text:
    Jacob DeVries v. Seth W. Lyon et al.
    Chancery Appeal — Dismissal of for want of Prosecution.
    Defendant Lyon moved to dismiss the appeal of complainant and' of Sybrant Wesselius and Daniel E. Corbitt, sureties on complainant’s bondf or costs, for want of prosecution. Granted February 26, 1895.

      Taggart, Knappen & Denison, for motion.

      I). E. Corbitt, contra.

   The facts as shown by the affidavit of Loyal E. Knappen, one of the counsel for defendant Lyon, Aledas the basis for said motion were:

a — That on July 11,1895, a Anal decree in favor of the defendant Lyon was entered.

6 — That on August 12, 1895, separate claims for appeal were Aled in behalf of complainant and of Sybrant Wesselius and of Daniel E. Corbitt, sureties on complainant’s bond for costs, and seven days later bonds on such appeals were Aled; that the fee required by law to be paid to the register in chancery has not been paid, nor has said officer made return of either of said appeals.

c — That on October 9, 1895, an order was made extending the time for settling a ease on appeal for thirty days from said date, but no ease had been settled or further extension of time for that purpose been granted.

d — That neither of said appeals had been perfected; that the time for so doing had expired, and that asdeponent was informed and believed, said appeals had been abandoned.

e — That on or about January 15, 1896, affiant applied to complainant’s solicitor for his consent to the dismissal of said appeals in order to save the making of application therefor; that he gave consent upon condition that the decree for costs, entered against complainant and his sureties on his bond for costs, be discharged, and signed a stipulation to that effect, but said stipulation had not been signed by the complainant in person.


source: Caselaw Access Project

license: Public Domain

text:
    Andrew Mattson v. Jay A. Hubbell, Acting Circuit Judge of Ontonagon County.
    Costs — Witness fees to party to suit. —Allowance of.
    Relator applied for mandamus to compel the respondent to allow to relator, as a part of the costs taxable in his favor as plaintiff on the continuance of the case on application of the defendants, fees as a witness. An order to show cause was denied February 18, 1895.

      Julius J. Patch, for relator, contended:
    1. That it appears from the testimony produced on the taxation of costs that relator is a laboring man; that for the sole purpose of being sworn as a witness at the trial of said cause brought to recover for the personal labor of relator and two of his- co-laborers, for whom he had been designated as agent, and giving his testimony therein, he being deemed a material and necessary witness as shown by said testimony, he actually traveled the distance of 108 miles, and expended the sum of $14, and lost four days time; that relator, by deAeiency of the law, unable to collect complete compensation in the premises, about $18, the respondent denies him that which the Legislature said he may have, $1.80.
    2. That the justice of relator’s claim is so apparent that no citation of authority, except How. Stat. § 9002, is necessary.
   The facts as alleged in the petition for mandamus were:

a — That relator, in his own behalf and as agent for two of his co-laborers, on March 28,1895, commenced a suit by attachment in the circuit court for Ontonagon county to enforce a log lien; that issue was joined in said action; that the first trial resulted in a disagreement of the jury; that the case was noticed by relator for trial for the February, 1890, terin of court; that application was made by the defendant for a continuance; that said application was granted upon condition that defendant pay to relator his reasonable costs in that behalf expended, to be taxed by the presiding judge.

b — That relator presented to respondent an itemized statement of the costs which he claimed the right to tax; that among the items was one for $12.80 for his fees as a witness, made up of two days* attendance and 108 miles travel; that relator resided at Metropolitan, Dickinson county, Michigan; that for six weeks prior to February 4, 1896 (the first day of court), he had been employed about ten miles from the city of Marquette; that at the request of his attorney to be in Ontonagon on February 4, 1896, to give his evidence in the case, he traveled the distance charged for, and attended upon said court February 4 and •5 for the purpose of being sworn as a witness at the trial of said case and give his evidence therein, and not to assist in the management thereof.

c — -That upon objection being made to the taxation of said fees and other items of said costs, relator was sworn as a witness, and testified that he came to Ontonagon, from the place where he was at work, purposely as a witness in the case, and was in said city on February 4 and 5 for that purpose.

d — That relator’s attorney testified that the distance, as computed by him, from Ontonagon to the place where relator was at work was 108 miles; that relator was summoned in good faith to attend at the trial of the case; that he was a material and necessary witness therein; that he traveled the number of miles and actually attended the number of days specified; that he was in attendance upon said court for the time charged for the sole purpose of being sworn as a witness, and not to assist in the management of the case; that affiant was notified on February 3, 1895, that an application for a continuance would be made; that he did not reach Ontonagon until the afternoon of the following day.

e — That at the conclusion of the testimony respondent, in passing upon the bill of costs, said “This man Mattson is the plaintiff, and not éntitled to any witness fees. He had to be here any way. I will allow the bill, except the $12.80 claimed by plaintiff.”


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    The City of Detroit v. J. W. Donovan, Circuit Judge of Wayne County.
    Judgment — Entry of nunc pro tunc— Interest from date of verdict.
    Relator applied for 'mandamus to compel the respondent to vacate a judgment in a personal injury case entered nunc pro tunc for the amount of the verdict, a year and a half after its rendition. An order to show cause was granted, and on February 26, 1895, after a hearing on petition and answer, the writ was granted.

      John J. Speed, for relator, contended:
    1. That the verdict was rendered March 12, 1894; that on September 23, 1895, without notice to the attorney for the defendant, and without any other reason excepting that the attorney for the plaintiff asked for it, respondent directed a judgment to be entered as of March 12, 1894; that there is no pretense that the court had ever directed a judgment to be entered or that any application had been made for a judgment prior to September 23,1895.
    2. That the ehtry of the judgment nunc pro tunc was apparently for the purpose:
    a — Of recovering interest in an action of tort' from the date of the verdict.
    6 — Of preventing the issuance of a writ of error by antedating the judgment more than a year,
    3. That it is only on verdicts entered in suits upon contracts, express or implied, that interest can be allowed in making up the amount of the judgment; citing How. Stat. § 1598; tliat to date back the judgment was the same as though interest had been computed and allowed up to the date of the actual entry of'the judgment; that there is no authority for the entry of a judgment nunc pro tunc in order to accomplish such a result, nor is it any apology for the action of the court to say that the plaintiff was entitled to a judgment if it had been ordered at the date as of whieh judgment was entered nune pro tune; that he was not in fact entitled to a judgment until he applied for it and paid the judgment fee; citing Act No. 259, Local Acts of 1883, nor was he entitled to it until the court had made an order that the same be entered; that the entry of judgments and decrees nune pro tune is considered at length in Erem. Judg. chap. 3.

      B. T. Prentis, for respondent, contended that the writ must be denied because:
    1. The petition fails to show what the application to the respondent was, or what evidence was before him, hence this Court does not know the grounds of respondent’s action, or why he ruled as he did, and therefore cannot say that he was wrong, much less that he abused his discretion; citing Powers v. Circuit Judge, 30 Mich. 387; Jones v. Circuit Judge, 34 Mich. 373; McCarthy v. Circuit Judge, 36 Id. 274; Insurance Go. v. Circuit Judge, 79 Id. 241; O’Brien v. Chambers, 97 Id. 607; Hitchcock v. Circuit Judge, 97 Id. 614, and note.
    2. Whatever the showing was before the respondent, it was not properly before him, and he would have had no right, against our objection, even to hear the motion, much less to grant it. The plaintiff duly objected to the hearing of the motion because:
    a — The affidavit upon which the motion was founded was not correctly entitled in the cause; citing Whipple v. Williams, 1 Mich. 115.

      b — The notice referred to the affidavit for the grounds of the motion, but, as there was no affidavit, that was not sufficient even if otherwise it would have been so.
    c — Circuit Court Rule No. 29 requires a motion to be entered in the motion book. The notice in this case simply shows that the motion has been filed, which is not a compliance with the rule, and as the objection was made in due season there was no waiver.
    The respondent returned:
    “That the plaintiff appeared at said hearing, and objected thereto because the motion, notice, and affidavit upon whieh the defendant claimed to have the motion heard were not entitled in said case; that the grounds of said motion were not properly set out under Circuit Court Rule No. 29, and that the motion did not appear to have been entered in the motion book, but only filed; that said notice, motion, and affidavit were entitled ‘Josephine State v. The City of Detroit;’ that said motion set forth as the grounds on which it was founded only that it was based upon the files and records in said cause, and the affidavit of John J. Speed, hereto attached, and that the said motion did not set forth that it had been entered in the motion book, but that it had been filed. Editor.]
    3. Mandamus is not the proper remedy in this case because:
    a — The matter was addressed to the discretion of the respondent, and that discretion was not abused.

      b — The defendant had another remedy by writ of error, nor will the Court relieve it if such remedy has been lost by its own fa nit or default, delay, negligence, or carelessness. Under this head should be considered the fact found by the respondent that defendant. authorized and approved the judgment as it was.
    4. The circuit court had a right to enter this judgment at the time and as it did, and, if so, it would be unheard of “in the history of judicial proceedings” to compel that court to set it aside.
    5. Justice will be best subserved by aUowing the judgment to stand. The respondent returns that he found that the verdict was a small one, and that it was right and just to plaintiff that it should bear interest from the time when he would have entered it but for the false record.
    6. If defendant has lost its remedy by writ of error, it is because of the action of the corporation counsel in neglecting to file assignments of error, or to have the judgment entered, and return made, or to have return made after judgment instead of which he dismissed his writ. The return would have brought up a judgment actually entered after the return day of the writ, but dated and taking effect before that time, and any objection would have been met with the conclusive answer that plaintiff himself was responsible for any irregularity that appeared, and this Court would not have dismissed the writ; citing MeCahill v. Pailway Co., 96 Mich. 156,160,

