conductor called for his ticket,” was inconsistent with the general verdict.

4. That the reasons of-the respondent for giving said decision, as set forth in his opinion filed in the case, were:

a — That it appeared on the last trial by undisputed evidence that the train was made up in the following order: Engine and tender, mail car, baggage ear, one second class ear, sometimes called the smoker, two first class cars, dining car, and sleeping car; that the train was going east; that the plaintiff’s testimony, taken upon the first and second trials, was put in evidence; that but one conclusion can be reached from his testimony taken on the first trial taken as a whole, and that is that he was not in the common smoking or second class car ahead when the conductor called for his ticket, but that he was in the rear or smoking apartment of a first class car; that this was the claim of thd plaintiff oñííié first trial.

b — That in the light of the testimony óf the conductor, the brakeman, and other witnesses, the ear or place-on the train where the alleged trouble occurred became not only material, but very important; that on the first trial plaintiff placed himself in one of the (two) first class coaches; that the first special question put to the jury was, “Was the plaintiff in the smoking room next in front of tpe dining car when the conductor called for his fare,” to which question the jury gave a negative answer; that with this answer in mind, plaintiffs counsel in the Supreme Court claimed that “the court would bear in mind that on the train there were two first class coaches, exactly alike; that the plaintiff claimed that he was in the rear end of the coach, not next to the dining car, while the defendant’s witnesses claimed that he was in the rear end of the coach next to the dining car;” that on the last trial plaintiff testified that the trouble occurred in the third car from.the engine, the smoking or second class ear, and that two of his witnesses were in that ear; that said witnesses gave evidence to the same effect; that in the argument of the case before .the jury plaintiff’s counsel took the same position, and urged the jury to find that plaintiff was in the third car from the engine, being the smoking or second class car, and the jury so found in answer to a special question submitted to them.

c — That it is now contended by the defendant that this special finding is inconsistent with the general verdict, and the court is asked, for this reason, to enter judgment in its favor; that it is a familiar rule of law that a plaintiff cannot be permitted on a second trial to take a position inconsistent with that taken on a former trial on any vital or important question in the case; citing. Railway Co. v. McCarthy, 96 U. S. 267.

d — That bearing in mind the “make up” of the train, there is no doubt but that upon the last trial the plaintiff shifted his position taken upon the first trial as to the car in which he claims the trouble occurred; that when the importance of the ear is considered in connection with the testimony and claim of defendant as to the persons present on the train, the question becomes as vital as though the particular ear had been alleged in the declaration; that plaintiff treated the car as important on the first trial, both in the circuit and Supreme courts, and cannot be permitted to change front on said question.

e — That the object and purpose of How. Stat. § 7606, which'provides for the submission of special questions to the jury has been clearly defined by the Supreme Court; citing McLean v. Scripps, 52 Mich. 250; Wrecking Co. v. McMorran, 73 Id. 472; Van Auken v. Railway Co., 96 Id. 314. (For cases bearing upon the proper construction of and practice under the section cited, as amended by Act No. 15, Laws of 1885, see Cousins v. Railway Co., 96 Mich. 386, and note; Brand v. Railway Co., 101 Id. 6. [Editob.)

/ — That if I am correct in holding that the plaintiff is estopped from denying his position taken on the first trial as to his place on the train when the act complained of took place, then his place in that identical car was a necessary ele-» ment in the finding on the trial in order that it should support the general verdict; that that finding is that he was in the second class or smoking car, and it is inconsistent with the general verdict, and with his right to recover a judgment.

<7 — That the contention of plaintiff’s counsel that if the defendant’s position is correct the court should have taken the case from the jury at the close of the testimony and directed a verdict for the defendant is probably correct, and had the court been as well informed then as now such course would have been taken; that plaintiff cannot complain of this as his position is no worse than .it would have been then.

h — That for the reasons given judgment will be entered for the defendant.


source: Caselaw Access Project

license: Public Domain

text:
    J. Willard Babbitt v. Edward D. Kinne, Circuit Judge of Washtenaw County.
    Transfer of cause.
    Relator applied for mandamus to compel the respondent to transfer a probate appeal from Wayne county to Washtenaw county for trial, on the ground that the wife of one of the circuit judges of Wayne county was interested in the subject matter of the suit. An order to show cause was denied.

      J. Willard Babbitt, for relator, contended:
    1. That the intent of the Legislature in enacting How. Stat. § 6495, which provides for the transfer of civil suits or proceedings in law or in equity where the circuit judge is disqualified, was to assure to the moving party a fair and impartial trial. (For cases bearing upon the construction of and proper practice under said statute, see JDavidson v. Grand Trunk Blevator Go., 97 Mich. 456, and note. EDITOR.) That the law (section 18, chap. 96, Rev. Stat. 1848), existing at the time of the passage of the earlier statute (How. Stat. see. 6468) prevented a circuit judge who was interested from sitting as such in the case, and the earlier statute also provided that' upon good cause shown he might transfer the case to another circuit. What 1 more then was needed to insure to the opposite party a fair and impartial trial? Certainly the disqualified j udge could not sit in the case, and the trial must be had. Then why pass the latter statute. There must have been some seeming difficulty to overcome not taken care of by the earlier statute. To this there is but one answer, namely, “the disqualified judge would not sit in the case, but would call in another judge to hear it; that then, without the interposition of the statute, he might say if application was made for a change of venue that having called in another and impartial judge there was no need of a change.” That the Legislature in passing the latter act evidently saw the other dangers which threatened a fair and impartial trial in the court of the disqualified judge with his jury and Ms officers, even though the outside judge were to sit to hear the case; that there is no other reason for the passage of the latter act.
    2. That it might as well be said that a fair trial could be had before an outside judge in a circuit having but one judge as in one having several judges; that the conditions are the same; that the latter act (§ 6495) is aimed not at the judge who is disqualified, but .at his court, otherwise the provision would have been in the alternative, either that the cause be transferred or that an outsider be called in to hear the case; that the disqualified judge could not under any circumstances try; the case; that the existing law provided for that; so that there was not, at the time of the passage of the latter act, any possible fear of his sitting in the case, but he had the right to call another judge into Ms court; that the only fear of obtaining a fair trial was that it could not be had in his court, and so this safeguard was thrown around the party who happened to be so unfortunate as to be on the opposite side of the case.
    3. That it is not the policy of the law or of the courts to favor the repeal of a law by implication; that when, as in this case, the evil aiméd at by the latter act is in no wise changed by the Wayne circuit judges act (Laws of 1893), no other mode of transfer being there provided, there is no reason for supposing that a repeal was intended.
   The facts as alleged in the petition for mandamus were:

a — That an appeal was, taken to the Wayne circuit court from an order of the judge of probate of Wayne county allowing probate of a will; that one of the chief beneficiaries named in the will and the proponent thereof was the wife of one of the circuit judges of Wayne county. '

6 — That an application was made by the contestants to the respondent for an order for the transfer of said appeal to the circuit court of Washtenaw county for trial; that on the hearing said application was denied, the respondent holding, among other things, that the circuit judges of Wayne county were honorable men. and that the granting of said application might be deemed a discourtesy.


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    Griffin Marcy v. Frank D. M. Davis, Circuit Judge of Ionia County.
    Certiorari — Issuance oe whit before PRESENTATION OP BOND TO CLERK.
    Delator applied for mandamus to compel respondent to vaeate an order denying liis petition as plaintiff in certiorari to file an amended bond, and granting tiro motion of tlio defendant in certiorari to dismiss the writ on the ground that it was issued before tho required bond had been presented to the clerk. An order to show cause was denied. *

