author: J. H. Gtillis, J.

text:
    DETROIT NEWSPAPER INDUSTRIAL CREDIT UNION v. McDONALD.
    1. Bills and Notes — Married Women — Coverture.
    The affirmative defense of coverture is not available to defendant, a married woman, in an action on a promissory note on which the defendant had defaulted.
    2. Husband and Wipe — Married Women — Consideration—Burden op Proop.
    A plaintiff who sues a married woman in assumpsit has the burden of showing that consideration for the obligation sued upon passed to her and that her promise to pay had reference to her own separate property.
    3. Same — -Married Women — Consideration—Evidence.
    Cheek issued by plaintiff credit union to defendant, a married woman, in which payees were defendant, her husband, and an automobile dealer, containing restrictive notice on back of check that it was issued to pay for automobile to be titled in name of defendant, held, to constitute evidence that plaintiff intended that consideration go to defendant, and defendant told plaintiff consideration would go to her, in action by plaintiff to collect note given by defendant and her husband as comakers in exchange for cheek, as against defense that title of ear was in husband only, and that defendant received no consideration for her promise.
    4. Property — Coverture Disabilities Abolished.
    The disabilities of coverture as to property are abolished (Const 1963, art 10, § 1).
    References for Points in Headnotes
    [1] 11 Am Jur 2d, Bills and Notes § 719.
    [2,3] 1 Am Jur 2d, Actions § 14; 26 Am Jur, Husband and Wife §§ 138-140.
    [4, 5] 26 Am Jur, Husband and Wife, §§ 20, 21.

      5. Bills and Notes — Married Women — Coverture.
    Constitutional abolition of disabilities of coverture renders a defense by a married woman that she received no consideration inuring to her separate estate, for a note on which her husband was comaker, without merit (Const 1963, art 10, § 1).
    Appeal from Common Pleas Court of Detroit; Stauczyk (Benjamin C.), J.
    Submitted Division 1 May 2, 1967, at Detroit.
    (Docket No. 2,384.)
    Decided December 7, 1967.
    Declaration by Detroit Newspaper Industrial Credit Union, a Michigan corporation, against Margaret McDonald for the amount due on a promissory note plus interest. Judgment for plaintiff. Defendant appeals.
    Affirmed.

      Berkley <& Berkley, for plaintiff.

      Donald M. Barton, for defendant.
   J. H. Gtillis, J.

The issue presented by this case concerns “the peculiar institution of coverture which is now, with some exceptions, relegated to history’s legal museum.” United States v. Yazell (1966), 382 US 341, 343 (86 S Ct 500, 502, 15 L ed 2d 404, 405).

Partial extinction of this concept in Michigan was accomplished by the rights of married women act of 1855 and its amendments, CL 1948, § 557.1 et seq. (Stat Ann 1957 Bev § 26.161 et seq.). The first section of the act reads:

“The real and personal estate of every female, acquired before marriage, and all property, real and personal, to which she may afterwards become entitled by gift, grant, inheritance, devise, or in any other manner, shall be and remain the estate and property of such female and shall not be liable for the debts, obligations and engagements of her husband and may be contracted, sold, transferred, mortgaged, conveyed, devised or bequeathed by her in . the same manner and with the like effect as if she were unmarried.”

Defendant, Margaret McDonald, a married woman, applied for a loan from plaintiff credit union on November 16, 1964. The application stated that the purposes of the loan were: (1) $200 for automobile insurance, (2) $2,278.40 for purchase of a 1965 Volkswagen Karmann G-hia, (3) $86 as a credit toward a prior loan from plaintiff to defendant; the total was $2,564.40. Due to defendant’s employment, she qualified to make an application for a loan from the plaintiff. Defendant’s husband, Paul, was not eligible to borrow from the plaintiff and did not join in the application.

On November 16, 1964 the loan was approved and defendant executed a promissory note for $2,564.40; Paul McDonald cosigned this note under the designation “signature of co-maker.” The final element in this' transaction of November 16 was plaintiff’s issuance of 2 checks: the first was payable to the order of the defendant in the sum of $200; the second was payable to defendant, her husband, Paul McDonald, and Bud Clark, Inc., the Volkswagen dealer, in the amount of $2,278.40.