      [Respondent submitted as matter of law that the action complained of should not be inquired into, as the papers and showing upon which he based said action were not before the Court; that said action was a matter of discretion with him, and that under the circumstances said discretion should not be reviewed in this proceeding. Editor.]
   The facts as established by the answer of the respondent wére:

a — That on March 12, 1894, a verdict for $3,000 was rendered in the Wayne circuit court in favor of Thomas State, administrator of the estate of Josephine State, deceased, and against relator in a personal injury case; that under date of March 28, 1894, an entry appears on the calendar of said court of “Judgment entered” in said ease; that on June 4, 1894, costs were taxed upon stipulation of the attorneys, in which taxation no charge was made in favor of plaintiff for the judgment fee.

b — That the time in which to settle a bill of exceptions was several times extended on motion of the defendant; that on October 10, 1894, a bill of exceptions was settled, signed, and filed in the case; that on February 26,1895, a writ of error, returnable April 6, 1895, was issued; that on September 23, 1895, judgment was duly entered nunc pro tuno as of March 28,1894, there having been no entry of judgment in the journal of the court before that time.

e — That the verdict was a small one for the iniury sustained; that it was right and just that the same should bear interest; that this point was considered when judgment was entered; that plaintiff acted in good faith in the matter and was misled by the said calendar entry, and would have entered judgment himself at date of said entry had he not been misled thereby; that it is not uncommon in the practice of said circuit court that the defeated party pays the judgment fee and enters the judgment against himself.

d — That the defendant delayed to more in the case from the date of the writ of error until December 31, 1895, when the motion to vacate said judgment was made; that about December 4,1895, plaintiff had given notice of a motion to dismiss said writ of error for want of prosecution, no return having been made or assignments of error filed; that said motion was never heard; that defendant’s attorney had, before the making of said motion to vacate said judgment, voluntarily dismissed said writ, not for. the reason that it had been prematurely issued, but that no return had been made or assignments of error filed; that the grounds upon which said motion to dismiss was based were good and valid, and the defendant was guilty of laches in the prosecution of its appeal.

e — That the attorney for the defendant not only knew that plaintiff was about to apply for judgment, but advised him to do so; that on October 1, 1895, plaintiff’s attorney informed defendant’s attorney that said judgment had been entered; that defendant’s attorney took no steps in the matter until more than three months thereafter; that he acquiesced in what had been done; that from said advice and delay and acquiescence he authorized and approved said judgment as it was entered; that it is not the practice in said circuit court for the prevailing party to give notice to the other party when he enters judgment.

/ — That defendant must have known at least as early as October 10, 1894, when the bill of exceptions was settled, that no judgment had been entered; that defendant’s attorney knew on June 4, 1894, .when the costs were taxed that plaintiff made no claim for the judgment fee, and therefore that he had not paid it nor entered judgment himself; that as a matter of fact plaintiff did not know that judgment had not been entered until September 1, 1895, when his attorney was so informed by defendant’s attorney; that there was then some talk of settlement between said attorneys; that plaintiff acted with reasonable diligence, under the circumstances, in entering said judgment.

g — That the petition for mandamus does not set forth the showing made before respondent upon the motion to vacate said judgment.

[Judgment by consent was entered April 6, 1896, with interest from date of original judgment entry. Editor.]

Motion to Modify Order.

A motion to modify the order vacating the judgment so as to allow it to stand as of the date when it was actually-entered was denied. In a per curiam opinion found in 66 N. W. Rep. 667, the Court say:

“The claim is made that unless the order is modified so as to allow it to stand as of the date it was actually entered, plaintiff will lose his interest on the judgment from the date of the verdict to the time of the entry of the judgment. We see no difficulty in the securing of the interest in the entry of a new judgment.”


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    The City of Detroit v. The Board of Auditors of Wayne County.
    Fines and costs — Imposed for violation of city ordinances — Payment of TO COUNTY INSTEAD OF CITY TREASURER - Recovery of by city.
    Relator applied to the Wayne circuit court for mandamus to compel respondent to audit relator’s claim for certain Jnes and costs collected on convictions in the police court of Detroit for the violation of city ordinances, and by mistake of the clerk of said court paid to the treasurer of Wayne county instead of to the eity treasurer of Detroit, as required by the city charter. The application was denied as to the fines which had been distributed as a part of the library fund, and granted as to the costs which had been used in payment of county expenses, which decision was on March 3, 1895, affirmed on certiorari.

      John J. Speed, for relator, contended:
    1. That mandamus is the proper remedy; citing Fennell v. Common Ooimeil of Fay City, 36 Mich. 186.
    2. That under How. Stat. § 8468, the county treasurer is required to keep an account of moneys paid to him on account of fines, penalties, and forfeitures received by him, to credit the same to the library fund, anil account therefor to the board of supervisors at each annual meeting of such board; that by How. Stat. § 8469, ho is required to apportion the moneys belonging to the library fund, and pay the same to the township treasurers; that How. Stat. § 5146, provides for the method of apportioning and distributing the fund' annually; that although said sections provide for payment by the eounty treasurer, the act defining the duties of the respondent prohibits the treasurer of Wayne eounty from paying any moneys, excepting upon warrants drawn by the order of the respondents; citing 3 How. Stat. § 518#.
    3. That the provisions cited contemplate the payment generally into the treasury of the fines, penalties, and forfeitures, the crediting of the same to a county fund, and the reporting of the same to the board of supervisors; that the money received is not paid out as received, but paid into the general treasury, and credited to a fund made up of numerous items from various sources; that it is treated as a county fund, and reported as such; that upon the county is imposed the duty of apportioning the fund, and it is paid out upon warrants drawn, as other county disbursements are made; that the eounty treasurer is not a mere conduit for the moneys received for fines, penalties, and forfeitures as the eounty may be for State taxes collected by the township treasurers; citing, however, Daniels v. Township of Watertown, 55 Mich. 376, where the defendant was held liable for State and county taxes so collected, and the opinion of Mr. Justice ChampUn in Curtis v. liiehlcmcl, 56 Mich. 492.
    4. That wherever the principle of absolving from liability the officer or body through whom money is received and paid is applied, the money received and paid over is treated as the same money received, and there is a liability to the true owner by the party or body who ultimately receives the money through the conduit; that in this case relator could not recover this money from any one of the townships, nor could the share apportioned to it be recovered from any one of the townships to which it may have been paid upon the order of the respondents.
    5. That the county does not receive the fines, penalties, and forfeitures as agent for the townships, and they are in no way responsible for moneys whieh have been wrongfully received and credited to the fund by the county treasurer; that the county of Wayne must be held to have assumed the responsibility of the right to receive when it received these fines and having apportioned them, paid out the money with others of like character.
    6. That under 3 ITow. Stat. § 5186, et seq., tlie respondents had the right to examine the records of tlie police court and as it would be negligence in them not to know the correctness of the returns made to them by the clerk, they must be presumed to have known that these fines and costs were received under city ordinances.
    7. That Walker v. Oonant, 09 Mich. 321, cited by respondents’ attorney, has no application for the reason that the payment to the county was not made by the city of Detroit or by its authority, and if any one was negligent it was the county, which it must be presumed knew, or it ought to have inquired, from what source tlie money came which was paid to it, nor is it a case for the application of Wixson v. Maywood, 33 Mich. 09; that the answer is partly the same that the money was not paid to the county by the city (Wixson), nor was it paid by the city with any understanding that it was to be paid out to any one.
    8. That relator is not estopped by any of its acts or by reason of the payment by the clerk of the police court to tlie county instead- of the city treasurer of said fines and costs.

      Allan M. Frazer, Prosecuting Attorney (Ormimd F. Hunt, of counsel), for respondents, contended:
    1. That there is no equity'in relator’s contention because:
    «- — The money was paid by an officer of the city of Detroit to the county of Wayne.
    6 — The county of Wayne distributed the fines in pursuance of the statute and in good faith to the library board fund.
    c — The relator was sleeping upon its rights, and only made demands after years of negligent performance of its duties by one of its officers.
    d — The library funds are worthy objects, and should be protected, if possible.
    e — The county of Wayne has no money, so far as these fines are concerned, belonging to relator. No contention has ever been made as to the costs, the benefit of which it has received, and is now and always has been willing to refund to relator.
   The facts as established by the petition and answer were:

a — That relator’s charter provides:

“That the clerk of the police court shall receive fines and costs imposed by the court, and shall, within 48 hours after the receipt thereof, pay the same to the county treasurer of the county of Wayne, and take his receipt therefor, except such fines and costs as shall be imposed and received in eases arising under the city ordinances, which shall be paid in like manner and within the same period to the city treasurer of the city of Detroit, and by him credited to the police court fund.”