      McGarry els Nichols and M. A. Nichols, for relator, contended:
    1. That respondent based his decision upon How. Stat. § 8311, which provides “that after tho rendition of judgment against the defendant in any suit under the provisions of this chapter (chapter 286, relating to Forcible Entry and Detainer) no certiorari shall be allowed unless the defendant shall make and execute to the complainant a bond, the penalty to be fixed by the officer allowing the certiorari, not less than twice the amount of the annual rent of the premises in dispute, with good and sufficient sureties, who shall justify, and also be approved by said officer,” etc., holding that under this section it was absolutely necessary to present the bond to the clerk before the writ could issue, and that in default of such presentation the circuit court obtained no jurisdiction of the writ; that counsel for the plaintiff in certiorari contended that said section should be construed in the light of the whole of chapter 286,. as well as of How. Stat. chap. 249, where tho practice on certiorari from justice’s court is prescribed.
    2. That How. Stat. § 8307 (being section 25 of chapter 286), provides for an appeal by the aggrieved party to the circuit court “within the same time, in the same manner, and that return may be compelled, and the same proceedings shall be thereon had as near as may be, and with the like effect as in cases of appeals from judgments rendered before justices of the peace,” etc.; that How. Stat. § 8310, which authorizes tho review of a judgment rendered under chapter 286 by certiorari, and How. Stat. § 8311, which provides for the bond to be given by the plaintiff in certiorari, fail to provide for the proper practice in such certiorari eases; hence the practice should be the same as on certiorari from justice’s court under the general statute.
    3. That How. Stat. § 7033, provides that the affidavit required to be made in order to the issuance of a writ of certiorari to review a justice’s judgment shall, within 30 days after the rendition of such judgment, be presented to one of the circuit judges, or to a circuit court commissioner of any county of this State, and if he be satisfied that an error has been committed by the justice or jury in the proceedings, verdict, or judgment he shall allow the certiorari by indorsing his allowance thereon;” that How. Stat. § 7034, provides “that the party obtaining such certiorari shall execute to the opposite party a bond, with one or more sufficient sureties, to be approved by the judge or commissioner who allowed the certiorari or by the justice who rendered the judgment” in a penalty and conditioned as fixed in said section, while lloví. Stat. § 7038, provides that “such writ of certiorari shall, within 10 days after it shall have been issued, or within such other time as the officer allowing the same shall direct at the time of allowing said certiorari, be served upon the justice by whom the judgment was rendered, together with the bond given, and a copy of the affidavit on which the writ was allowed, and the sum of $2 shall be paid to the justice for his fees for making a return to the certiorari, and no certiorari shall be of any effect until all the preceding requisitions shall have been complied with;” that these sections do not contemplate that the bond shall be presented to tho officer allowing the writ before the same is allowed; that the very language of the statute negatives such an idea, for it says that the bond shall be presented for approval to the party Who allowed the certiorari-, that under these sections the writ of certiorari is first to be allowed, and then the bond presented for approval, after which, and within ten days, it is to be filed with the justice who rendered the judgment; citing Sherwood v. Circuit Judge, 80 Mich. 270; that if the giving of the bond is jurisdictional at . all, the jurisdiction is not affected until the time in which it is to- be filed with the justice has been allowed to expire, namely, ten days from the issuance of the writ.
    4. That respondent, in indorsing his allowance of the writ, stated that it should issue on the relator’s filing a bond in a penalty of $250; that it would appear from.this that the respondent contemplated that the clerk should approve the bond; that under the Sherwood case this could not be done, it being expressly held in that case that the officer allowing the writ shall approve the bond.

      6. That the words, “no certiorari shall be allowed,” found in section 8311, contemplate simply that the justice of the peace cannot be compelled to make his return until the proper bond is filed with him, and not then unless it is filed within the ten days prescribed by the statute; that said section does not say that the bond shall be presented before the writ shall issue, but that no certiorari shall be allowed unless such bond is given.
    6. That the bond given by relator was defective; that relator offered to file and serve a new and sufficient bond, which he had a right to do under the statute; that the court erred in not permitting him to do so and in granting the motion to dismiss the writ.
    7. That the practice on certiorari is analogous to that on appeal and writ of error; citing 4 Ene. PI. & Pr. 132; that if ' the rales governing appeals and writs of error are to control in this ease, the court did not lose jurisdiction; citing Diwand v. Circuit Judge, 76 Mich. 624; Snyder v. Circuit Judge, 80 Id. 511.
   The facts as alleged in the petition for mandamus were:

a — That relator, desiring to review by certiorari a judgment rendered against him by a justice of the. peace in summary proceedings to recover the possession of land, presented to respondent on January 7,1896, the required affidavit, upon which respondent made and signed the following indorsement: “Let the writ of certiorari issue as within prayed by complainant’s giving a bond in the sum of $250;” that on the same day, on the presentation of said affidavit to the clerk of respondent’s court, a writ of certiorari in the usual form was issued to said justice of the peace, which writ was on the same day served upon said justice.

b — That on January 13, 1896, relator executed and filed with said justice of the peace a bond conforming, as relator supposed, to the statute, and on January 31, 1896, the justice made his return to said writ.

c — That on March!, 1896, the defendants in certiorari moved to dismiss said writ on the grounds, among others, that said bond was not executed according to law; that said writ was issued before the execution of said bond, and that said bond was not niade and executed and delivered to the justice until six days after the allowance of said writ; that said motion came on for hearing; that relator filed a petition praying for permission to file an amended bond conforming in all respects to the requirements of the statute; that such permission was refused by respondent, who made an order dismissing said writ of certiorari.

d — That the only question argued or raised by the counsel for the defendants in certiorari on the hearing of said motion was that the court did not obtain jurisdiction of said cause, by reason of the bond filed, as aforesaid, not having been presented to the clerk of the court before the issuance of said writ; that respondent, in granting said motion, announced as his reason therefor that the court had no jurisdiction, as, in his opinion, the statute contemplated that said bond should be presented to the clerk before the issuance of said writ.


text:
    James D. Turnbull v. William L. Carpenter, Circuit Judge of Wayne County.
    Djsoree — Oral announcement of decision of court — Alteration of on settling and signing decree.
    Relator applied for mandamus to compel respondent to settle and sign a chancery decree in accordance with the decision as orally announced by the court, and taken down by the court stenographer. An order to show cause was denied.

      Joseph Cavanaugh, for relator, contended:
    1. That the decision of the court as announced was the decree, the sentence of the court, upon the matters before it for decision; that when thus spoken and recorded by the official stenographer it became a record of the court as much as if it had been written and signed by the presiding judge himself, and filed in the cause; that this decision was binding upon all the parties, and equally so upon the judge of the court.
    2. That respondent had no more power to change or alter said decision in any material matter than any other official of the court; that the only way it Could be materially changed or altered would be by a rehearing; that this is the mode pointed out by the law itself, and the only mode or way; that until a rehearing was granted in the usual way any material alteration or change in said decision by respondent or any other court official would be absolutely void, as it would be without jurisdiction; that until a rehearing was at least asked for or granted relator was entitled to have the formal decree settled and signed as a matter of legal right in accordance with said oral decision.
    [A statement of the main facts essential to a correct understanding of the merits of the chancery suit in which the decree complained of by relator was made, will be found in the opinion in 94 Mich. 87. Editor.]
   The facts as alleged in the petition for mandamus were:

a — That relator was joined as a defendant in a bill praying for a decree declaring, among other things, that he was not entitled to any portion of tire moneys already received and which might be recovered upon a judgment, 48 per cent, of which relator claimed to own; that the case was tried in respondent’s court, and after the submission of the same respondent announced “that the decision of the Supreme Court in the case of Turnbull v. Monaghan, 94 Mich. 87, was decisive of the controversy between the parties; that applying the principles of that decision to the case under consideration relator was entitled to 48 per cent, of the net proceeds of said judgment; that said net proceeds amounted to $4,094.24; that relator was entitled to a decree for 48 per cent, of this ■amount, or $2,258.27, with interest thereon at the rate of 7 per cent, from January 1,1895.”

b — 'That relator caused a formal decree in accordance with said oral decision to be drawn up and presented to respondent for his signature; that Mr. Lightner, of Keena & Lightner, solicitors for complainant, objected to the proposed decree in respect to the allowance of said interest; that thereupon respondent struck out of said decree the clause allowing said interest, signed said decree with said interest clause eliminated therefrom, refused to sign a decree in which said clause was included, and refused to grant a special motion to correct the decree so signed by including therein aid provision regarding interest.


text:
    Charles W. Coit et al. v. Edwin A. Burlingame, Judge of the Superior Court of Grand Rapids.
    Findings oe fact — Filing of request FOR AFTER ANNOUNCEMENT OF JUDGMENT — ENTRY OF JUDGMENT AS OF DATE OF ITS ANNOUNCEMENT AFTER TIÍE FILING OF SUCH REQUEST.
    Relator applied for mandamus to compel the respondent to set aside an order vacating a judgment entered as of the date of its announcement, but in fact entered at a later date, a reguest for findings of fact and law having been filed in the interim. An order to show cause was denied.

      C. IT. Gleason, for relator, contended:
    1. That the only object in vacating the judgment was to give the defendant the right to file a request for special findings which ho should have filed before the decision of the case; that the court had no power to vacate the judgment for any such purpose.
    2. That- counsel for defendant based his motion to vacate the judgment on the claimed right to file a request for special findings at any time before the actual' entry of judgment; that How. Stat. § § 6486, 6487, provide “that upon the trial of a question of fact by the court without a jury, the decision of the court shall be given on or before the first day of the term succeeding that in which the cause was submitted,” and that “in giving the decision the court shall specify the facts found and the conclusions of law thereon upon the request of either party;” that such request should have been filed before the case was decided; that the case was decided when the court announced its decision in open court, and not when the judgment was actually entered; citing Brown v. Haalc, 48 Mich. 229; Circuit Court Rule No. 87.
    3. That it cannot be said that the parties did not anticipate that the court would decide the case when it did,' because the court had the right to render its decision at any time after the proofs were taken and the ease submitted for decision, of which fact it was the duty of the parties to take notice.
    (Copies.of affidavits filed in support of and in opposition to the motion to vacate said judgment were attached to the petition for mandamus, those on the part of the defendant tending to show that its attorneys were taken by surprise by the entry of the judgment without the filing of findings of fact and law. Edxtob.)
   The facts as alleged in the petition for mandamus were:

a — That the case in which the proceedings complained of were had was tried before the court without a jury; that the testimony was closed January 30, 1896; that on February 14,189(5, counsel for the respective parties appeared before the court, and made their arguments, which were supplemented by the filing of brief .s

b — That on February 29, 1896, relators’ counsel was notified by telephone that, respondent was ready to decide the case; that both parties, by their counsel, appeared, and said decision was announced in open court, namely, that relators have judgment for a stated sum, with interest thereon computed from a given date; that the clerk of the court then and there made an entry of said decision in a book kept by him in said court for the purpose of making such entries, after which the sheriffs officer, by order of respondent, adjourned said court.

o — That at no time during said session of court was anything said to indicate that the judgement so announced was provisional or conditional, neither did the representative of the defendant then present make any request for time in which to file a request for findings of fact or law, nor was any request made for such findings.

cü — That on March 3, 1896, counsel for defendant filed a request for findings of fact and law.

e — That on March 11, 1896, general findings, to the effect that the defendant did undertake and promise in manner and form as the plaintiffs had in their declaration complained against it, and that the damages of the plaintiffs wore assessed at a stated sum, were entered in the journal of the court, which entry was followed by the usual judgment entry in an action of assumpsit, both of which entries were duly entitled in the case.