The credit union official testified that he handed the principal check to the defendant, but the defendant’s husband testified that the check was given to him. On the back of the check appeared the following restriction:

“Your indorsement constitutes acceptance of this check as payment in full for 1965 Volks Wagen and acceptance of the following conditions: (a) Title to vehicle purchased by borrower is forthwith placed in the borrower with security interest in the amount of $2,564.40 in favor of Detroit Newspaper Industrial Credit Union at 1110 Park PL, Detroit, Michigan 48226 which security interest is to be disclosed in the application for certificate of title, (b) You will direct the Secretary of State to forward certificate of title to maker of this check. Executed form for this purpose is attached, (c) Upon receipt from the Secretary of State of the duplicate application for certificate of title, you will forward same to the maker. Stamped, self-addressed envelope for this purpose attached.”

Under this restriction appeared the signature of Margaret McDonald and Paul H. McDonald. This was followed by the depositor’s stamp with the name of Bud Clark, Inc., affixed thereon. Title to the automobile, however, was taken in the name of Paul H. McDonald alone. Four payments on the note were made by defendant prior to the default which precipitated the instant suit.

An assumpsit action was commenced on February 4, 1966, service of process made on defendant and subsequently an answer was filed on behalf of the defendant which inter alia set up the affirmative defense of coverture. Under the heading of affirmative defense the defendant contended “that defendant was and is a married women [sic], and that no part of the consideration inured to her separate estate.”

On May 26, 1966, the trial court rendered judgment for plaintiff for the unpaid principal, interest, costs and attorney’s fee. Motion for new trial was denied. An appeal was taken to this Court.

The requisites for a recovery in assumpsit against a married woman were formulated in Koengeter v. Holzbaugh (1952), 332 Mich 280, 283:

“She cannot become personally liable on an executory promise unless it concerns her separate estate; and her note given for any other consideration is void. * * # In assumpsit against a married woman plaintiff has the burden of showing that consideration for the obligation sued upon passed to her and that her promise to pay had reference to her own separate property.”

The trial court ruled that the defense of coverture was not available to the defendant and entered judgment for the balance due on the note plus costs. In analyzing the factual situation in the instant ease and the rule set forth in Koengeter, supra, it is important to remember the following. The check representing ■ the consideration for the note was made payable to the defendant, although it additionally required the signature of defendant’s husband and the Volkswagen dealer to negotiate. Obviously the defendant’s husband’s name was inserted on the check since he signed the note as an accommodation party and would, if the defendant failed to make payments as required under the terms of the note, be liable for the balance due. The plaintiff, before making the loan, required the defendant to advise it where the proceeds would be utilized. The credit manager of the plaintiff corporation testified that it was common practice in their organization to insert the automobile dealer’s name on the check when the loan was made for the purpose of purchasing an automobile. The application for the loan, which was signed only by the defendant, stated that she applied for the loan for the purposes of purchasing a 1965 automobile, paying the automobile insurance, and paying off a small balance due on a prior loan. The principal check issued by the plaintiff put the defendant, her husband, and the Volkswagen dealer on notice that it was to be used for the purchase of an automobile which was required to be titled in the name of the defendant. This is certainly good evidence that the plaintiff intended that the consideration for the note go to the defendant. It is further evidence that the plaintiff was advised by the defendant that the consideration would go to her. These facts amply distinguish this case from the factual situation in Koengeter, supra. In the latter case the comakers, who were husband and wife, advised the lenders that the proceeds were to he used as working capital for the benefit of a corporation.

We would, therefore, affirm the trial court. This appeal did not raise any issues concerning the effect of the Michigan Constitution of 1963, effective January 1, 1964. The cause of action in the instant case arose thereafter. The first sentence of Const 1963, art 10, § 1, states: “The disabilities of coverture as to property are abolished.” On this basis alone we would likewise affirm the trial court.

Affirmed. Costs to appellee.