6 — That How. Stat. § 5146, as amended by Act No. 15, Laws of 1895 (page 96) provides that:

“The clear proceeds of aH fines for any breach of the penal laws of this State and for penalties or upon any recognizance in criminal proceedings, and all equivalents for exemption from military duty when collected in any county, and paid into the county treasury, together with all moneys heretofore collected and paid into said treasury on account of such fines or equivalents, and not already apportioned, shall be apportioned by the county treasurer before the first day of June in each year among the several townships in the county, according to the number of children therein between the ages of 5 and 20 years, as shown by the statement of the Superintendent of Public Instruction provided for in the preceding section, which money shall be exclusively applied to the support of the township and district libraries, and to no other purpose.”

e — That acting under said charter provision the clerk of the police court of Detroit had from day to day since July 5,1892, paid to the treasurer of Wayne county various sums of money as the proceeds of fines and costs to which the said treasurer was entitled under the provision of the charter above cited; that said treasurer, acting under said statutory provision, had each year before tho first day of June apportioned and distributed the amount of all such fines, amounting to $4,416, among the several townships of Wayne county for the support and maintenance of free publie libraries.

d — That prior to the fifth day of October, 1895, it was discovered that the clerk of the police court had, during all of the time stated, paid to the county treasurer not only the fines and costs collected for violations of the general state laws, but also the fines and costs .received for violations of the city ordinances, to which the city treasurer Was of tight entitled, and that the county treasurer had. apportioned and distributed all of the fines so received in manner aforesaid.

e — That the county treasurer had no knowledge or information that any portion of the funds so received were collected for violations of city ordinances, but on the contrary received them in perfect good faith, and distributed them in manner aforesaid.

/ — That the statute makes no provision for the distribution of the costs received by the county treasurer under said statute; that he therefore has the amount of said costs, namely, $9,545.51, on hand or he has paid it out for the general expenses of the county; that the position of the county has not been changed to its disadvantage by such payment, if made, and it is right and equitable that it should be required to pay the same to relator.


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    The Grand Rapids & Indiana Railroad Company v. James B. McMahon, Circuit Judge of Osceola County.
    Special appeal — Overruling of by circuit court — Vacation of order by mandamus.
    Relator applied for mandamus to compel the respondent to vacate an order overruling its special appeal from a justice’s judgment, and enter an order reversing said judgment. An order to show cause was denied March 12, 1896.

      T. J. O’Brien, for relator, contended:
    1.That How. Stat. § § 8024, 8025, being Act No. 165, Laws of 1875, entitled “An act to facilitate the collection of damages for trespass on or other injuries to lands,” provides that in all cases where a party has a right of action for the taking of timber or other trespass to lands, whether direct or consequential, he may waive the tort and bring assumpsit therefor, which suit may be commenced by attachment as in other cases; that this statute is in derogation of the common law, and must be construed strictly in accordance with a familiar general rule, and for the further reason that it extends the remedy by attachment, and the statutory provisions therefor must be strictly construed, and canñot be extended beyond their terms; citing 1 Chaney & Jac. Digest, p. 96, par. 1, and cases cited.
    2. That it is conceded that as to injuries by fire to the soil and trees the plaintiff could waive the tort, and sue in assumpsit, but as to the damages for hay burned and expense incurred in looking after the fire, the tort could not be waived and assumpsit brought, either to recover said items alone or jointly with the others; that the plaintiff has a remedy for his whole demand in an action of trespass on the case.
    3. That if relator is correct in this contention it was not only competent for it to make the point by demurrer to plaintiff’s declaration, but proper and commendable to do so, and the demurrer should have been sustained; that demurrer to part of the demand in one count is proper; citing 1 Chitty, Pi. 696, 697; and the objection should be raised by demurrer instead of waiting to object to the evidence; citing Roxolamd v. Superintendents of the Poor, 49 Mich. 553; Gay v. Insurance Go., 51 Id. 245; Bauman v. jBeom,57?Id. 1; Gevelce v. Railroad Go., 57 Id. 589.
    4. That it must, on the declaration and bill of particulars, be conclusively held that the judgment appealed from included the disputed items; that there was no amendment of the declaration or bill, and the judgment was rendered upon them for the entire demand of $300.
    5. That if relator is sustained in its position that tort could not be waived and assumpsit brought for the items named, the application for mandamus should be granted for the reasons:
    a — That the demurrer was proper.
    ?> — That the justice erred in overruling the demurrer, and rendering judgment for plaintiff’s entire demand.
    c — That the relator having rested on its demurrer, it was proper under How. Stat. § 6999, to take a special appeal; that the affidavit therefor sets forth objections to the process and pleadings and other proceedings which cannot be made on the trial of the general appeal; that no such trial could be had until relator interposed a plea in bar to the declaration; that by so doing it would waive its demurrer and special ground of objection; citing Peterson v. Fowler, 76 Mich. 262.
    d — That while the question could have been raised on the trial of the general appeal under a plea of the general issue by objecting to the evidence, and been reviewed on exceptions and writ of error, it was proper to raise it at the outset, and insist upon it as the relator is doing in this case; that the point is definitely made, and if it is well taken the suit should stop here, rather than be allowed to go to a trial and review upon a writ of error on questions of evidence.
    [For cases bearing upon the proper construction of How. Stat. § § 6999, 7009, which provide for a special appeal from a justice’s judgment, etc., see Stevens v. Harris, 99 Mich. 230, and note. Editor.]
    6. That if this Court hold that the tort could be waived and assumpsit brought for the disputed items, it will be the end of the question in this case; that if the Court hold to the contrary, the relator would seem to be pursuing the proper remedy; citing Foxvler v. Hyland, 48 Mich. 179; Sager v. SImtts, 53 Id. 116; Freer v. White, 91 Id. 74.
    7. That this case is distinguishable from Stevens v. Harris, 99 Mich. 230, where it was held that an objection that the justice erred in holding, against the objection of the defendant, that the plaintiff’s declaration was sufficient in law, cannot be raised by special appeal; that the ground of relator’s objection, as appears from the face of the declaration, goes to the jurisdiction of the justice; that such a case comes within the statute allowing special appeals; that the nature of the objection in Stevens v. Harris does not appear in the report of the case, or whether or not it went to the jurisdiction of the justice; that apparently it did; that it also appears that the objection was withdrawn.
   The facts as shown by the petition for mandamus were:

1. That on October 26, 1895, Isaac F. Kinney sued relator in justice’s court in an action of trespass on the ease upon promises, claiming in the summons $300 damages.

2. That plaintiff in his declaration alleged that fire was spread and communicated from the engine and premises of the relator to the lands of the plaintiff, and burned soil, fences, trees, and grass growing and grass cut, and claimed $300 damages and cost of suit.

3. That plaintiff’s bill of particulars was as follows:

a — Damages to trees.........$ 50.00

¿ — Damages to grass cut and growing.............. 100.00

e — Damages to soil.......... 100.00

d — Damages to fences........ 25.00

e — Expense of looking after fire................... 25.00

$300.00

4. That relator demurred to said declaration as not sufficient in law.

5. That said demurrer was overruled, and judgment rendered for the plaintiff for $300 damages, and costs of suit.

6. That relator took a special appeal from said judgment; that the objections set up as the grounds of such special appeal were:

a — That the form of the action as set forth in the summons and declaration is assumpsit.

& — That the only damages claimed are on account of the destruction of and injury to certain property by fire, and expenses incurred in looking after the fire; that the allegations in the declaration set forth a cause of action for which an action on the case or of trespass on the case would lie.

c — That the case thus set forth is one in which it is not competent to waive the tort and sue in assumpsit.

c^-Thot a considerable part of plaintiff’s demand and of the damages awarded to him is for grass eut and for fences and for the expense of looking after the fire, and for these matters it is not competent to waive the tort and sue in assumpsit.

e — That plaintiff’s demand comprises several distinct items, for part of which at least the tort cannot be waived and assumpsit brought, and it is not competent to join in one action said several classes of items.

7. That on March 3, 1896, the case was heard upon the issue of law joined therein upon said special appeal, and the same was overruled and disallowed, with costs against relator, and relator was given 20 days in which to plead to the declaration.


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    The Chicago & West Michigan Railway Company v. Fred J. Russell, Circuit Judge of the County of Muskegon.
    Costs — Witness pees.
    Relator applied for mandamus to compel the respondent to vacate an order denying the motion of relator for retaxation of plaintiff’s costs in the case of Silas Osborn v. Relator, lately pending in respondent’s court, and for such other order as justice might require. An order to show cause was denied March 12,1895.

      Smith, Nihus, Hoyt é Eruiin, for relator.
   The facts as established by the petition for mandamus were:

a — That in November, 1895, one Silas Osborn commenced a suit by ¡.declaration in the circuit court for the county of Muskegon against relator to recover damages alleged to have been sustained by relator by reason of three certain fires claimed to have originated through the negligence of relator in the operation of its railroad in the county of Muskegon.

6 — That said declaration contained three counts; that in the first count the fire which caused the damage complained of was averred to have occurred on, to wit, July 8, 1895, in the second eount to have occurred on, to wit, July 18, 1895, and in the third count to have occurred on, to wit, July 16, 1895.

c — That on the trial of the ease, after several witnesses had been examined as to the origin of said three fires and the damages alleged to have been eaused thereby, under objection of relator’s attorneys to the first and second counts of the declaration, the plaintiff’sj"attorney, (Arthur Jones) announced that he was willing to have the testimony already given under those counts stricken out; that he would introduce no more testimony under said counts as to the fires of July 8 and 13, 1895, nor ask^for a verdict for damages occasioned thereby, but would ask for a verdict for damages occasioned by the fire of July 16, 1895, only.

d — That under the charge of the court the ease was submitted to the jury upon the theory of the right of the plaintiff to recover damages on account of the fire alleged to have occurred on July 16, 1895; that the jury, under said charge, rendered a verdict in favor of the plaintiff for $200 damages, and judgment was entered thereon for said sum, with costs to be taxed.

e — That since said trial plaintiff has commenced another suit to recover damages claimed to have been sustained by him by reason of said fires of July 8 and 13,1895.