/ — That on March 26,1896, on motion of the counsel for the defendant an order was made vacating the judgment so en* tered as aforesaid, and directing that a provisional judgment be entered under date of March 11, 1896, said judgment not to be final until findings of fact and law were filed.

g — That on April 21, 1896, a motion, made by relators to vacate said last mentioned order, was denied.


text:
    John Stanley v. William A. Anderson et al.
    Judgment — Against surety in bond GIVEN AS A CONDITION TO A STAY OF PROCEEDINGS PENDING SETTLEMENT OF BILL OF EXCEPTIONS.
    Motion by appellee for the entry of judgment in the Supreme Court against surety after the affirmance of the judgment appealed from. Granted.

      E. L. Gray and Jay P. Lee, for motion.

      W. D. Fuller, contra.

   The facts as .shown by the record in the case and a certified copy of said bond filed in support of the motion were:

a — That on October 4,1894, the defendant Anderson, against whom, as also his sureties on appeal from justice’s court, a judgment had been entered, filed with the clerk of the circuit court for the county of Newaygo a bond under 3 How. Stat. § 7621c — 7621/, with James H. Darling as surety, as a condition to a stay of proceedings on said judgment pending a motion for a new trial, or the settlement of a bill of exceptions in the case; that said bond was conditioned as required by How. Stat. § 8679, in case of the filing of a supersedeas bond on taking out a writ of error.

b — That on August 7, 1895, a writ of error was sued out by said Anderson, and such proceedings were thereafter had as resulted in the affirmance on December 10,1895, of said judgment.

c — That the bond so given as aforesaid or a copy thereof was not certified to the Supreme Court as a part of the record in the case.

d — That at the January, 1896, term of Court, this motion was made; that the same was based upon the files and records in the ease and a certified copy of said bond filed in support of said motion.


text:
    In the Matter of the Estate of James W. Sanborn, Deceased.
    Estates of deceased persons — Allow» ANCEOF EXECUTOR’S ACCOUNT.
    Motion by appellees to strike case from docket for failure of appellant to serve copy of record and brief within the time fixed by Supreme Court Rule No. 59. Denied.

      Henry M. Puffield, for motion.

      H. W. Stevens, contra.

   The facts as shown by the record and papers in the ease and by the affidavit of the attorney for the appellant filed in support of said motion were:

a — That the writ of error was issued December 6, 1895, returnable December 26,1895, and was returned December 28, 1895.

6 — That the case was tried November 13 and 14, 1895; that on December 6, 1895, the bill of exceptions was settled and signed by the circuit judge.

c — That upon preparing the copy of the record for the printer it was discovered that the order as entered contained a paragraph dismissing the appeal, which was in contradiction of the ruling and decision of the circuit judge before whom the case was tried; that appellant’s attorney gave notice to the attorneys for the appellees of a motion to amend said order by striking out said paragraph; that December 5, 1895, was the earliest day that the motion could be heard, on which day the motion was granted; that on December 18, 1895, a copy of the assignments of error had been served on the attorneys for the appellees.

if — That the deposition of one of the witnesses sworn on the trial consisted of a tabulated statement of account embracing 165 pages of composition work, which could not be done as rapidly as the ordinary pages of a record; that on December 23, 1895, a copy of the record was delivered to* the printer, with instructions to complete the printed record with all practicable speed; that the attorney for the appellant was not able to get said record from the printer until January 3,' 1896; that he at once served a copy of said record and of appellant’s brief upon the attorneys for the appellees, and filed with the clerk the required number of copies of the printed record and brief.


text:
    Robert A. Ward v. James B. Eldredge, Circuit Judge of Macomb County.
    Divorce — Appointment of guardian AD-LITEM FOR INFANT DEFENDANT.
    Relator applied for mandamus to compel tho respondent to vacate an order for temporary alimony made upon the petition of an infant defendant. An order to show causo was denied.

      Henry P, Jenney, for relator, contended:
    1.That the order directing the payment of' alimony and expense money is void because not entered with jurisdiction; citing How. Stat. §8130, which provides that after the issuance and service of process against any infant defendant the suit shall not bo any further prosecuted until a guardian for sueh infant shall have been appointed.
    / 2. That the relator having objoeted to the regularity of the proceedings on the ground of a non-compliance with said statute, the respondent refused to hear the petition, after which in a proceeding on the law side of the court, as shown by the order, an attorney and solicitor of the court was appointed sueh guardian; that there is grave reason for holding that the appointment of an attorney as guardian ad litem is void; citing 10 Amer. & Eng. Enc. Law, 688; that waiving this objection, the order of appointment does not show that it was made by the circuit court for Macomb county, in chancery, is not properly entitled in the cause, and is notice to no one of the appointment.
    [The order purports in its entitlement to have been made in a suit pending in the circuit court for the county of Ma-comb, following, in this respect, the petition for the appointment of a guardian. Editor.]
    3. That in the casé of Cooper v. Maylieto, 40 Mich. 528, the petition for alimony was filed by the guardian, and the Court seems to have approved the practice; and in Wood v. Wood, 2 Paige, 108, it was held that if the wife is an infant she must prossecute or defend by her guardian ad litem. See, also, 10 Amer. & Eng. Enc. Law, 686-693, and notes.
    4. That there was nothing before the court upon which to base an order for alimony and expense money; that while the court has great discretion in making such allowances, still there must be some thing upon which to base said discretion; that no copy of the answer and cross-bill, as refiled by the guardian, had been served upon relator or Tiis solicitor;] hence there was no denial of the charges made against the defendant in the bill, and without this there was nothing which the court could consider upon the hearing except the bill, as no affidavit accompanied the petition, which did not deny the truth of the matters as alleged in the bill; that without service of the answer or cross-bill, as provided by Chancery Rule No. 61, the court could not consider the allegations of those pleadings upon the hearing.
   The facts as alleged in the petition for mandamus were:

1. That relator filed a bill to obtain a divorce, his wife being at the time an infant of the age of 19 years; that a subpoena to appear and answer was served on the defendant; that defendant caused her appearance to be entered by Canfield & Spier, her solicitors, and filed an answer and cross-bill, entitled, “The several answer and cross-bill of Alice M. Ward, the defendant in the above entitled cause;” that said pleadings were signed and verified by the defendant in her own behalf, as was a petition for the allowance of temporary alimony and expense money by her filed on the same day; that relator objected to the hearing of said petition on the ground that defendant was a minor, and no guardian ad litem had been appointed for her in said suit, which objection was sustained, and an order made denying the relief prayed for.

2. That four days later the defendant filed a petition, duly verified, in which she asked for the appointment of one of her solicitors as guardian ad> litem to appear [ and defend said suit,' which request was granted, and an order made accordingly.

3. That on the same day said guardian ad litem took from the files in said case said answer and cross-bill, and after the title of the cause, “Robert A. Ward Complainant, v. Alice M. Ward, defend ant,” and the paragraph, “The several answer and cross-hill of Alice M. Ward, the defendant in the above-entitled cause, to the bill of complaint filed therein by said complainant,” inserted in writing “And the answer of Alice M. Ward, an infant under the age of 19 years, together with her cross-bill, by Silas B. Spier, her guardian, to the bill of complaint filed herein by the complainant,” and at the conclusion of the said answer, below the signature of Alice M. Ward, the said Spier signed the said original answer and cross-bill as follows, “Alice M. Ward, an infant, by Silas B. Spier, her guardian,” and filed the same in the office of the register in chancery for the county of Macomb.

4. That on the same day defendant’s solicitors served upon relator’s solicitor a notice to the effect that an order had been entered appointing said Spier guardian of the defendant; that the answer and cross-bill theretofore filed had been refiled by said guardian, and that the petition (for alimony) theretofore filed in said cause would be brought on for hearing on a day named in said notice.

5. That on the day fixed in said notice, said petition was called up for-hearing by Canfield & Spier,' who claimed to act for said defendant; that relator objected to said hearing because:

a — The petition was not filed by the guardian ad litem.

b — The petition the court was asked to hear was filed by the defendant in her own behalf prior to the appointment of the guardian ad litem.

e — No copy of the petition was served, with the notice of hearing of the same. (It was conceded that a copy of the petition was served on relator’s solicitor at the time the first notice of hearing was given, but that no copy of the answer and cross-bill, as indorsed and refiiod for defendant by said Spier, had been so served.) That despite said objections the prayer of the petition was granted, and an order made that relator pay to said guardian ad litem or to defendant’s solicitors, the sums of money allowed for solicitor’s and witness’ fees, and to said guardian ad litem the sum allowed for the maintenance of said defendant during the pendency of said suit.