Lesinski, C. J., and Weipert, J., concurred.


source: Caselaw Access Project

author: J. H. Gillis, J.

license: Public Domain

text:
    INSURANCE COMPANY OF NORTH AMERICA v. IROFF.
    1. Appeal and Error — Findings of Pact.
    Court of Appeals does not substitute its judgment for that of the trial court and does not reverse except where the findings of fact are clearly erroneous (GCR 1963, 517.1).
    2. Trial — Judge—Findings of Pact.
    Court rule requires the trial judge, sitting without a jury, to “find the facts specially and state separately its conclusions-of law thereon” (GCR 1963, 517.1).
    References for Points in Headnotes
    [1] 5 Am Jur 2d, Appeal and Error § 702.
    [2] 53 Am Jur, Trial §§ 1131-1134.
    [3, 4] 5 Am Jur 2d, Appeal and Error §§ 839, 842-845.
    [5] 5 Am Jur 2d, Appeal and Error § 1023.

      3. Same — Fact Finders — Conjecture—Speculation.
    Court of Appeals and the Supreme Court have always prohibited conjecture or speculation on the part of fact finders.
    4. Bailment — Findings op Fact — Speculation.
    Finding of fact by trial judge as to manner in which accident at defendant’s ear wash happened so as to damage plaintiffs’ ear with dual accelerator, unsupported by any evidence in the record and contradicted by undisputed testimony of defendant’s own witness, held, speculative, requiring reversal of judgment for defendant and remand for finding in writing of specific factual determinations by trial judge based on exist-
    ■ ing record or on additional testimony (GOB 1963, 517.1).
    5. Costs — Beversal on Appeal — Further Proceedings.
    Costs of appeal in ease where judgment for defendant on counterclaim is reversed and ease is remanded for further pro- ■ ceedings in which the trial court may make findings of faet based on existing record or on additional testimony, are to be taxed by appellant 20 days after judgment is entered in trial court.
    Appeal from Common Pleas Court of Detroit; Stanczyk (Benjamin C.), J.
    Submitted Division 1 June 5, 1967, at Detroit.
    (Docket No. 1,938.)
    Decided December 7, 1967.
    Declaration by Insurance Company of North America, subrogee of Herman and Julia Kanter, and Herman and Julia Kanter, against Lou Iroff, doing business as Scrub & Brush Auto Wash, for damages to plaintiffs’ car which allegedly were caused by the negligence of defendant’s attendant. Defendant counterclaimed for damage to the interior of the car wash. Judgment of no cause of action on plaintiffs’ claim and judgment for defendant on the counterclaim. Plaintiffs appeal.
    Reversed and remanded.
    Alexander, Buchanan & Conhlin, for plaintiffs.

      Bashara & Bashara, for defendant.
   J. H. Gillis, J.

Herein we relate the unfortunate incidents which led to the fastest car wash in history.

Mr. and Mrs. Kanter owned a 1964 Oldsmobile sedan equipped with a mechanically linked dual accelerator arrangement. One accelerator pedal was in the ordinary location; the other was located to the left of the brake pedal. On the morning of May 11, 1965, Mrs. Kanter drove the automobile to the Scrub & Brush Auto Wash and turned the vehicle over to one of the attendants in the customary manner.

But a few minutes afterward, while Mrs. Kanter was in the customer area inside the car wash, she heard a man yell and looked about to find her car proceeding through the building at a high rate of speed, engine roaring, and careening out of control from wall to wall. The attendant who took the car from Mrs. Kanter was behind the wheel all during this sensational auto wash. A wall at the far end of the wash line served finally to halt the vehicle’s motion.

The Kanters (and their insurance carrier as subrogee) sued the car wash for damage to the auto allegedly caused by the negligence of the attendant. Defendant counterclaimed for damage to the interior of the car wash alleging that Mrs. Kanter negligently failed to notify defendant or his employees of the unusual dual accelerator arrangement and further failed to advise that the second gasoline pedal would stick, and further that because of such negligence on the part of Mrs. Kanter, the defendant suffered the resultant damage.

The trial judge, sitting without a jury, entered a no cause of action on plaintiffs’ $523.89 claim and entered a judgment on the counterclaim in the amount of $965.83. Plaintiffs appeal.