/ — That among the items of costs contained in plaintiff’s bill of costs offered for taxation was one of $6.70 for 6 days attendance and 7 miles travel of a witness who, as shown by the affidavit of tire plaintiff, attended for the time specified for the purpose of giving testimony as to the origin of the fire of July 8,1895; that it further appeared from said affidavit that the attendance of said witness was deemed material and necessary under the state of the pleadings at the time of entering upon the trial of the case; that when the relator objected to evidence under the first eount of the declaration the testimony of said witness was no longer required, and for that reason she was not called as a witness.

g — That said item of costs was taxed against the objection of relator’s attorneys; that it appeared, as shown by plaintiff’s affidavit, that said witness-attended said trial for the sole purpose of giving testimony as to the origin of the fire of July 8, 1895, and that plaintiff did not ask to recover, nor was allowed to recover, for damages caused by said fire; that on appeal from the taxation of said item of costs, the respondent affirmed the action of the clerk in taxing the same.


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    Chester W. Hopkins v. Washington Gardner, Secretary of State.
    Election — Held in April, 1896, not a GENERAL ELECTION.
    Relator applied for mandamus to compel the respondent to give the statutory notice of the election of a circuit judge at tire spring election in 1896. An order to show cause was granted, and at the hearing had March 3, 1896, the application was denied, the Court holding that said election was not a general election.

      Albert Trash, for relator.

      Fred A- Maynan-d, Attorney General, for respondent.
   The facts as established by the petition and answer were:

a — That shortly prior to the September, 1895, term of the circuit court for the county of Saginaw, Robert B. MeKnight, one of the judges of said county, resigned his office; that said resignation was accepted, and a successor appointed by the Governor, who accepted said appointment, and has since then discharged the duties of circuit judge.'

b — That respondent lias been requested to give notice as required by law of the election at the spring election in 189(5 of a circuit judge to fill the vacancy caused by said resignation; that he has refused to do so for the sole reason that said election is not such an one where under the law of this State said vacancy can be legally filled, it not being a general election.


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    The Port Huron Savings Bank v. Eugene M. Carleton et al.
    Writ of error — Dismissal of for want OF PROSECUTION.
    Motion by plaintiff and appellee to dismiss writ of error for want. of prosecution. Granted March 24, 1896, unless the defendants and appellants pay to the plaintiff’s attorneys an attorney fee of $15 forthwith, and consent that the case stand for hearing at the April, 1896, term of Court.

      Atkinson & Wolcott, for motion, contended:
    1. That the rules of the Supreme Court applicable to this motion are:
    a — Rule No. 11, which provides for the filing in the office of the clerk of the Supreme Court of the writ of error, with a return containing a transcript of the record and proceedings in the court below, on or before the return day of the writ.
    b — Rule No. 12, which provides that a party suing out a writ of error shall have ten days after the return day in which to assign errors and serve copies of said assignments.
    e — Rule No. 16, which provides that in ease of a failure to comply with the foregoing rules the appellee may move to dismiss the writ of error for want of prosecution.

      ct — Rule No. 20, which provides that the Court may grant such motion or deny the same on such terms and conditions as the justice of the case may require.
    2. The rules cited have béeh Considered in the following cases:

      a — Lathrop & Hicks, 2 Doug. 223, where Hicks, as indorsee, brought assumpsit against Lathrop, as maker, of a promissory note, but omitted to describe the note in the declaration as containing words of negotiability. Lathrop pleaded the general issue, after which, by stipulation of the parties, the plea was withdrawn, in consideration of an agreement for a stay of execution for a specified time, and judgment was entered against Lathrop for the amount of the note. Lathrop sued out a writ of error, but failed to file the transcript as required by Rule No. 11. He then moved for leave to file said transcript, and, as an excuse for his laches, his attorney made affidavit that at the time of the service of the writ of error on the clerk that officer, or his deputy, in answer to affiant’s request promised to make out and deliver to affiant said transcript within the time required by said rule, and also inform affiant when the transcript was ready; that affiant relied upon said promises, and, until a short time before the making of the motion, supposed that said transcript had been filed.
    In opposition to the motion, the counter affidavit of the attorney for the appellee was read, setting forth the facts above stated relative to the proceedings in the lower court, and also that the deponent was ignorant of the omission from the declaration of said words of negotiability until after the issuance of the writ of error.
    And in denying the motion and granting a counter motion to docket and dismiss the case it was held that no excuse could be much less reasonable than the one offered; that the attorney appears merely to have served the writ of error' upon the clerk, and obtained his promise to make out the transcript promptly, and deliver it to said attorney within the 40 days allowed for filing it, and also to inform him when it was ready; that the promise of the clerk was doubtless made in good faith, and, for anything that appears in the case, he may have made the transcript promptly, but, as the rule did not impose upon him the duty of filing it, the attorney was bound to obtain and file it.
    That were there no other facts in the case, except those which appeared in the affidavit of appellant’s attorney, the Court would be inclined to deny the motion on the ground of the insufficiency of the excuse shown for the neglect to file the transcript; that the Court does not choose to rest its decision on this ground solely, as further facts appear in the counter affidavit of the appellee’s attorney.
    That it was insisted on the hearing that as merits were sworn to in support of the motion, this counter affidavit could not be received; that said counter affidavit does not- deny the merits sworn to; that it expressly admits that there is error in the record; that its purpose is to show such a state of facts as renders it bad faith for the appellant to take advantage of the error; that the affidavit should be received; citing Quinn v. Riley, 3 Johns. 248, where such an affidavit was received for a similar purpose.
    That the further objection to the reading of the counter affidavit, on the ground that no copy had been served on the attorney for the appellant, is untenable; that counter affidavits, in opposition to a motion, may be read without being served; citing Strong v. Planter, 5 Cow. 21; Campbell v. Grove, 2 Johns. Cas. 105.
    That it is well settled that the Court will not relieve a defendant against a default, where he lies by and allows an inquest to be taken, supposing the plaintiff’s proceedings to be irregular; that, in this case, the defect relied upon for the reversal of the judgment does not go to the substantial merits of the action; that after entering into the stipulation withdrawing the plea, and obtaining stay of execution, and, without objection, suffering judgment by default to be rendered against him, it is at least against good faith for the appellant to avail himself of such a defect on error; that upon the whole case the ends of justice will not be promoted by granting appellant’s motion.

      6 — Scott v. Scott, 5 Mich. 106, where a motion was made to reinstate a ease, the writ of error in which had been dismissed on ex parte motion for want of prosecution. The affidavit filed in support of the motion showed that the writ was brought in good faith, and in the belief that the judgment would be reversed; that assignments of error had not been filed for the reason that negotiations for a settlement had been going on between the parties, and that the attorney for appellants had a verbal understanding with the attorney for the appellees that such assignments need not be filed until the latter had notified the former to file them, and that no such notification had been given.
    The motion was opposed on an affidavit of the appellee’s attorney in substance denying the understanding claimed, and stating that before the last term he had notified the attorney for appellants to proceed in the case. Reliance was also placed on Supreme Court Rule No. 6, which requires agreements between attorneys to be in writing, to which claim the attorney for the appellants replied that when, as in said case, there had been a misunderstanding between the parties, it was an ordinary exercise of the power of the court to relieve a party, who had acted in good faith, against the consequences; citing Wager v. Stickle, 3 Paige, 407.

      e — Carne v. Hall, 7 Mich. 159, where a motion for a new trial in a breach of promise case, in which plaintiff had recovered a verdict for $5,000, was granted unless the plaintiff would consent to reduce the damages to $2,000, which she assented to, and a remittitur was entered accordingly; that two days before the expiration of the two years allowed for taking out a writ of error, a writ was issued, and delivered to the elerk, but no return made; that about four months after the return day of the writ a motion was made to dismiss the writ for want of prosecution.
    That to excuse the delay that had occurred, the acting attorney for the appellant made affidavit that no execution had been issued; that the deponent had only taken charge of the case within the last year, and after the removal of the attorney of record to Chicago; that his taking charge of it was in the expectation that said attorney would continue to take an interest in the case; that deponent supposed that said attorney had made arrangements to have return made to the writ; that deponent had had many conversations with one of plaintiff’s attorneys, in which deponent proposed to have the verdict set aside asad a new trial; that said attorney gave deponent to understand that this would be done provided the case should be tried for the defendant by the same counsel as before; that deponent relied upon this or some other arrangement being made, and therefore suffered the matter to remain, expecting reasonable notice if it was desired by the counsel for plaintiff that the ease should be prosecuted in error; that the clerk of the circuit court had, without any authority from said attorney of record, neglected or declined to make such return only because no arrangement had been made to pay him his fees; that deponent had but just learned that fact; that he should have attended to the matter before, but he supposed a return had been made.
    And it was held that the motion should be granted; that the affidavit gave no valid excuse for the delay; that it does not show any interview had with the clerk since the issuing of the writ of error, or that he had ever been requested to make a return; that on the contrary it shows affirmatively that appellant’s counsel had not designed to prosecute the case in error until notified by the opposite side, relying as stated upon some understanding; that the affidavit is evasive, and in the absence of a showing of good excuse for the delay tlio cir'cumstanees do not call for indulgence on other grounds.
    The motion, was granted on payment of $10 costs and the filing and service within 3 days of assignments of error, coupled with an order that the case be placed upon the docket for hearing at'the then present term.

      d — Woodmcmsie v. Hollon, 16 Mich. 379, where a writ of error was sued out January 17,1868, returnable February 18, 1868, but the return was not made until February 21,1868. Notice that the writ had been served upon the clerk of the trial court and a bond duly filed was served on the day the writ issued. It appeared that the attorney for the appellee examined the writ in the clerk’s office before the return day thereof, but that the notice required by Supreme Court Rule No. 10 was not served. On February 19 a motion was made to dismiss the writ, and two days later the return was filed.
    And it was held that inasmuch as the attorney for the appellee had knowledge of the writ and of its contents, he had all the information he would have received from a technical notice; that the filing of the return before the motion was heard would, according to the usual practice, prevent the dismissal of the writ, but inasmuch as notice of the motion was given before the return was filed, costs would be allowed to the moving party.