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    Herman Langkawel v. Savias E. Brown.
    Writ of error — Extension of time for ISSUANCE OF.
    The defendant moved for an order extending the time for suing out a writ of error, and directing that the writ of error already issued should stand as the writ in the case. Denied.
    P. W. NisTcem, for motion.

      Nelson DeLong, contra, contended:
    1. That 3 How. Stat. § 8686,. provides that the time in which writs of error may be taken out may 'be extended not exceeding six months by the Supreme Court or one of the Supremo Court Justices at Chambers, when the proposed appellant has been prevented by circumstances not under his control from taking out the writ.
    2. That no particular favor should be shown the defendant, as the judgment sought tobe reviewed amounts to but $22; that it appears that the plaintiff recovered verdicts before the justice and in the circuit court for the same amounts; that the time in which to settle a bill of exceptions was extended from time to time until August 5,1895, when the biU was settled, said several extensions amounting in the aggregate to seven and one half months; that it would seem that if defendant’s counsel, in view of these extensions, did not know when the judgment was entered, it was due solely to gross carelessness on his part; that the causes which the defendant alleges in support of his motion are not “circumstances not under his control;” that they are at the best a mere mistake on the part of his attorney, and a very earelesé one,- -simply a want of memory of matters which were within the knowledge of said attorney when he applied for the several extensions of time, and when he prepared the bill of exceptions, which bill must have been under his eye many times.
   The facts as alleged by the respective parties were:

1. In his affidavit filed in support of said motion the defendant averred that on December 21, 1894, a judgment was rendered against him and in favor of the plaintiff: in the circuit court for the county of Muskegon; that a bill of exceptions was settled and signed by the circuit judge, after which and as early as in November, 1895, he paid to his attorney Stephen H. Clink the sum of $6 for clerk’s fees for the purpose of having a writ of error issued to remove said judgment to the Supreme Court for review; that he relied upon his said attorney to procure said writ, and supposed and believed that he had done so within the statutory time until informed that said writ was not issued until December 28, 1895, being, as he is informed, too late a day for its issuance.

2. In his affidavit filed in. support of said motion, Stephen II. Clink averred that up to that date he had been the sole attorney for said defendant in said case; that the defendant as early as in November, 1895, paid him $6 clerk’s fees required to be paid on taking out a writ of error; that he in good faith intended to sue out said writ within the statutory year; that he had entered upon his case book the date of the entry of the judgment, which entry was December 31,1894, which he believed to be the true date; that within one year from said date he caused a writ of error to be issued, but afterwards learned that as a matter of fact the judgement was entered on December 21,1894, instead of at said later date

3. In his affidavit filed in opposition to said motion the attorney for the plaintiff: averred.

« — That on November 8, 1894, plaintiff recovered a judgment for $22 against the defendant in justice’s court for work and labor; that on the same day the defendant took an appeal to the circuit court; that on December 21, 1894, a like judgment was entered for the plaintiff in said circuit court.

6 — That the time in which to settle a bill of exceptions was extended from time to time, until Auguste, 1895; that on August 5, 1895, said bill of exceptions was settled and signed.

e — That the circuit court of Muskegon county was not in session on December 31, 1894, it having been adjourned on Decomber 21, 1894, to January 5, 1895; that the bill of exceptions, which was prepared by defendant’s said attorney, in its commencement recites “At a session of said court held at the court house in the city of Muskegon on the 22d day of December, 1894, etc.,” showing that if said attorney supposed, as stated in his affidavit, that said judgment was rendered on December 31, 1894, it was because ho had forgotten the true date of the entry of said judgment.

d — That on December 30, 1895, said Clink served on deponent a notice of the issuance of a writ of error dated Decern bor 28, 1895; that this was the first notice that the deponent had received of such fact; that as soon as he observed the date of said writ he informed said Clink that the statutory year had expired, and that it was too late to take out said writ; that said Clink did not then claim that lie supposed that the judgment was entered Dee. 31,1894, but said he would apply for an extension of time for the issuance of said writ, remarking that “a man cannot always be expected to have $6 to pay for a writ of error;” that deponent had been informed by the clerk of said circuit court that no fees had been paid to him for making a return to said writ, for which reason such return had not been made.

e — That the notice of the hearing of this motion is signed by P. W. Niskern, attorney for defendant and appellant, but that no notice that said Niskern is such attorney has ever been served upon this deponent unless said notice of hearing constitutes such notice.


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    Helen A. Beadle, Administratrix, etc., v. The Island Cedar Company (A Corporation.)
    Writ of Error — Dismissal of for want of prosecution.

    Motion to dismiss writ of error and affirm the judgment below for failure of appellant to file with the clerk, in compliance with Supreme Court Rule No. 32 either before the first day of the October term, 1895, or of the January term, 1896, copies of the printed record in. the case, and for failure to serve a copy of said record and of appellant's brief as provided by Supreme Court Rule No. 59. Granted.

      George A, Cady and Horace M. Oren, for motion.

   The facts as shown by the record in the case and the affidavit of George A. Cady, one of plaintiff’s attorneys, filed in support of said motion, were:

a — That the writ of error was issued June 5, 1895, returnable July 15, 1895, an,d returned and filed July 19,1895.

b — That the case was noticed by the appellee for the October, 1895, term of Court, but was stricken from the docket,' copies of the printed record not having been filed; that on December 9, 1895, the appellee noticed the case for hearing for the January, 1896, term of court, and included in the notice a statement that in ease the printed record was not filed and served on or before the first day of said term, a motion to dismiss the writ of error and affirm the judgment sought to be reviewed would be made.

c — That no copy of the assignments of error has ever been served upon the appellee or her attorneys; that on January 7, 1896, the ease was stricken from the docket of the January, 1896, term of court; that no copies of the printed record have been filed, nor Jias the appellee or her attorneys received up to the time of making said affidavit (January 11, 1896) any copy of said record or of the brief for the appellant.


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    The A. P. Cook Company (Limited) v. Francis H. Beard et al.
    [See 65 N. W. Rep.518.]
    Costs — In suit to enjoin flowage of land — Liability of mortgagee defendant eor.
    Motion by defendant Kirby, who was made a party by reason of his mortgage interest in the land, the flooding of which was sought to be enjoined, for a modification of the decree in favor of the complainant so as to relieve said defendant from the payment of costs. Denied January 29,1896.

      Osborn, Mills á Master, for motion, contended:
    1. That a decree was entered on appeal modifying that passed by the court below, and awarding costs as against the defendants generally; that said decree was so entered without notice to defendants’ solicitors, who were afforded no opportunity to be heard upon the question of costs.
    2. That an examination of the record will disclose that the defendant Kirby was so unfortunate as to be the holder of a mortgage upon the property in controversy, and for that reason was a necessary party defendant; that during the progress of the case the property was sold under a foreclosure of this mortgage, and Mr. Kirby was compelled to buy it in.
    3. That counsel for complainants contended that said defendant actively participated in the litigation, and ought, therefore, to be liable for costs; that to a certain extent this contention is true; that Mr. Kirby appeared and answered, and his counsel participated at the hearing below; that when the ease was appealed he had to go to the expense of representing the interests of the owners of the land, or allow the defendants’ side of the case to go by default; that he was however in no manner responsible for the flowage complained of, nor was he a participant in the wrong involved in the controversy.
    4. That in view of the facts stated it is not equitable that he should be required to pay costs, and the fact that he being made a party employed solicitors, who were heard in the cause, ought not to afford any good reason why costs, which are in the nature of a penalty, and only awarded as against those responsible for the wrong complained of and, redressed, should be awarded as against him.