It is well known that this Court does not substitute its judgment for that of the trial court and we do not reverse except where the findings of fact are clearly erroneous. GrCE 1963, 517.1. Arnone v. Chrysler Corporation (1967), 6 Mich App 224; Haltom v. Burleson (1967), 6 Mich App 89. This is properly such a case for reversal.

The entire opinion of the trial judge is repeated here:

“The court finds that the cause of this accident was the failure of Mrs. Kanter to apprize the defendant’s employee of the unusual condition in the motor vehicle in question, namely, the presence of two accelerator pedals, one on each side of the car, with the brake pedal in the middle.
“I don’t think it’s idle speculation to say that probably what happened here was that the driver, who works in a car wash place, wearing boots, as he attempted to bring the ear to a stop, as he touched the brakes, simultaneously touched the left accelerator. As a result the car shot forward.
“The court finds that this failure on the part of Mrs. Kanter to apprize the defendant’s employee of the unusual condition of this vehicle was negligence on her part.
“The judgment, therefore, is no cause on the plaintiffs’ declaration. Defendant may recover on the counterclaim. The amount there is $965.83.”

While quite frankly the conclusion reached by the trial judge seems plausible, there is not an iota of evidence in the record that defendant’s attendant was wearing boots. Moreover, the conclusion that the attendant’s foot touched the left accelerator is in distinct conflict with the undisputed testimony of the attendant himself:

“Q. Is it not a fact, Mr. Bolden, that your foot, your left foot, was on the left accelerator which you thought in fact was the brake?
- “A. No, sir, # * *
“Q. At anytime did you have your foot on the left accelerator, thinking it was the brake ?
“A. No, I didn’t. * * *
“Q. In other words, the left accelerator doesn’t give you any problem when you go in the car and start with the right hand side; the left accelerator is not in your way, is it?
“A. No, it wouldn’t be in the way, no. * * *
“Q. Mr. Bolden, it is possible for a person’s foot, if you were operating that car, with his right foot for the gas in normal fashion and the left foot on the brake, is it possible for someone to slip over on the left accelerator?
A. No, it’s not.
“Q. It’s not possible to do that?
“A. No, you wouldn’t. If your feet [foot] would slip off the brake, it would be on the floor; it wouldn’t be on the accelerator.
“Q. There’s enough space in between there—
“A. (Interposing) That’s right.”

Additional testimony of Mr. Bolden disclosed that he didn’t see the dual accelerator pedal when he got in the car and had no knowledge of its existence until after his wild ride had terminated.

The difficulty of review of this relatively brief record is the lack of recorded factual findings and conclusions of law by the trial judge. While conceivably the trial judge may have disbelieved the attendant’s testimony, he has assigned no reasons for such a conclusion — yet his opinion is in obvious disregard of such testimony. Further, the plaintiffs assert the presumption of negligence in their favor arising from the bailment of their automobile and its return in a damaged condition. No findings on the plaintiffs’ case were made below. If the trial judge did choose to disregard the attendant’s testimony, what facts did the trial court find to exist to rebut the presumption of negligence arising from the bailment?

GCR 1963, 517.1, requires the trial judge, sitting without a jury, to “find the facts specially and state separately its conclusions of law thereon.”

This Court and the Michigan Supreme Court have always prohibited conjecture or speculation on the part of fact finders. Genesee Merchants Bank & Trust Company v. Payne (1967), 6 Mich App 204; Kaminski v. Grand Trunk W. R. Co. (1956), 347 Mich 417.

Having pointed out what we consider to be the infirmities of the proceedings below, we remand the case for entry of judgment consistent with this opinion. We leave it to the trial judge, however, on remand, to file a written opinion of his specific factual determinations. The court should determine what weight it will give to Mrs. Kanter’s testimony that the accelerator system was in good operational order when she drove the car up to the car wash, and the testimony of the man in charge of the shop that repaired plaintiffs’ auto, who stated that he examined the vehicle after it was brought into his shop both before the repairs were made and after they were completed and found the brakes and the dual accelerator pedals in good operational order. The trial court may make findings of fact based on the existing record or by the taking of additional testimony. McCarty v. Mercury Metalcraft Company (1964) , 372 Mich 567; Ingram v. City of Saginaw (1965) , 1 Mich App 36; Marcus v. Busch (1965), 1 Mich App 134; Zitomer v. Kelmenson (1965), 375 Mich 206; and Titchenal v. Jackson & Church Co. (1965), 375 Mich 281.