      Phillips ájenles, contra.

   The facts as shown by the affidavit of Frank T. Wolcott, one of the attorneys for the appellees, filed in support of said motion were:

a — That this is one of the three suits commenced by declaration in the circuit court for St. Clair county upon certain promissory notes given by the defendants and discounted by the plaintiff in the usual course of its banking business.

b — That on January 24, 1895, a judgment was directed in favor of the plaintiff in this suit, and by stipulation judgments were entered in the remaining eases for the amount duo on the note sued upon therein; that said latter cases were to abide the result of this case in the Supreme Court, where it was to be removed by the defendants.

c — 1That upon the trial it appeared in the pleadings that the notes sued upon were given on the purchase of an engine, boiler, and other machinery for a vessel owe ed by the defendants, who sought to recoup damages on account of defective fastening of the boiler, and consequent injuries suffered by them or their vessel.

d — That on May 14, 1895, a bill of exceptions was settled and filed in this case, after which a bond was filed to stay execution; that on January 8, 1896, deponents firm received notice of the issuance of a writ of error in the ease, returnable February 15, 1896; that said writ was not returned and filed until February 26, 1896, and no assignments of error have been filed or copy served.

An affidavit in opposition to said motion made by P. H. Phillips, one of appellant’s attorneys, was filed, in which it was averred:

a — That immediately after' the attorneys for the plaint!if had indorsed upon the bill of exceptions in this ease their consent to its being signed as proposed, it was handed to the circuit judge for signing; that he informed the deponent that he would axamine the bill, and if he found any changes necessary would notify deponent, and, if not, would sign and file it with the clerk.

b — That soon afterwards negotiations for a settlement of the judgment were opened between one of the attorneys for the appellants and one of the defendants; that such negotiations were had with the knowledge of plaintiff’s cashier and of its attorneys; that said negotiations continued up to about March 5, 1896; that a few days subsequent to said date deponent received a letter from said defendant, announcing the impossibility of reaching a settlement, whereupon deponent handed the record in the case to the printers, in whose hands it now is, and is being printed for the hearing in this case.

c — That the delay in making return to said writ occurred as follows: Sometime after the delivery of the bill of exceptions to the circuit judge he filed the same with the county clerk, but through inadvertence failed to sign the bill; that deponent was ignorant of this fact until the return day of said writ, at which time the circuit judge was absent from Port Huron, where his court was held; that as soon thereafter as was possible deponent, in open court and in the presence of plaintiff’s attorneys, called the attention of the circuit judge to said omission, whereupon he, with the knowledge and consent of said attorneys, signed said bill, and the writ of' error was immediately returned, with the required transcript to the Supreme Court.

ci — 1That there is no intention on the part of the appellants to delay the collection of said judgment; that the delay which has occurred since the settlement of the bill of exceptions has been occasioned by said negotiations for a settlement; that at no time has there been any effort made on the pqrt of the attorneys for the plaintiff to have the case pushed to an early hearing in the Supreme Court.

e — That since the service of this motion, deponent has caused to be served on the attorneys for the plaintiff and to be filed in this Court the assignments of error; that the failure to serve same was a mere oversight, and that deponent supposed the same had been done.

/ — That the principal defendant, who has had charge of this ease, lives in Cleveland, Ohio; that since the service of this motion deponent has been unable, by reason of the absence from home of said defendant, to obtain an affidavit from him in connection herewith; that if said writ of error is dismissed, said defendants will be deprived of a review of the case, and great and irreparable injury will be done to them.


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    In the Matter of William H. Moyer.
    Affidavit to hold to bail — Release of DEFENDANT ON HABEAS CORPUS BECAUSE OF INSUFFICIENCY OF — CERTIORARI TO REVIEW ORDER DISMISSING WRIT.
    Petition of William H. Moyer for writ of certiorari to review habeas corpus proceedings instituted to secure his release from arrest under a capias ad respondendum issued at the suit of Samuel 1. Johns from the circuit court of Grand Traverse county. Writ denied Marché, 1896.

      Charles G. Turner, for petitioner,
    contended that the circuit court erred in dismissing the habeas corpus proceeding, and in holding the affidavit to hold to bail sufficient for the reasons:
    1. That said affidavit fails to set forth in detail the facts and circumstances essential as a basis for the issuance of the writ of capias.

    2. That said affidavit sets out conclusions and inferences from facts not within the personal knowledge-of the affiant.
    3. That .the falsity of the representations alleged to have been made by the petitioner does not appear in said affidavit, and the statements respecting the falsity of said representations are too indefinite to possess the quality of legal proof.
    4. That said affidavit does not state such a case as is required by the statute and as in the law tends to make out a case in all its parts.
    5. That the affidavit fails to show that the debt was due or that the petitioner had ever refused to pay over any money in his hands belonging to the plaintiff.
   The facts as set forth in the affidavit for certiorari were:

1. That on February 18,1896, the petitioner was arrested upon a capias ad respondendum issued at the suit of Samuel L. Johns from the circuit court for Grand Traverse county; that in the affidavit to hold to bail, made by Fred L. Farlee, it was averred:

a — That the affiant was the agent of the plaintiff, who was a non-resident cigar manufacturer, and made said affidavit in his behalf.

b — That the petitioner, who was at the time engaged in the cigar trade at Traverse City, Michigan, applied to the plaintiff to purchase, upon credit, a bill of goods; that for the purpose of apprising plaintiff of his financial circumstances and procuring said goods the petitioner wrote a letter to plaintiff, in which he stated that he had $2,150 with which to do business; that in addition to this he had $1,000 which he had borrowed from a Mr. Williams, who held his plain promissory note, bearing interest at six per cent.; that besides this he owed two or three small bills amounting to about $350; that if his statement was satisfactory plaintiff should at once ship the goods, and if not he should cancel the order, and wire the petitioner to that effect at his expense.

c — That affiant and plaintiff believing such statements to be true, accepted said order, and sold to the petitioner, on credit, cigars of the value of $1,159.90, which the said plaintiff, inspired by a like belief, delivered to petitioner.

cl — That said statements wore false in every particular, and were made with the intent to cheat and defraud plaintiff out of said bill of cigars; that the petitioner was at the time insolvent; that the petitioner know that he did not have $2,150 in cash; knew that he was not indebted to said Williams in the sum of $1,000 for borrowed money to put into petitioner’s business; knew at tho time he purchased said goods that he could not pay for the same, nor did he intend to pay for the same, but knew that his intention was to cheat and defraud tho said plaintiff out of said goods.

e — That the petitioner, after receiving-said goods, stated to affiant that on the night of February 5,1890, he was robbed by two men, who entered his store, of $4,700 then in said store and $70 then in petitioner’s pocket; that the possession of the money was secured by means of threats against the life of the petitioner; that he was bound and gagged by said men, and left in the store until the next morning.

/ — That said store is upon one of the most public streets in Traverse City; that a police officer passes it every fiftoen minutes; that at the hour when the robbery was claimed to have taken place it could not have been done without some officer seeing petitioner, who, according to his statement, was sitting at a table in said store; that the story of the petitioner was wholly false; that tho same was planned by the petitioner and others before the delivery to him of said goods, and before credit had been extended to him therefor; that it was told for the purpose of misleading the said plaintiff and defrauding and cheating him out of his goods and money; that ' shortly after the making of said statements the petitioner stated to affiant that he suffered great pain and agony during the night of the robbery; that to others he stated that he suffered greatly from cold, and to others he stated that ho was drugged and suffered intensely in several ways.

g — That during the time he was engaged in business in Traverse City the petitioner kept no account with any bank in said city; that he commenced doing business in said city in October, 1895, and on February 1, 1896, instructed plaintiff to draw on him -through a bank in said city for the amount of his said bill, less two per cent, discount.

h — That shortly after the alleged robbery the petitioner chattel mortgaged his stock and book accounts to said ■Williams and to Martin & Bunty, and also gave them a bill of sale of said property, all lor the purpose of cheating and defrauding said plaintiff out of his goods and the money due him from petitioner.

2. That petitioner was committed to jail in default of bail; that the return day of said capias is April 9, 1896, and too lato for the April, 1896, term of court; that the next term of court commences on June 2-2,1896.

3. That on February 19, 1896, the petitioner applied to the judge of said circuit court for a writ of habeas corpus; that said writ was granted; that, on February 21, 1896, a hearing was had, and said writ was dismissed, said circuit judge holding said affidavit to hold to bail sufficient, and petitioner was remanded to the custody of the sheriff at the county jail.

[The objections urged against the affidavit were substantially those set forth in the contention of the attorneys for petitioners. On February 25, 1896, the petitioner applied to the Supreme Court for a writ of habeas corpus upon substantially the same grounds upon which this application is based, and the writ was denied. He then instituted this proceeding. Editor.]


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    Henry A. Krolik et al. v. A. C. Maxwell, Circuit Judge of Bay County.
    Injunction — At suit of attaching cred-3 TORS — To RESTRAIN' FORECLOSURE OF CHATTEL MORTGAGES ON ATTACHED PROPERTY.
    Relators applied for mandamus to compel the respondent to dissolve an injunction issued at the suit of an attaching creditor to restrain the foreclosure of certain chattel mortgages held by the defendants on the attached property, the amount of which had been] tendered by the complainant to defendants and an assignment of the mortgages demanded. An order to show cause was granted, and on the hearing had June 30, 1896, on petition and answer a writ of mandamus was issued.