      Taggart, Knappen & Denison, contra, contended:
    1. That there is no equity in the application; that the decree appealed from gave costs against all of the defendants; that this requirement was not an oversight; that the minutes for the decree so expressly provided.
    2. That counsel for defendant Kirby, were served with notice of the settlement of said decree, accompanied by a copy thereof; that said defendant did not appeal from said decree, and its propriety cannot be considered here.
    (Complainants alone appealed, and the decree was modified so as to give them greater relief, and as modified affirmed. Editor.)
    3. That not only is said decree unassailable, but it and the decree of this Court are correct in awarding costs against all of the defendants; that if the question were to be determined solely by the responsibility of the defendant Kirby for the ilowage complained of, and his independent assertion of the right to flow, an award of costs against him would be proper; that his is the real substantial interest; that his counsel concede that lie was a necessary party; that his mortgage wae substantially the entire value of the property; that defendant Beard had no real substantial interest therein; that he was unable to keep up the interest on the mortgage; that the defendant Kirby really controlled the property, and was assuming the right to sell it previous to the hearing in the court below.
    That at the time of the filing of the bill he recognized that the mill was practically his, and by his answer distinctly claimed in himself an interest in and a right to the maintenance of the dam, together with a right of ilowage; that he not only appeared separately, but answered by separate solicitors; that after the settlement of the decree hjs solicitors took part in the-settlement of the ease on appeal, and conducted the case on his behalf in the appellate court.'
    4. That were the liability for costs to be determined alone by the. question of responsibility for maintaining ilowage, defendant Kirby would justly be held liable, but in order that he should bo made so liable it is not necessary that he be directly and primarily responsible for the maintenance of the dam; that it.is not true that costs are given as a penalty and against those only who are responsible for the wrong complained of, as suggested by counsel in their statement; that the fallacy of this theory appears by the consideration that had the bill been taken as confessed by defendant Kirby he could not in any event have been 'held liable for costs beyond the order pro eonfess.o; citing Govell v. Gole, 16 Mich. 223; that costs in chancery are usually awarded not as a penalty for a wrong complained of, but to indemnify the complainant by reason of the expenses incurred on account of the making of an unsuccessful defense, regardless of responsibility for wrong; citing Ireland v. Woolman, 15 Mich. 253; Strong v. Hollon,39 Id. 411; Mickle v. Maxfietd, 42 Id. 304, 312; JBotsford v. JBotsford, 491Id. 29; Kingman v. Sinclair, 80 Id. 427, 430.
    5. That defendant Kirby is the only defendant financially responsible; that-lie alone of the defendants has substantial interests; that he has separately defended that interest stubbornly and unsuccess fully; that he alone has defended in this Court; that to so modify the decree as to relieve him from liability for costs .occasioned by his unsuccessful resistance to a claim established by the decree of this Court, and thereby compel complainant to lose costs occasioned by his resistance would be unjust.
   The facts as shown by the record in the case and the opinion affirming the decree' were:

a — That complainant .being the owner! of certain- lands in Jackson county filed a. bill in the circuit court in chancery of that county to restrain the defendants • from overflowing said lands. ■

5 — That the defendant Kirby held a mortgage on the lands, and for that reason was joined as a defendant. .

c — That the defendants and their' grantors had acquired the right by pre-' scription to maintain the dam causing the ilowage complained of; that the question involved was whether they had, by increasing the ponding capacity of their mill pond, caused a-greater flow of water upon complainant’s lands than had existed for the prescriptive period; that the circuit judge found as a fact that the ponding capacity had been increased 18 inches, and decreed that the defendants should be required to reduce the ponding capacity so that the height of the water in the pond should be 8 inches less than the same was maintained at the time of the filing of the bill and at the time of the hearing.

(1 — That complainant alone appealed from said decree; that said decree was so' modified as to require the defendants to reduce the ponding capacity of their dam so that it should not and could not maintain the water in the. pond as high: as it did and Could by 18 i'nehes instead of 8 inches as • provided in the decree ap- • pealed from, and was in other respects affirmed, with costs to the complainant. See 65 N. W. Rep. 519.


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    George Peck v. August Rasch et al.
    Chancery appeal — Dismissal op for want of prosecution.
    Complainant moved to dismiss the appeal of the United States Optical Company, one of the defendants, for want of prosecution. Granted.

      Wilkinson & Post, for motion.
    A; G. Pitts and F. A. Iiaseh, contra.

   The facts as shown by the record and the affidavit of Hoyt Post, one of complainant’s solicitors, filed in support of said motion, were:

« — That on February 14, 1894, complainant filed a bill in the circuit court for thejRQunty.oUWayh'e, in chancery, to foreclose % land..contract; tliat the ease: was hé^tó.jh.WSR'^ORrt, ¿hd on dupe 4,-1895, a decree in favor of eopiplainantwasfilQ<j|a^entered;- ‘ .

ft — 1That on.September 3, 1895, the appellant filed its claim of appeal, notice of which, with acknowledgment of service, was on the. folio wing day, together with the required bond on appeal, which had been theretofore duly approved, filed in said caus¡f; that on September 21, 1895, the case,¡.which had been duly settled and signed, was also filed.

c — That in November, 1895, deponent Post called the attention of solicitor Pitts to the case, and urged him to have it in readiness for hearing at the January, 1896, term of court; that he was informed by said Pitts, that he was waiting for his clients to pay him. some money before going any further in the case; that on ascertaining .that no return had- been made to said appeal, deponent, on November 30, 1895, wrote solicitor Pitts.statr ing said fact, -and that unless the return-was at once'-made 'a motion would be made to dismiss the appeal; that; later said Pitts informed deponent that, he had written his clients about the matter; that deponent was unable, owing to engagements in court,-to give the matter attention at the October, 1895, term of court,. but did notify.said Pitts by telephone that unless said return was made in -time for a hearing at the January, 1896,- term of court, deponent would move to dismiss the appeal; that no return had been made at time of making said affidavit (December 16,1895); that the making of said return had been so long delayed as to prevent a hearing at said January term.

d — That it appeared on the hearing below that the defendant contractees had never paid a dollar on the contract sought to be foreclosed after making the down payment of $2,000; that the amount due for principal and interest and taxes, as shown by the decree, was $3,573.23; that the amount of principal to become due was $22,000; that the appellant or its successors are still in the occupancy of the premises covered by the contract, carrying on their business, without' the payment of-rent, thus reaping the benefit of the delay in prosecuting the appeal at the expense of the complainant. ‘


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    Jacob Hanselman v. Andrew J. Dover.
    Writ of error — To review judgment FOR COSTS ON OVERRULING PLEA IN BAR —Dismissal of writ.
    Motion to dismiss writ of error because no final judgment had been entered in the case, the judgment sought to be reviewed having been rendered on overruling defendant’s plea of a former adjudication of the same controversy, .and directing that the case stand for trial on the merits. Granted.

      George L. .Tiilliker, for motion.

      Dovel & Smith and Srmvrthwaite é Fowler, contra.

   The facts as shown by the record in tire case were:

a1 — That the plaintiff brought suit against the defendant to recover damages for the alienation from him by the defendant of his wife’s affections; that the defendant filed, with his plea of the general issue, without waiving the same, a plea of a former adjudication in his favor for the same wrongs and injuries and cause of action set forth in plaintiff’s declaration; that no further pleadings were filed in the case.

- 6 — Tliat the plea came on for trial before the court without a jury, and was. overruled, and judgment entered in favor of the plaintiff for costs, it being further ordered that the case stand for trial on the merits.

c — That the circuit court, in an opinion filed on rendering said judgment, used the following language:

“That it is true that the damages recoverable in the two cases are substantially identical, and the causes of action are alleged to have occurred at the same time; yet they are based upon two independent and distinct acts of wrong doing; that in the first suit the wrong-ful act complained of was the debauching of the plaintiff’s wife; that in the second suit the wrong complained of is the poisoning of the wife’s mind against the plaintiff, and inducing her to separate from him; that in both, the damages sought to be recovered are the loss of the wife’s society, love, service and comfort, with perhaps damages for the humiliation and disgrace; that identity- of damages alone does not constitute- identity of cause of action if our definition of a cause of action in tort, namely, an unlawful act, and all the damages which can arise out of it, be correct, for this identity would require identity of the wrongful acts which enter into and compose a vital part of the causes of action.”

d — That defendant, after settling a bill of exceptions in which was set forth the proceedings had on said trial, including the introduction in evidence of the pleadings and judgment in the case of Hanselman v. Hovel, tried in the same court, as also proof of the removal of said judgment by writ of error to the Supreme Court, and the filing in the court below of a remittitwr showing the affirmance of said judgment, said case being reported in 102 Mich. 505, sued out a writ of error to review said latter judgment, upon the return of which writ this motion was made.


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    The People v. Edward O’Neil.
    [See 65 N. W. Rep. 540.]
    Criminal Law — Rehearing on application of PEOPLE.
    [An examination of the opinion found in 65 N. W. Rep. 540, would seem to show that the judgment was reversed for the error of the trial court in retaining said juror. At the close of the' opinion the Court say that “in view of a new trial we deem it proper to say that we thiflk they (some of the remarks of the assistant prosecuting attorney in his closing argument to the jury) are the subject of just criticism, and ought not to be repeated.” Whether or not had this been the sole complaint it would have been held reversible error may be an open question. Editor.)

      Motion by prosecuting attorney of Eaton county for a rehearing, and for leave to correct bill of exceptions, so as to make it conform to the original notes of the stenographer as to the answer of a juror on his voir dire examination, his retention as a juror, after his answer as set forth in the bill of exceptions, having been held to be error. Denied January 29, 1896.

      Fred A. Maynard, Attorney General, and Horace 8. Maynard, Prosecuting Attorney, for motion.

      Tarsney & Wieker, contra.

   The facts as shown by the [record in the case and the affidavits of the stenographer and his assistant stenographers filed in support of the motion were:

a — That the respondent Was convicted of a violation of the local option law in force in Eaton county, which conviction was reversed.

6 — That among other errors assigned by the respondent was the retention of a juror; who Qn.hiS'ifoi-Pidim.exainination, as shown by the-, biff ®fi.printed record; in answer» tion “what his verdict would be if he found the testimony about equally balanced between the people and the respondent,” replied, “I should think it would be guilty,” which assignment was held well taken.

c — That the original notes of the official stenographer disclosed the fact, as shown by his affidavit, that the answer of said juror to said question was “I should think it would be acquittal.”

d — That said stenographer read his notes to two assistant stenographers, who, for the purpose of expediting the furnishing of a transcript, to the respondent’s attorneys, divided the work of transcribing said notes as tallen by them on said reading; that the press of business was so great that said stenographer did not have an opportunity to compare fully the transcript of the testimony as made by said assistants -with his original notes; that when he read said original notes to said assistants he correctly read them; that one of said assistants in transcribing her notes transcribed the word “guilty” when it should have been by her notes “acquittal.”