After a review of the court’s findings the court may, based on such findings and conclusions of law, enter a judgment on behalf of the plaintiffs or the defendant, or may enter a no cause of action as to each of the parties.

Costs of this appeal shall be taxed by the prevailing party in this Court 20 days after judgment is entered in the common pleas court.

McGregor and Thorburn, JJ., concurred.

       Codified by CL 1948, § 256.541 (Stat Ann 1960 Rev § 9.1721),


author: Holbrook, P. J.

text:
    FIDLIN v. COLLISON.
    1. Taxation — Statutes—Construction.
    The scope of tax laws may not be extended by implication or forced construction, and the language of a tax statute, if dubious, is not resolved against the taxpayer.
    2. Same — Collecting Opficers — Authority.
    Tax collecting officers can only act within express authority conferred by law.
    3. Statutes — Construction—Title op Act.
    Proper construction of the body of a statute in cases of doubt may be revealed by resort to the preamble or recitals in the title for the purpose of ascertaining the legislative intent (Const 1963, art 4, § 24).
    4. Taxation — Jeopardy Assessment — Collection.
    Jeopardy assessment procedure, which accelerates personal property tax so that it becomes immediately due and payable, held, to incorporate by reference the collection procedure authorized under the general property tax statutes and to confer on tax collectors the same powers and duties as they possess under general property tax statutes, to tlie extent that these powers and duties are harmonious and not inconsistent with jeopardy assessment statute (CL 1948, §§ 211.40, 211.46, 211-.47; CLS 1961, §§ 211.691-211.697).

      References for Points in Headnotes
    [1] 51 Am Jur, Taxation § 308 et seq.

    [2] 51 Am Jur, Taxation § 980 et seq.

    [3, 4] 50 Am Jur, Statutes §§ 309, 310 et seq.

    [5-8] 51 Am Jur, Taxation § 981 et seq.

      5. Same — Tax Collector — Personal Call.
    The tax collector is to call personally upon eaeh person liable to pay taxes and demand payment of the taxes charged against him, if not paid by due date as set forth in statute (CL 1948, § 211.46).
    6. Same — Demand—Distraint oe Property.
    Generally, a demand for the taxes due must be made before property can be distrained, and there must be a compliance with other statutory conditions precedent (CL 1948, § 211.46).
    7. Same — Seizure oe Personal Property — Excessive Amount.
    Seizure of personal property is limited to an amount sufficient to pay the personal property tax; if the amount is excessive the seizure is illegal (CL 1948, § 211.47).
    8. Same — Execution oe Levy on a Statutory Lien.
    Execution of levy upon a statutory lion for $629.32 jeopardy assessment for personal property taxes by seizing and padlocking property assessed at $10,500 without a prior demand for payment or providing opportunity for making payment, is without statutory authority and violates the constitutional provision mandating due process of law where there is a taking of property (Const 1963, art 1, § 17; CL 1948, § 211.46; CLS 1961, §§ 211.691-211.697).
    Appeal from Saginaw; O’Neill (James E.), J.
    Submitted Division 3 June 6, 1967, at Lansing.
    (Docket No. 1,880.)
    Decided December 7, 1967.
    Leave to appeal denied March 6,1968.
    See 380 Mich 761.
    Complaint by Eldon and Emma Fidlin against William T. Collison, treasurer of the city of Saginaw, for conversion of personal property. Judgment for defendant. Plaintiffs appeal.
    Reversed and remanded for new trial.

      Floyd T. Fuss, for plaintiffs.

      Smith, Brooker, Harvey <& Cook, (Francis B. Drinan, of counsel), for defendant.
   Holbrook, P. J.

Plaintiffs, Eldon Fidlin and his wife, Emma Fidlin, brought suit against "William T. Collison, treasurer for the city of Saginaw, alleging conversion of personal property. From a jury verdict of no cause of action, plaintiffs appeal.