      Sloman, Grosbeak <£ Robinson, for relators, contended:
    1. That courts of equity will not grant an injunction in aid of an attachment of personalty; citing Rollins v. Van Baalen, 56 Mich. 610, 615; nor in aid of a levy by execution upon personalty; citing Stoddard v. McLane, 56 Mich. 11; nor to restrain the collection of a tax upon personalty where complainant has an adequate remedy at law, even though fraud is charged on the part of supervis- or in making the assessment; citing llagenbuch v. Howard, 34 Mich. 1.
    2. That the injunction if retained will operate to restrain the replevin proceedings, and will amount to an interference by the circuit court of Bay county with the process of the Sanilac circuit court; citing JBarnum Wire & Iron Works v. Speed, 59 Mich. 272.
    3. That complainant’s attachment lien will be fully protected in the replevin suit; that she has a complete and adequate remedy at law, but the relators are entirely without protection on account of the injunction.
    4. That the defendant in the attachment suit is not made a party defendant; that while the bill alleges that he is irresponsible it does not allege that the defendants are, and the answer shows them to be fully responsible.
    5. That the answer completely meets the equity of the bill, and sets forth facts and circumstances which support the claim that if the facts as they exist had been fairly alleged the injunction, would not have been granted.

      Frank 8. Pratt (J. W, McMath, of counsel), for respondent, contended:
    1. That all of the substantial allegations in the bill are either admitted or not denied by the answer.
    2. That the answer sets up as new matter and in avoidance of the case made in the bill the seizure by relators under a writ of replevin of the attached property, the knowledge of complainant of that fact when she filed her bill, and that the injunction was really issued to restrain a suit at law; that all knowledge on the part of complainant of the issuance of said writ of replevin is denied by the affidavits attached to the answer of the respondent to the order to show cause why the mandamus should not be issued; that the answer of defendant does not aver that any demand of possession was made before the issuance of said writ of replevin, nor does it show that the writ was sued out by relators as the owners of the two chattel mortgages to obtain possession of the goods as such owners; that relators had no right of possession by virtue of their interest in the trust mortgage, even assuming it to be valid.
    3. That all of the averments of new matter in the answer were irrelevant, and could not be read in evidence on the motion to dissolve; citing Hill. Inj. p. 100, and eases cited; that a replication had been filed; that such new matter may or may not be proved at the hearing; that the answer itself is not evidence, nor can the truth of such averments be determined conclusively on affidavits; that the attachment was made on the presumption that the two chattel mortgages were valid prior liens, but that the trust mortgage was wholly void; that the bill was filed on the same theory; that this does no injury to relators.
    That the answer of the defendants, to further show bad faith on the part of complainant in filing her bill, sets up that when Lena Shulman assigned her claim under the trust mortgage to complainant, complainant knew of the former assignment of said mortgage to relators, and agreed to dismiss the attachment suit; that all of these charges are denied and explained by the affidavits attached to respondent’s answer which show that no such assignment and agreement were perfected or acted upon; that the arrangement of complainant to take said assignment was in no way a recognition of the validity of the trust mortgage by which it purported to be secured nor would it have been had the arrangement been completed and acted upon.
    5. That it appeared to the court on the hearing of the motion to dissolve that if the injunction was not held until the hearing the complainant could not obtain the relief sought by her even if all of the new matters set forth in the answer by way of avoidance should thereafter be shown to be wholly false; that no decree whieh the court could make could give complainant the relief prayed for because there would then be no chattel mortgages in existence, but the same would have been foreclosed; that it was therefore for this reason alone quite proper and clearly within the discretion of the respondent to deny the motion to dissolve.
    6. That the respondent did not err in considering said affidavits for the purpose mentioned in his answer and hereinbefore set forth; that being .thus before him the affidavits were as good evidence for any purpose as were the irrelevant matters in avoidance set up in the answer.
    7. That relators were entitled to the money due on their two chattel mortgages, but declined to receive it, and insisted on the possession of the goods covered by said mortgages, and brought replevin for the same the day after their money was tendered to them; that this they could not do, for the title to the mortgages in equity had passed to complainant; that relators had no right to the possession of the property on any other claimfso far as appears; that if the interest of relators under the trust mortgage is or shall be in any way injured by the attachment proceedings they have an ample remedy at law.
    8. That in support of his decision refusing to dissolve the injunction respondent relied upon the following propositions and authorities:
    a — An execution or attachment creditor upon payment of a prior chattel mortgage is entitled to be subrogated to the rights of the mortgagee; citing Lucking v. Wesson, 25 Mich. 443; Shutes v. Woodard, 57 Id. 213-215; Warner v. Littlefield, 89 Id. 329, 340.
    5 — An injunction will not be dissolved on an answer admitting the equity of the bill, and setting up new matter as a defense; citing Attorney General v. Bank, Walk. Ch. 90; Hill. Inj. p. 100, see. 55, and eases cited.
    e — The new matters set up in the answer in avoidance of the case made in the bill, could not be read as evidence Oil the motion to dissolve the injunction; citing Schwarz v. Wendell, Walk. Ch. 267, 296; Van Dyke v. Dcwis, 2 Mich. 145; Hunt v. Thom, Id. 213; Hart v. Carpenter, 36 Id. 402.
   The facts as set forth in the petition and answer were:

1. That on May 16,1896, one Mary B. Miller filed a bill in the circuit court for Bay county in chancery, in which she alleged:

a — That on April 23, 1896, a writ of attachment was issued at the suit of complainant out from the circuit court of Sanilac county, and levied upon the stock of goods of one Isaac Shulman of the same county; that said levy was made subjeet to the lien of two chattel mortgages then owned and held by relators as assignees; that said attached property was appraised at the sum of $3,500; that on May 13, 1896, complainant tendered to relators the amount owing and unpaid on said mortgages, and demanded an assignment of the same; that relators refused to receive the money or to execute the assignment, whereupon complainant informed relators that the money would be kept on hand ready to be paid to them on receipt of said assignment. ,

6 — That it would be several months before complainant, in due course of law, could obtain a judgment on her. claim against Shulman and bring said goods to a sale under an execution issued thereon; that in the mean time, as she had reason to believe and fear, and did verily believe, the relators would take said goods from the possession of the sheriff under said chattel mortgages, and proceed to foreclose the same; that said goods would in a few days be brought to sale under said foreclosure; that, if so, complainant might and doubtless would be compelled, in order to protect her said lien, to bid off said goods for a larger sum/than that due on the mortgages; that complainant had reason to believe and fear and did believe and fear that relators might sell and assign said mortgages to some other person, who would proceed to foreclose the same; that should this be done complainant would be in danger of ¡¡loss and damage, and otherwise be put to great expense; that relators had threatened to proceed to such foreclosure, and complainant believed they would do so unless restrained by the court.

That complainant in said bill prayed:

a — That relators might show cause why complainant should not, on paying to them the'amount due and unpaid on said chattel mortgages, be decreed to have from them a full assignment of said mortgages, together with the possession of the same and of the accompanying notes, and be in all things subrogated to their rights thereunder.

6 — That relators might be enjoined from taking possession of or. intermeddling with said goods, and from foreclosing or attempting to foreclose said mortgages, and from selling, assigning, or in any way disposing of the same, all until the further order of the court.

2. That on May 16, 1896, an injunction was issued as prayed, and served upon relators, who were the sole defendants in said bill.

3. That in their answer to said bill relators admitted the issuance and levy of said writ of attachment, the execution and assignment to them of said chattel mortgages, and the priority of their lien thereunder to the attachment lien; that relators left complainant to her proofs as to the appraisal of the attached property and the amount of such appraisal; also as to the existence of the indebtedness to collect which the writ of attachment was issued; that they denied that by reason of said levy complainant obtained and then held a valid lien, subjeet to relators’ chattel: mortgages, on the mortgaged property; that they neither admitted nor denied the insolvency of the mortgagor as alleged in said bill, but averred that however this might be relators were people of large financial means, which fact afforded ample protection to ■ complainant against any loss or damages in the premises; that they denied the right of complainant to tender or pay to them the amount of. the two chattel mortgages, and be subrogated to their rights thereunder, for the reasons set forth in their answer; that they denied that any such tender as the law requires had been made, or under such circumstances as imposed upon them the duty of accepting the pretended tender.

[A copy of said trust mortgage was attached to and made a part of said answer, from which it appears that said mortgage was in the usual form, and as to form and substance conformed to the decisions involving the validity of such trust securities; that it contained the usual insecurity clause, and authorized the mortgagee, on default of payment of the mortgage debt, which was all to become due in case of a failure for two days after the maturity and demand for payment of any sum secured by said mortgage, to take possession of the mortgaged property, "and sell the same, either at public or private sale; that in case of a sale the mortgagee was, after paying the expenses incident to the performance of her trust, and herself a reasonable compensation for her services, to pay from the residue two preferred claims specified in said mortgage, and then pay the remaining claims secured by the mortgage in full, or if the remaining moneys were insufficient for that purpose to pay said claims pro rata, and if any surplus remained it was to be returned to the mortagor or his assigns or representatives. Editor.]