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    Florence M. Demarest v. John H. Palmer, Circuit Judge of Newaygo County.
    New trial — Granting of discretionary WITH TRIAL COURT.
    Relator applied for mandamus to comBateite» respondent to vacate an order granting'.a, new trial in an action of ejeetment bkeugjjfchy, relator, and reinstate the- judgment, rendered in her favor. An order to show cause, was denied, the Court not attempting to pass upon the merits of the question raised, but holding that it was discretionary with the lower court to grant a new trial.

      W. D. Fuller, for relator, contended:
    1. That pn granting the motion for a new trial the respondent stated that he did so solely, upon the ground that the deed could not be attacked in ejectment by showing the mental ineompetency of the grantor to make it, but that resort must be had to a court of equity to set it aside; that on a second trial the plaintiff will be met by this same ruling, and as this is the vital question in the ease, and if decided in favor of the contention of the defendant the present action must be abandoned, this Court should settle the question upon this application, and thus save both parties the expense of a second trial, and an appeal to this Court, if the contention of the defendant be well taken.
    2. That in Lynch v. Doran, 95 Mich. 395, the sole question in issue was whether or not the trial court erred in directing a verdict for the defendants on the ground that the plaintiffs had introduced no evidence tending to show the incompetency of Mr. Doran to execute the deed under which the defendants claimed title ; that on page 406 this Court, after reviewing the testimony offered to show such incompetency, say:
    “It is unnecessary to state the evidence on the part of the defendants. It was in •direct conflict with plaintiffs’ evidence upon those facts which are claimed to establish incompetency. If the plaintiffs made a case from which mental incapacity may fairly be inferred, they were entitled to have the case submitted to the jury.”
    That while the ruling of the circuit judge was sustained as justified by the want of evidence to show such mental incapacity, the case seemed to be authority in favor of the right to attack a deed in ejectment on the ground stated.
    3. That in Moran v. Moran, 63 N. W. Rep. 989 (106 Mich.-), upon which the respondent based his action in granting a new trial, the facts were entirely different than in Lynch v. Doran; that the action was brought by the guardian of an incompetent person for the avowed purpose of setting aside a deed which he had executed prior to being adjudged incompetent; that equities existed in favor of the defendants growing o.ut of the payment to the grantor and to his wife of moneys on account of the deed, which could only be fully settled in the equity court; that were it not for the fact that the Court lay down the general proposition that a deed executed by. an incompetent person is not void, but only voidable, the case would easily be distinguished from Lynch v. Doran-, that be this as-it may if the true construction of the decision in Moran v. Moran is to the effect that under no circumstances can the question of the invalidity of a deed on the ground of the alleged mental incapacity of the grantor to execute it be tried in an action of ejectment or other action at law, no reason is seen why such announcement cannot properly be made on this application, especially as there is at least a seeming conflict between the eases cited on this question.
    4. That no equities are involved in this case; that the attorney for the defendant admitted on the argument of the motion for a new trial that the defendant paid no valuable consideration for the deed, hence the clean out question is fairly presented, and it is hoped that the Court may see its way clear to decide it, and thus remove all doubt on the subject.
   The facts as alleged in the petition for mandamus were:

1. That relator is plaintiff in an action of ejectment pending in the circuit court for the county of Newaygo, in which she seeks to recover the undivided one-half of certain lands in said county from Harriet Demarest, the defendant; that the declaration is in the usual form; that the defendant’s plea is the general issue, and that no question as to the sufficiency of the pleadings has been made.

2. ’ That a trial of the issue thus formed was had before a jury at the last June term of said circuit court; that on June 21, 1895, a verdict was rendered in favor of your petitioner, awarding to her as owner in fee the interest in said land claimed in her declaration, and that thereupon the usual judgment for a plaintiff in ejectment was entered upon said verdict, except that no writ of restitution was awarded.

3. That on September 3, 1895, a new trial was granted in said ease upon the motion of defendant.

4. That by stipulation of the attorneys for the respective parties the following facts were admitted for the purposes of said trial, namely:

a — That on April 20,1893, George Demarest was the owner in fee of the lands described in plaintiff’s declaration.

6 — That on May 4, 1893, George Demarest died leaving as his sole heirs at law the plaintiff, who is the daughter of a deceased brother of said George Demarest, and the defendant, who is the widow of said George Demarest, which heirs would under the statute inherit equally all of the real estate of which said George Demarest died seized and possessed.

c — That at the time of the commencement of this suit the defendant was. in possession of the lands described in plaintiff’s declaration, and claimed to be the sole and absolute owner of the same, and to hold said lands adversely tothe plaintiff.

5. That after, reading said admitted facts to the jury the plaintiff rested her case; that thereupon the defendant offered in evidence the record of a warranty deed, pm-porting to have been executed by the said George Demarest to the said defendant on April 13, 1893, and convey-' ing to her the lands described in plaintiff’s declaration, which deed was received in evidence, and thereupon the defendant rested her case.

6. That thereupon the plaintiff offered to show on rebuttal that at the time of the execution and delivery of said deed the grantor, George Demarest, was mentally incompetent to execute and deliver the same, which proposed testimony was objected to by the defendant upon the, ground that such alleged mental incapacity could only be shown in support of, a bill in equity filed to set asidesaid deed on that ground; that said objection was overruled, and the plaintiff permitted to' introduce testimony tending to show such mental incapacity on the part of said George Demarest; that this' was the sole defense made by the plaintiff against said deed and in aid of heT’ original case; that in order to render a verdict in favor of the plaintiff the jury mdst 'have found, under the charge of the court, such mental incapacity, and ás a consequence the invalidity of said deed;-’ '• ' ■'

7. That as stated by the circqift: .judges a new trial was granted' on the sole ground that the plaintiff could not show in said action of ejectment that said George Demarest was mentally incompetent to execute and deliver said deed, but must resort to a court of equity to set aside said-deed on that ground; that said circuit judge stated that his holding was based upon the decision of this. Court made in Moran v. Moran, 63 N. W. Rep. 989, and that in the absence of that decision the ruling made upon the trial* would be adherred to as within the decision in Lynch v. Doran, 95 Mich. 395, and the motion for a new trial would be de-. nied.

8. That it was admitted by the defendant’s attorney on the argument of said motion for a new trial that no valuable consideration was paid by the defendant for said deed.


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    Frank Albers v. Fred J. Russell, Circuit Judge of Muskegon County.
    Injunction — To Restrain the collection of taxes — Dissolution of.
    Relator applied for mandamus to compel the respondent to vacate and set aside an order dissolving a preliminary injunction issued by a circuit court commissioner of Muskegon county to restrain the collection or attempted collection hy distress of any of the taxes for the year 1895 assessed and levied against relatqr or against his property in the city- -of North Muskegon. An order to show' cause waq granted, and on the hearing on petition and answer the application was denied.