There appears to be no dispute between the parties as to the following pertinent facts: Eldon Fidlin (hereinafter referred to as plaintiff) owned and operated Mel’s Hamburg Kitchen, located at 313 South Michigan avenue in Saginaw, a well-established business. In October of 1957, plaintiff ventured into the take-out food and restaurant business and leased a corner lot at 2700 State street for 10 years at $200 per month and constructed thereon a cinder block building. The cost of the building, with utilities, equipment and surrounding pavement, according to plaintiff, was approximately $29,000. The building remained personal property and was assessed as such.

Plaintiff operated a take-out restaurant at the 2700 State street premises from April, 1958 until May of 1961, when he closed the business on the advice of his doctor and his inability to hire competent help. On cross-examination, plaintiff stated that the changing of the street fronting the premises from a two-way to a one-way street in November of 1958, hurt his business. Plaintiff was breaking even at the time the business was closed.

Plaintiff continued to use the building in connection with his other business by storing food and maintaining ice-making facilities in it; the electricity and water supply were operative. The building was put up for sale as a take-out restaurant business, with equipment.

On 'July 19,1961, defendant learned that plaintiff’s take-out business was closed and personal property was being removed from the premises. That same day, defendant went to 2700 State street and on looking through a doorway window observed that 2 stoves or grills had been removed from underneath their hoods. Defendant went to the county assessor’s office, found out that the take-out business was being operated by plaintiff and the personal property including the building was assessed at $10,500. He then proceeded to the office of the city attorney where a jeopardy assessment affidavit was made out claiming the amount of $629.32. After filing a copy of the jeopardy assessment affidavit with the register of deeds’ office, defendant proceeded to Mel’s Hamburg Kitchen. Plaintiff was not there. Defendant then went directly to 2700 State street, padlocked both doors and posted the following notice:

“NOTICE
“To whom it may concern:
“This is to certify that I, William T. Collison, treasurer of the city of Saginaw, Michigan, have this day seized the personal property of Eldon Fidlin, doing business as Take Out Restaurant at 2700 State street, Saginaw, Michigan, due to jeopardy assessment.
“All persons are warned against removing or disturbing this property or notice in any way.
“s/William T. Collison “City Treasurer
“Dated July 19, 1961.”

Defendant returned to his office and mailed a copy of the jeopardy assessment affidavit to plaintiff' at 313 South Michigan avenue. Plaintiff received the copy the following day, July 20.

The charter of the city of Saginaw provides for the payment of city and school taxes on July 1, at which time they are normally billed. However, in 1961, the billing did not take place until September 1 due to an appeal to the board of State tax commissioners; thus plaintiff had no notice of a tax payment being due prior to receiving a copy of the jeopardy assessment affidavit.

Plaintiff telephoned defendant on July 20 and inquired as to the personal property seizure. Defendant informed plaintiff that by paying the $629.32 assessment the padlocks would be removed. Plaintiff chose not to pay the jeopardy assessment because he claimed the seizure was improper. The building remained locked from July 19 to September 1 at which time defendant conducted a tax sale. Prior to the sale, plaintiff on request, and in the company of defendant or employees of the city treasurer’s office, was permitted to remove food and obtain ice from the building.

Six items were sold at the tax sale: a small safe ($50); a milk machine ($280); a thermostat griddle ($30); a fan ($40); a cash register ($150); and an electric oven ($115). These items individually brought a total of $665. They were offered as a unit and brought $675. Defendant subsequently sent plaintiff a check for the excess obtained on the tax sale over the jeopardy assessment. Plaintiff refused to cash this check and brought suit, alleging conversion of his personal property by defendant.

The primary issue on appeal is as follows: Did defendant, in seising plaintiff’s personal property, act in compliance with the applicable statutory provisions providing for personal property taco collection?