That relators, for further answer to said bill, averred:

« — That prior to the issuance of said writ of attachment, and subsequent to the making of the two chattel mortgages, the mortgagor executed a third mortgage for $7,000 upon the same property to Lena Shulman in trust for herself and his other creditors, including relators and complainant, whose claims, as listed in said mortgage, were $502 and $2,110, -respectively; that relators accepted said mortgage as a valid security to them respectively for said claims.

b — That after giving said trust mortgage the mortgagor, for the purpose of continuing his business, desired of relators further advances and the assumption by them of a debt due from the mortgagor; that for the purpose of inducing relators to make said advances and assume said debt, and to further secure their claim already secured by said trust mortgage, and shortly after its execution, and nine weeks“before the levy of said attachment, the said Lena Shulman assigned to relators her claim of $3,987.-50 secured under said trust mortgage, together with her right, title, and interest in said mortgage, all of which facts were well known to complainant at or about the time of the making of said assignment; that the amount due relators on account of such advances is $520.04, and on account of said debt $142.50.

o — That since tho making of said assignment the complainant, for the purpose of obtaining for herself the benefit of any sum due said Lena Shulman in excess of the claims of relators, had procured from her an assignment of her interest in said trust mortgage, a copy of which assignment was set forth in the answer; that said assignment was made in pursuance of an agreement between complainant and Isaac Shulman for the discharge, in consideration of certain payments to be made by said Shulman to said complainant, of said attachment suit.

A — That on May 14,1896, and prior to the filing of complainant’s bill, relators replevied said attached property from the sheriff of Sanilae county, who held the same under said attachment; that within the time required by law relators delivered to the coroner of said county a bond with sufficient sureties in the sum of $10,000; that said coroner, by reason of said injunction, has refused and still refuses to deliver to relators said goods and chattels.

e — That complainant had knowledge when she filed her bill that relators had taken out said writ of repleyin, and were about to come into possession of said property; that, as relators are informed and believe, complainant refrained from alleging said facts in her bill so as to avoid the necessity of giving a bond to protect relators in the premises.

[Said affidavits, in effect, denied all knowledge on the part of complainant or her agents at the time she agreed to discontinue the attachment suit of the assignment by Lona-Slrulman to relators of her interest in said trust mortgage, and averred that the principal inducement for said agreement was the assignment to complainant by said Lena Shulman of her interest in said trust mortgage; that said Isaac Shulman though present failed to inform complainant of the prior assignment to relators; that when complainant discovered the same she declined to dismiss said attachment suit; that at the time she filed her bill, complainant had no knowledge of the commencement of said replevin suit, Editor.]

/ — That a large proportion of the mortgaged goods consists of perishable articles, such as butter, eggs, produce, and other goods of like kind, which, by reason of being tied up by injunction, have already in part become spoiled, and will no doubt, before a motion for the dissolution of said injunction can be heard, be rendered nearly worthless.

g — That relators are informed and believe, and so charge the fact to be, that complainant is a person of little financial responsibility.

7& — That the policies of insurance upon said goods have, by reason of the bringing of said several suits, been rendered void; that relators, by reason of the premises, are liable to lose their entire security, and suffer several thousand dollars damages.

i — That relators have never refused any valid tender by complainant of the amount of the two chattel mortgages so assigned to them as aforesaid; that they purchased said .mortgages to protect their rights under the trust mortgage, and are entitled, not only to the amount due them on said assigned mortgages, but also on said trust mortgage, which latter sum relators have not offered to pay, but purposely refused so to do or any part thereof.

4. That respondent in his answer denied that the motion to dissolve the injunction was heard by him solely upon said bill and answer, but averred that leave was granted to complainant to file affidavits, copies of which were attached to said answer, denying such portions of defendants’ answer as contained new matter by way of avoidance.


text:
    Martin Butzel et al. v. Victor H. Lane, Circuit Judge of Lenawee County.
    Garnishment Proceedings — Dismissal OFFOR LACHES IN BRINGING THE STATUTORY ISSUE TO TRIAL.
    Relators applied for mandamus to compel the respondent to vacate orders dismissing, on the motion of the garnishees, certain garnishment proceedings instituted against them, because of the laches of relators in bringing the statutory issues to trial. An order to show cause was granted, and on the hearing had October 13,1896, on petition and answer a writ of mandamus was denied. .

      John E. Bird (Sloman, Groesbeek <& Robinson, of counsel), for relators, contended:
    1. That upon the facts as alleged by relators, and under the decisions of the Court, respondent was not warranted in dismissing the garnishment proceedings, and allowing the garnishee defendants $50 as costs in each ease.
    2. That How. Stat. § 8070, provides that:
    “If the plaintiff obtain judgment against the principal defendant in the circuit court, and the latter does not, within two days thereafter, serve upon the garnishee notice of motion for new trial, or of his intention to remove the cause to the Supreme Court, the statutory issue shall stand for trial at the term of the court, on the docket containing the suit in the order of formation of such issue: Provided that in case the suit be on the court docket, and a jury be demanded by the garnishee, the court shall appoint a day for the jury trial of such cases, unless the jury be dismissed, and in that event the case shall stand on the jury docket of the next term: Provided further, that continuances may be applied for and granted, as in ordinary cases, and that the plaintiff shall cause the clerk to place the case on the docket in its proper position, and shall give notice thereof in writing to the garnishee at the same time.”
    That if this provision is mandatory, it follows that, unless it is strictly complied with, the garnishee suit will be dismissed unless noticed for hearing, as therein provided, at the same or the succeeding term.
    3. That there has been as yet no case which holds litigants to a strict adherence to these provisions; that the strongest case cited by the garnishees on the hearing below was Blake v. Hubbard, 45 Mich. 1; that the trend of the later decisions indicates a purpose on the part of the court to retain the garnishee proceedings, unless the delay is characterized by a spirit of neglect bordering on wantonness; citing Webber v. Bolte, 51 Mich. 113; Kiely v. Bertrand, 67 Id. 332; Meigs v. Weller, 90 Id. 629; duett v. Rosenthal, 100 Id. 193; that there can be no doubt but that the grounds set up in the affidavits of the relators would have supported a motion for a continuance of the garnishee case.
    4. That the statute intends that the garnishee proceedings shall not be unnecessarily delayed, because they .tie up and harrass the garnishee, when, as a matter of law, he is entitled to an early hearing; that it cannot be claimed that the garnishees in these cases have been tied up; that they, on the hearing of the motion to extend the time in which to file a demand for a statutory issue, stated that they were not ready for trial; that they would not, and did not wish to go to trial; that they were standing up for their legal rights.
    5. That relators are in no way responsible for any delay that may have occurred, but, on the contrary, have been anxious for a trial; that if any fault is shown it is chargeable to the relators’ counsel, for which relators are not to blame; that it would work great injustice to relators if the garnishee proceedings must be dismissed, when the only ground for such dismissal is the claimed delay in bringing the same to trial, in the face of the admission of the attorneys for the garnishees that they did not wish to go to trial, and were not prepared for trial.

      Watts, Beam & Smith, for respondent, contended:
    1. That there is nothing in the statute or in the decisions of this Court tending to indicate that the dismissal or refusal to dismiss garnishment proceedings is, in any sense, within the discretion of the court; that in every case in which the question has been raised it has been held that a failure on the part of the plaintiff to comply with the statute as to bringing the statutory issue to trial, entitled the garnishee to a dismissal of the garnishment proceedings unless he had waived such right; and in every case in which such dismissal has been denied this Court has based its action upon the ground of such waiver; that if such right has been waived, the exercise of a discretion to dismiss by the lower court will be reversed, as in Webber v. Jiolte, 51 Mich. 113.
    [Under How. Stat. § 8068, the relators had ten days after the filing of the answers to said interrogatories in which to file said demands. Editor.]
    [Act No. 178, Laws of 1895, approved May 21,1895, and not taking immediate effect, amends How. Stat. § 8068, by adding to the proviso to said original section, — that if the plaintiff or garnishee defendant shall within ten days after the filing of the disclosure, answer to interrogatories, or statement made by the garnishee on Ms personal examination, file with the clerk of the court a demand, for trial of the cause, it shall stand for trial in the manner provided by the act of which said section forms a part, — a provision authorizing the court upon application and showing to extend the time' for filing such demand, and made said amendment applicable to pending proceedings as well as to those thereafter begun. Editor.]

      2. That the case of Meigs v. Weller, 90 Mich. 029, in no sense indicates a different rule; that, on the contrary, it wag alleged and admitted, or at least not denied, which amounts to an admission, that the garnishee had consented to a delay, hence the dismissal of the proceeding would have been error.
    3. That the claim that it was held in duett v. Rosenthal, 100 Mich. 193, that either party might notice tho statutory issue for trial is untenable; that it was said in that ease “that the garnishee defendant waived his right to have the case tried at the term at which judgment was rendered against the principal defendants by noticing the case for a subsequent term,-and in that term consented that the case be continued; that having waived the statutory right, the ease must thereafter proceed as other issues of fact, subject to notice by either party.”
   The facts as established by the answer of the respondent were:

1. That on November 11, 1893, at the suit of the relators three writs of garnishment were sued out of the circuit court for Lenawee county, to each of which, on November 25, 1893, the garnishees therein named filed a disclosure, in which they denied all liability to the principal defendant; that on December 13,1893, demands for the examination of said garnishees before respondent on December 23,1893, were made, and notice thereof given; that by consent of all parties said examinations were continued from time to time until October 10, 1894, .when said garnishees appeared for examination, but, the court stenographer being absent, it was agreed that said examinations should be dispensed with, and that relators should have 30 days in which to file interrogatories, to be answered by the garnishees; that on November 12, 1894, said interrogatories were filed and copies served; that on November 23, 1894, the answers of said garnishees thereto were filed with the clerk of said court.