      Aipmr Jones, for relator, contended:
    1. -That the answer of the respondent admits the truth of relator’s petition except the allegation that relator sought to attack only city and school taxes, as to which allegation it says “that the bill of complaint doe's not show that only such taxes are attacked;” that as the bill was filed October 39,1895, it is apparent that it does not attack State and county taxes, which were not then levied; that by the charter of the city of North Muskegon as it existed when said taxes were levied (Act No. 215, Local Acts of 1891) State and county taxes were levied upon an entirely different roll .from the city and school taxes, and at a different time, the collection of the latter commencing in August and of the former in December.
    2. That respondent’s attorneys in their brief confine their argument to the only issue in the case, namely, does section 114 of'the general tax law of 1893, which protides that “no injunction shall issue to stay proceedings for the assessment or collection of taxes under this act,” apply to this case; that the bill was not filed to enjoin the assessment of any taxes, but to enjoin the eolleetion of certain taxes; that the real question is does it attack taxes-provided for by said general tax law; thfit in the defendant city no taxes are collected under the general tax law except the State and county taxes; that as the bill is not directed to those it is apjmrent that its purpose is not to stay proceedings to collect taxes “under this act;” that if this conclusion is wrong it is because relator is in error in asserting .that the city and school taxes of the city of North Muskegon are not collected under the-general tax law.
    3. That the general tax law absolutely governs cities so far as the State and county taxes are concerned; that for that purpose a city is a township; that townships obtain the power to collect township and school taxes from the general tax law of the State, and levy and collect the same at the same time they levy and collect State and county taxes; that without this law they could not collect said taxes, no more than their proportion of the State and county taxes; that it is entirely different with the defendant city, which is organized under a special charter, which concerns no other-corporation but itself; that no, general law has been passed governing its municipal relations with its own people in the matter of taxation; that it obtains its powers in the matter of raising moneys to defray municipal expenses from its charter, and by it its powers in that regard are limited and defined.
    That said city is organized into a school district under Act No. 337, Local Acts of 1891, entitled “An act to incorporate the public schools of the city of North Muskegon;” that from that act alone the district obtains its power to maintain schools and to raise money for that use; that the charter of the city provides that in the month of June the moneys .ordered to be raised by the common council for city uses and by the school board for district uses shall be certified to the city assessor, and then be by him in July spread upon a tax roll, and with a warrant annexed be delivered in August to the city treasurer for collection; that this whole proceeding is unknown to the general tax law of the State.
    That chapter 8 of the charter is entitled “Assessment and collection of taxes;” that it provides special methods of assessing and collecting taxes in the defendant city, and does not apply to .any other city; that there are two tax rolls instead of one, as required. by the general tax law, one for city and school taxes levied under. the charter and another for state and county taxes levied under the general law; that the former is made in July and delivered to the collecting officer the first of August; that the latter is made at the same time provided for the levy of taxes in townships, and,is so delivered the first Monday of December; that no provision appears in the general tax law for an August roll, and no authority exists for collecting taxes in that month.
    4. That the bill in the case of Eddy v. Township of Lee, 73 Mich. 123,129, cited by. counsel for respondent, was filed in February against a township to enjoin the collection of all State, county, township, and school taxes, and decides nothing more than that the Legislature has the constitutional authority, where it has provided a plain, complete remedy at law to recover back taxes illegally assessed and collected, to take away the remedy by injunction to restrain their collection.
    That the drain law of 1885 (3 How. Stat. § 1740 b 6) provides that “all drain taxes assessed under its provisions shall be collected in the same manner as State and other general taxes are collected,” yet the same law (3 How. Stat. § 1740 g 1) provides that the collection oí no.tax •levied or ordered to be levied for the payment of the location or construction of any drain laid out under said law shall ' be perpetually enjoined in consequence of any technical error; thus by fair implication recognizing the remedy by injunction where the defects are not technical, and yet section 107 of the general tax law of 1885 provided that no mjunc- . tion should issue to stay proceedings for the assessment or collection of taxes under said law; that drain taxes are collected under the general tax law; that the power to assess and collect them is derived from the drain law, and the general tax law does no more than to define the particular method by which that power shall be executed; that the Legislature itself recognizes that the prohibition of the remedy by injunction does not apply to drain taxes; that this Court in Twicer v. Drain Commissioner, 50 Mich. 5, expressed a decided approval of the remedy in equity, and refused the remedy by certiorari, giving as its reason that the former remedy is the safest and best in every respect; that there is just as much reason for urging that the enjoining of drain taxes is prohibited by the general tax law as for urging that the enjoining of the city and school taxes assessed in the city of North Muskegon are so prohibited.
    That in Taylor v Township of Avon, 73 Mich. 604, a tax-payer paid drain taxes under protest, and then sought to recover them back, acting under section 42 of the general tax law; that this Court in deciding that he could not recover held that the provisions of the general tax law for the payment of taxes under protest do not apply to any taxes except those assessed under the act; that drain taxes do not come within the letter and spirit of said act, but the mode of procedure to assess and collect the same are provided for in the drain law itself.
    That the case of Clee v. Samders, 74 Mich. 692, was a proceeding in equity to restrain the collection of a village tax, and this Court sustained the proceedings and allowed.the injunction to stand, yet there was the same provision in the general tax law as to injunctive relief that there is now; that village taxes are not assessed or' collected under the general tax law, and so do not come within the provisions prohibiting injunctive relief no more than do city and school taxes, the authority to collect which is derived from another local act where the process by which the collection is made is also clearly and fully defined.

      Chamberlain & Cross, for respondent, contended:
    1. That whether or not the application of the relator should be granted must depend largely upon, whether or not section 114 of Act No. 206, Laws of 1893, cited in relator’s brief, applies to taxes assessed in the city of North Muskegon, which at the time the taxes complained of were assessed existed under Act No. 215; Local Acts of 1891.
    That from the title of Act No. 206 Laws of 1893, it is obvious that it was intended to apply to the assessment and collection of all taxes, whether levied within townships or within the limits of an incorporated city; that the provisions in the body of the act are framed throughout with reference to their application to cities as well as townships; citing sections 10, 18, 23, 39, 40— 42, 45 — 48; that the foregoing and numerous other sections show conclusively that the provisions of the act apply to cities as well as townships, and it would seem that section 114 ought to be decisive of the question involved in this matter.
    2. That the charter of said city m no manner conflicts with said general tax law, but on the contrary is framed to conform thereto so far as matters of taxation are concerned; that section 1 of chapter 8 provides that “the assessor of said city shall, in all respects, except as otherwise provided in- the act, conform to the provisions of law governing the acts of supervisors in the several townships of this State in 'the assessment of property and the levying of taxes;” that section 10 of chapter 8 provides that “the levy of sueh taxes shall be in accordance with the provisions of law governing the levying of such taxes in townships, except as herein otherwise provided,” while in the closing paragraph of section 12, chapter 8, it is provided that “the treasurer shall have sueh other powers and perform such other duties, not herein particularly enumerated as are conferred upon township treasurers by the general tax law of this State.”
    1. That relator has an adequate remedy at law; that the rule laid down' in liddy v. Toionship of Lee, 73 Mich. 123, should govern in this matter; that in any event the discretion of the respondent in dissolving the injunction should not be disturbed.
   The facts as established by the petition and answer were:

1. That on October 30, 1895, relator filed a bill in the circuit court for the county of Muskegon, in chancery, against the city, of North Muskegon and its treasurer, in which he alleged:

a — The municipal and representative character of the defendants respectively.

b — That the defendant city had undertaken to levy certain taxes in the year 1895 against relator, and against his lands and personal property, describing two parcels of land, giving the total amount of tax levied upon each, and averring that the defendant city claimed á lien upon said several parcels of land to the amount of the tax assessed against each; also stating the total amount of personal property tax, and that the defendant city claimed a lien upon the personal property of relator to secure and enforce the payment of the amount of said tax, and that all of said taxes were a valid charge and debt against relator.

c — That each and every of said taxes were illegal and void for reasons set forth in the bill.

d! — That the taxes aforesaid had been spread upon a pretended tax roll by the assessor of said city, and levied against relator and his property, and appear to be a charge against both; that the assessor had affixed to said pretended roll his warrant in due form, commanding the defendant treasurer to collect said taxes by distress and sale of relator’s property; that said roll was then in the hands of said officer, who claimed that he had the right and that it was his duty to collect said taxes from relator as commanded in said warrant.

. e — That the defendant city was and for more than a year had been unable to meet its obligations, and that by reason of the depreciated condition of the taxable property in said city and the small value thereof, and its great indebtedness said city was insolvent.

2.That on October 30, 1895, upon the order of a circuit court commissioner of the county of Muskegon, and upon the filing of a bond in a penalty of $500, an injunction was issued requiring the defendants to desist and refrain from collecting or attempting to collect by distress any of the taxes for the year 1895 assessed and levied against the relator or his property until the further order of the court.

3. That the defendants’ answer admitted the averments of the bill as to the levy of the taxe's, and denied the allegations of the bill as to their illegality, etc.

4. That the respondent, in answer to the statement in relator’s petition that he had no other specific legal remedy, and could not have adequate relief without the aid of a writ of mandamus, gave it as his opinion that relator could have adequate legal relief by paying the taxes in controversy under protest, and suing to recover back the amount so paid, and further suggested as a conclusive reason why the writ asked for should not issue that the circuit court commissioner had no authority to grant the injunction because such action was prohibited by section 114 of the general tax law of 1893.


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    Aaron Phelps v. James B. McMahon, Circuit Judge of Osceola County.
    Replevin — Sufficiency of affidavit.
    Relator applied for mandamus to compel the respondent to vacate an order overruling relator’s special appeal from a judgment rendered against him in justice’s court as defendant in an action of replevin. Order to show cause was denied February 18,1896. <

      Charles A. Withey, for relator, contended:
    1. That the affidavit does not comply with the statute, and is within Phenix v. Clark, 2 Mich. 327; MeGlaughry v. Crateenberg, 39 111. 117; Railroad Co. v. Andrews, 53 Id. 177.
    2. That the respondent, to sustain the affidavit, read it as though the words “John Menier” found on the line below "George Wells” were moved up on to the line above so as to occupy the space between the words “deponent............ George Wells;” that it is insisted that there is no warrant for doing so; that the affidavit reads fairly and intelligibly as made, and there is nothing to show that anything is misplaced upon it; that to read it in that way is to make of it an entirely different instrument; that it cannot be treated as a clerical error, because there is nothing upon its face to show that John Menier intended to comply with the requirements of the statute, but on the other hand the inference is stronger that he did not intend to comply with them, and could not than though his name did not appear at all.
   The facts as alleged in the petition for mandamus were: ,

a — That John Menier and George Wells sued relator in replevin in justice’s court; that the following is a fae similie of the affidavit upon which the writ was issued:

STATE OF MICHIGAN,) County or Osceola. 5 ss.

John Manier, George Wells being duly sworn do depose and say that one red and white yoke of working cattle, also yoke staple and ring for said cattle to work in of the value of $100 and not exceeding in value one hundred dollars of the personal goods and chattels of this deponent is unlawfully detained from the possession of said deponent the said John Manier and George Wells, of Evart township, in said County of Osceola by Aaron Phelps and that said deponent is now lawfully entitled to the possession of said goods and chattels. And this deponent further deposing says that the above mentioned goods and chattels have not been taken for any tax, assessment or fine, levied by any law of this State, nor seized under any execution or attachment against the goods and chattels of the said deponent ---George Wells liable to execution; and that said deponent the said John Manier claim one hundred dollars damages for the said taking and detaining said goods and chattels. And further tlris deponent says not.

John Manier

George Wells

Subscribed and sworn to before me, this 14th day of June, A. I). 1895.

A. T. Smith,

Justice of the peace in and for said Osceola county, State of Mich.

b — That on the return day relator appeared specially by his attorney, C. A. Withey, and objected to the jurisdiction of the court, and asked that the proceedings be quashed on the ground that the affidavit was insufficient to confer jurisdiction upon said justice to proceed; that among other reasons assigned why said affidavit was so insufficient was the following:

“It does not state that the property described in the writ has been taken for any tax, assessment, or fine levied by any law of this State, nor seized under any execution or attachment against the goods and chattels of one of the persons making said affidavit, namely, John Menier, liable to execution.”

That said objection was overruled, whereupon relator withdrew from the court, and allowed the matter to proceed; that such proceedings, were afterwards had as resulted in the rendition of a judgment in favor of the plaintiffs, from which relator took a special appeal to the circuit court for Osceola county, alleging in his affidavit that the justice erred in holding the affidavit sufficient, and in overruling relator’s motion to quash and dismiss for the reason assigned in his motion.

c — That in due time and in accordance with the regular practice, said special appeal came on to be heard, and was overruled by respondent, and relator compelled to go to trial upon the merits, to which ruling relator by his attorney duly excepted.


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    Leverett A. Pratt and Walter Koeppe v. The Clerk and Chairman of the Board of Supervisors of Cheboygan Co.
    Board of Supervisors — Allowance of CLAIM AGAINST THE COUNTY — DUTY OF CHAIRMAN AND CLERK TO ISSUE ORDER THEREFOR.
    delators applied for mandamus to compel the respondent clerk to make, issue, and deliver to relators, and the respondent chairman to countersign an order or voucher on the treasurer of Cheboygan county in the usual form for the sum of $875, being the amount allowed relators by the board of supervisors of said county for their services as architects in preparing plans and specifications for a county court house. An order to show cause was granted, and on the hearing on petition and answer had February 19, 1895, a writ of mandamus was issued.

      Shepard & Riley, for relators.

      Frost d- Sprague, for respondents, contended:

      1. That relators were never employed by the board of supervisors of Cheboygan county to draw plans and specifications for the erection of a contemplated court house, in the sense in which the word “employed” is usually used, but that relator Pratt was selected by said board as the party to whom a contract therefor should be tendered, as appears by the minutes of the meeting of said board.
    [The minutes show that a motion was made to proceed to an informal ballot for the selection of an architect to construct the new court house, which motion prevailed; that an informal ballot was taken, and relator Pratt received all of the 19 votes cast, whereupon a motion “that the informal ballot be declared formal, and relator Pratt be chosen the architect to furnish plans for the new court house” was carried by a vote of 16 to 4, after which the action set forth in the latter portion of paragraph 6 of the “facts established” was taken. Editor.]
    2. That by the writ of injunction the relators were enjoined from taking any steps in the matter of furnishing said plans and specifications.
    3. That the action of the board of supervisors in voting said $875 to relators was in direct violation of said injunction; that it was illegal and void because there was no money in the county treasury or provided to come into such treasury that had been raised for the purpose of paying relators’ alleged claim, and was without consideration, and worked a fraud upon the tax-payers of Cheboygan county.
   The facts ás established by the petition and answer were:

a — That relators are copartners and architects, and draw plans for public buildings.

6 — That at a meeting of the board of supervisors of Cheboygan county held May 26,1894, by a vote of 16 to 4 relator Pratt was chosen as the architect to furnish and prepare plans for the court house proposed to be erected in said county, after which, and by the unanimous vote of said board, the county clerk was instructed to advertise for bids for the construction of said court house in accordance with the plans and specifications of the relators, said advertisement to be drawn under the supervision of the prosecuting attorney of said county.

c — That on June 19, 1894, an injunction was issued enjoining the issuance of certain bonds authorized by the board of supervisors by resolution adopted May 19, 1894, to be issued and sold for the purpose rof raising money with which to erect a court house in said county; also the execution and delivery of any con-, tract or contracts for the construction of said court house; also the consummation of the purchase of a certain court house site described in said injunction; also the payment of any balance or purchase price unpaid on the purchase of said property; also the borrowing of any sum of money for the payment for said premises; also the issuance of any order or warrant or obligation of said county therefor; also the taking of any other or further steps towards the erection of said court house or the purchase of a court house site.

d — That on July 23, 1894, said injunction was modified so as to permit said board of supervisors to purchase and pay for a court house site, or if already purchased to pay for such site, and to borrow money for that purpose, or, if already borrowed, to issue to evidence said indebtedness the bond, warrant, or other usual obligation issued by counties under similar circumstances.

e — 1That said injunction was served upon both of the relators and on respondents, and as modified was in force when respondents refused to make and countersign respectively the order in favor of relators.

/ — That relators at various times prior to their October session in 1895 had been before said board of supervisors urging the payment of their alleged claim, which said board had always refused to recognize or pay; that at said October session said board having had said plans and specifications, which, after the service of said injunction, had been delivered to the clork of said board, presented before and to it by relators, and having a bill from said relators before it, accepted said plans and specifications and the services of relators, and by a vote of 19 to 2 allowed said bill at the sum of $875, with the further condition that if the county ever used- said plans said $875 should be considered a payment for the same.

[Respondents in their answer denied that any contract was ever entered into between Cheboygan county and relators; that said county ever accepted any employment tendered by relators, and affirmed that in pursuance of the resolution of the board of supervisors of date May 26,1894, the legally appointed representatives of said board prepared and presented to relators a contract in accordance with said resolution, which relators refused to accept, but drew up another agreement which they were willing to sign, but the same was not accepted by said representatives because not in accordance with the resolution and desires of said board. Respondents further set up that the plans and specifications were never presented to or accepted by the said board of supervisors until after the service of the writ of injunction. Editor.]

g — That after the adjournment of said board of supervisors, said vote allowing said account remaining in full force, relators, through their duly authorized attorneys, demanded of respondents that they issue and deliver to relators such an order or voucher upon the county treasurer as would enable relators to receive and said treasurer to pay on presentation the sum allowed to relators as aforesaid, but that respondents refused to comply with said demand.


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    Henry H. Coe et al. v. Orville W. Coolidge, Circuit Judge of Berrien County.
    Bond — To stay proceedings pending SETTLEMENT OF BILL OF EXCEPTIONS— Stay should be fob a definite time, AND APPELLANT SHOULD PROSECUTE HIS APPEAL WITH DILIGENCE.
    Relators applied for mandamus to compel the respondent to vacate an order made on filing the statutory bond staying proceedings pending settlement of bill of exceptions, the appellant claiming the right to take out a writ of error at any time during the statutory year. An order to show cause was granted, and on the hearing had February 19,1895, on petition and answer a writ of mandaims was granted directing the circuit judge to set aside the order for a stay, it being general and indefinite as to time, and the appellant having made no progress with his appeal.

      Taggart, Knappen & Denison, for relator, contended:
    1. That the contention of the appellant that a bill of exceptions having been settled he need not take out a writ of error or do anything further until almost the expiration of the statutory year, is untenable, nor can the action of respondent staying execution upon that theory, and refusing to ±x t time within which relators may have an execution unless a writ of error is issued, be sustained.

      l-Iowell c& Carr, for respondent.
   The facts as established by the petition and answer were;

a — That the judgment sought to be reviewed was rendered June 11, 1895, and included an order giving the defendant 90 days in which to prepare and settle a bill of exceptions.

6 — That on June 19, 1895, on filing a bond under the statute an order was made ex prate staying all proceedings on relator’s judgment until the further order of the court.

e— That on December 24, 1895, relators moved the court to vacate said order because entered into without notice of application therefor to relators’ attorneys, and improvidently. ■

d — That prior to making said motion a lengthy correspondence had taken place between relators’ attorneys and the respondent and the defendant’s attorneys regarding the settlement of a bill of exceptions; that said bill was not filed until November 21,1895; that in said correspondence relators’ attorneys urged defendant’s attorneys to take out a writ of error, to the end that said case might be heard at the earliest possible moment, and surely at the January, 1896, term of the Supreme Court, which request had not been complied with when said motion was made.

e — That on September 80, 1895, said motion came on for hearing; that respondent was requested by relators’ attorneys at least to fix a time within which execution should issue unless the appellant should take out a writ of error; that respondent declined to comply with said request, but did find that proper and sufficient notice of the time and place of settling the bill of exceptions was not given to relators’ attorneys, and thereupon gave the appellant 30 days from January 8, 1896, in which to perfect said bill of exceptions, and ordered that the stay of proceedings complained of should remain in full force and effect until the further order of the court.