2. That, as appears by the records in the eases, no further steps were taken therein until February 18,' 1895, when relators, by their attorneys, filed a demand in each case for the trial of the statutory issue framed therein; that on March 20,1895, the attorney for the garnishee defendants entered a motion to strike from the files said demands for trial on the ground that they were not filed within the time allowed by law.

That on or about May 1, 1895, said motion, as also a counter motion for an extention of time in which to file said demands, came on for hearing; that counsel for the garnishees contended that the court had no power under the statute to grant said counter motion, whereupon, at the request of Mr. Sloman, of counsel for relators, the argument of the motion was postponed until July 5, 1895, to enable him to examine the question and cite authorities; that on the adjourned .day it appeared to respondent, from statements made by counsel for relators, that an act had been passed by the Legislature of 1895 relative to the matter; that respondent, not being fully advised as to the terms of said act, the decision of said motion was held open, but the trial of said causes was in no manner continued until tho next term of court, or any other term; that on July 5,1895, judgment for $1,746.08 was rendered in behalf of relators and against the principal defendants; that on August 12, 1895, respondent passed upon said motion, and made an order extending the time in each of said eases in which relators might file a demand for the trial of the statutory issue framed therein; that on August 14, 1895, said demands were filed.

3. That so far as the records show, and so far as the respondent has any knowledge, no further steps were taken in said causes until the same were noticed for hearing by counsel for relators at the April, 1896, term of court; that on April 22, 1896, and before the commencement of said April term, counsel for the garnishee defendants entered a motion to dismiss the garnishment proceedings on the following grounds:

a — That plaintiffs had neglected to prosecute the same within a reasonable time after rendition of judgment against the principal defendant.

& — 1That plaintiffs had failed to notice the same for hearing and bring the same on for hearing at the next term of court after said judgment was rendered.

g — That plaintiffs' had permitted two full terms and a large part of a third term of court to pass after rendition of said judgment without so noticing said causes, and bringing the same on for trial.

That said motion was based upon the affidavit of Seth Bean, one of the attorneys for the garnishees, in which he averred:

a — That on July 5, 1895, a judgment for $1,746.08, in favor of relators, and against the principal defendants, was rendered; that on July 25, 1895, costs were taken in plaintiff’s favor at the sum of $57.60; that such further steps were taxed as, on August 14, 1895, resulted in statutory issues by the filing by said plaintiffs of demands for a trial of said issues thereby made, said garnishees having prior to that time filed tfceif disclosures and answers to the interrogatories propounded to them by plaintiffs.

5 — That since the filing of said demands three full terms of court had passed, at neither of which did said plaintiffs notice said issues for trial, nor were said issues upon the • calendar of said court at either of said terms.

4. That the hearing of said motion was, at the request of relators’ attorneys, continued from day to day until June 13, 1896, when it was heard; that upon said hearing the court permitted the garnishees to file, for use on said hearing, the affidavits of Henry G. Smith and Seth Bean, two of their attorneys, in which it was averred:

a — That affiants, as also Adolph Sloman and John E. Bird, two of relators’ attorneys, were present during the entire argument of the motions to strike from the files plaintiffs’ demands for a trial of said statutory issues, and for an extention of time in which to file the same, and that R. A. Watts, who, with affiants were the attorneys for said garnishees, was present a part of the time; that while said Sloman, during his argument, may have said that relators were ready and anxious to try said issues, it was a matter of argument addressed to the court, and affiants were not called upon to answer it, and did not answer it in any way whatever.

6 — That said statutory issues were not at that time docketed; that they were not in a condition for trial, no legal demand for siieli trial having been filed, as was contended by affiants, and practically conceded by the attorneys for relators; that at the conclusion of the argument the court withheld his decision; that at that time nothing was said about continuing said issues for trial, nor were the same continued, nor was there any understanding upon the part of the court or of counsel that said issues should be continued for trial; that there was nothing to continue, as said issues were in no shape docketed or in a condition to be docketed; that it was not then determined by the court whether or not there was to be a trial thereof,

e — That the jury work of the term had been completed, except that the jury were to be called back to try two or three special cases; that when the order extending the time in which plaintiffs might file said demands for a trial of said statutory issues was made, which was on August 12, 1895, the jury had been discharged, and there was no opportunity to try the same.

d — That there was ample opportunity to try said issues at the October, 1895, term of court had counsel so desired; that it was not a crowded term; that all of said term was not fully occupied with the trial of causes; that neither the court nor jury were fully occupied during the December, 1895, term of court, and had said issues been on the docket for trial there wold have been ample time in which to have tried the same.

5. That R. A. Watts, one of the attor.neys for the garnishees, during his argument in support of the motion to dismiss, stated to respondent in substance that his clients did not wish to go to trial; that they were standing on their legal rights, which respondent interpreted at the time as meaning that the garnishees objected to trying said issues, not because they were not ready, but because under the law they were not compelled to try them at all at any time; that respondent at that time, finding that relators had been guilty of such negligence and omission to comply with the law as warranted and enforced the dismissal of said garnishment proceedings ordered each of them to be dismissed, and made such order in regard to the eosts-therein as lie deemed to be reasonable and proper under the circumstances, he being fully advised as to the services performed by the counsel for the garnishees.

6. That the court was unable to find that counsel for said garnishees had at any time or in. any manner waived any of the legal requirements of the statute, and did find that counsel for plaintiffs had negligently omitted to comply with the statute requiring plaintiffs to bring said issues to a speedy trial.

7. That whether or not there was ample opportunity to have tried said issues at either of the intervening terms of court if the same had been docketed and a trial asked for by relators, respondent is unable to find, not feeling that the affidavits upon that question are sufficiently specific to furnish a foundation for such finding.

Note.

Annexed to the petition for mandamus were certain affidavits used on the hearing of and in opposition to the motion to dismiss the garnishment proceedings, the substance of which, in order to a more perfect understanding of the matter, is hereinafter set forth, namely:

1. On May 5, 1896, Adolph Sloman, one of relators’ attorneys, made an affidavit in which he averred:

a — That affiant, and John Bird, as associate counsel, had had the charge of said garnishment proceedings from their commencement.

& — That in the course of affiants argument on the hearing of the motion to strike from the files relators’ demands for a trial of the statutory issues framed in said eases, and of the counter motion for an extention of time in which to file demands for the trial of said issues, which motions were heard together, affiant announced to the court and to opposing counsel that relators were ready to proceed at once to the trial of said issues; that affiant then and there produced a copy of an amendment to the garnishee statute, the passage of which he had procured, giving the court power to extend the time in which to file a demand for the trial of the statutory issue framed in a garnishee suit, the acts of the Legisla.ture of 1895 not having been printed.

c — That upon the close of said argument the court announced that the ex-tention of time asked for would be granted, but that the formal order therefor would not be entered until a certified copy of said amendment had been shown to the court; that thereupon affiant announced that relators were ready to proceed to the trial of said issues if the garnishees were ready; that Bean and Smith, two of the attorneys for said garnishees, then and there in open court stated that they wore not ready to proceed with said trials at that term of court; that thereupon said .eases were considered by the court and the respective counsel as continued for that term, but[by some oversight no formal entry of record of sueli continuances was made; that on or about August 10, 1895, affiant procured a certified copy of said amendment, and caused the same to be'delivered to respondent, who on August 12, 1895, caused to be entered in each of said cases an order extending the time for filing such demands for trial; that in order to avoid any technical objection affiant on August 14, 1895, filed another formal demand for the trial of said issues.

b — That affiant had beenjidvised that the October, 1895, term of court extended over a period of four weeks, throe of which were taken up with the trial of criminal cases, and the remaining week with the trial of two civil cases, which were entitled to precedence even had said garnishee cases been on the docket; that during the December, 1895, term of court, an adjournment of two weeks was had; that but a small number of the civil cases were disposed of, as appeared by the records of the court, to which reference was had for a more correct statement thereof.

That affiant was advised by Mr. Bird, prior to the February, 1896, term of court, that it was not likely that said garnishee cases would be reached for trial even if placed on the docket for that term; that affiant relied upon such advice, and did not notice said eases for trial for said term; that in his legal judgment, inasmuch as the cases were continued at the April, 1895, term of court with the consent of said garnishee defendants, affiant honestly believed that under £the decisions of the Supreme Court said cases occupied the same status as any other civil cases to be noticed by either party at their pleasure; that being engaged in_„other litigation in the Wayne circuit court and elsewhere, except during the month of February and a portion of the month of March, 1896/affiant'found it difficult to devote the time necessary for the'preparation of the trial of said cases; that during the month of February and the early part of March, 1896, affiant was necessarily absent from this State to recruit his health, which had become impaired on account "of overwork;' that[.said eases are on the docket for the present term of court; that plaintiffs, who have a good and meritorious ease, are [ready to [proceed to the trial of said eases at[an early date, to be fixed by the court.

2. On May 5,1896, John E. Bird, associate counsel for relators, made an affidavit, in which he averred;

a — That he was prosecuting attorney of Lenawee county; that as such he was in attendance at the circuit court for said county, during the October and December, 1895, terms, and the February, 1896, term; that the October term extended over a period of four weeks, three of which were taken up with the trial of criminal eases, and the remaining week with the trial of two civil cases, which, even if said garnishee cases had been on the docket, would have been entitled to priority.

6 — 'That from the condition of the docket during the December, 1895, and February, 1896, terms of court, as appears by its records, to which reference is had, affiant was of the opinion that it was not likely that said garnishee cases would have been reached for trial during said terms if they had been upon the docket; that had such trials been possible it would hardly have been possible for affiant, through press of public and other business, to have taken part in such trials.