In the case of Consolidated Paper Co. v. Department of Revenue (1943), 306 Mich 216, 221 several principles of law, applicable to the instant case, were quoted from previous Michigan cases by Mr. Justice Bushnell:

“We also said in Michigan Allied Dairy Ass’n v. State Board of Tax Administration (1942), 302 Mich 643, 650:
“ We have repeatedly held that the scope of the tax laws may not be extended by implication or a forced construction. We held in In re Dodge Brothers (1928), 241 Mich 665, 669, as follows:
“Tax exactions, property or excise, must rest upon legislative enactment, and collecting officers can only act within express authority conferred by law. Tax collectors must be able to point to such express authority so that it may be read when it is questioned in court. The scope of tax laws may not be extended by implication or forced construction. Such laws may be made plain, and the language thereof, if dubious, is not resolved against the taxpayer.” ’
“ We have since adhered to this principle in J. B. Simpson, Inc., v. O’Hara (1936), 277 Mich 55, 61, and Star Steel Supply Co. v. State of Michigan (1939), 290 Mich 378, 383, and adhere to it again in the case at bar.’ ” (Emphasis supplied.)

We are unable to find where PA 1956, No 55 has been construed by an appellate court in this State; and while the privilege of coming first may be enviable, it is not without its own onus of responsibility, especially where construction of legislative intent is involved.

The purpose and intent of PA 1956, No 55 is stated in its preamble which reads as follows:

“An act to authorize the jeopardy assessment of personal property taxes; to establish the terms, limitations and conditions upon which the date for payment of personal property taxes may be accelerated; to provide for the collection of such taxes, and to establish a lien therefor; and to establish the liability of the purchaser of personal property for personal property taxes.”

Section 1 of the act provides in part as follows:

“The treasurer of any township, city or village is authorized to accelerate the date on which any personal property tax collectible by him would otherwise be due upon the terms, limitations and conditions set forth in this act.” (Emphasis supplied.)

The affidavit of defendant complied substantially with the requirements of section 2 relating to the contents of the jeopardy assessment affidavit; the language of the affidavit indicated reliance on subsection (b) of section 2 which reads as follows:

“That the taxpayer has assigned, disposed of or concealed, or is about to assign, dispose of or conceal any of this property, thereby tending to jeopardize the collectibility of any personal property tax, assessed and levied by the regular assessment and collection procedure.”

Also, from the facts, the defendant complied substantially with the requirements of section 3, relating to the filing of the affidavit and notice to the taxpayer.

It is in the requirements of section 4, that the issue before us takes focus and for this reason it is set forth in full:

“Upon the filing of such affidavit with the register of deeds, a personal property tax in the amount specified therein shall be immediately due and payable from the taxpayer therein named and shall be a lien against the property therein described to the same extent and of the same character as the lien provided in section 40 of Act No. 206 of the Public Acts of 1893, as amended, being section 211.40 of the Compiled Laws of 1948. The treasurer shall have the same powers and duties in the collection of the tax so assessed as in the collection of personal property taxes regularly assessed under the general laws of this State.”

There can be no argument that the act authorizes acceleration of the date for payment of personal property taxes whereby the specified amount of personal property tax becomes “immediately due and payable.” To this end a lien of “the same extent and of the same character as the lien provided in section 40 of Act No. 206 of the Public Acts of 1893, as amended, being section 211.40 of the Compiled Laws of 1948”, attaches against the taxpayer’s personal property. The last sentence of said section 4, gives the tax collector “the same powers and duties * * * as in the collection of personal property taxes regularly assessed under the general laws of this State.” (Emphasis supplied.)

While jeopardy assessment procedure accelerates the personal property tax so that it becomes immediately due and payable, the collection of such tax is to be consonant with the collection procedure authorized under the general property tax statutes, vis. CLS 1961, § 211.44 et seq. (Stat Ann 1965 Cum Supp § 7.87 et seq.). Thus, CL 1948, § 211.46 (Stat Ann 1960 Rev § 7.90) and CL 1948, § 211.47 (Stat Ann 1960 Rev § 7.91) must be examined and PA 1956, No 55 applied thereto. In other words, PA 1956, No 55 must be construed as adopting and incorporating with reference to collection procedures, the powers and duties of tax collectors as found in CL 1948, § 211.46 (Stat Ann 1960 Rev § 7.90) and CL 1948, § 211.47 (Stat Ann 1960 Rev § 7.91) to the extent such powers and duties are harmonious and not inconsistent with its provisions.

CL 1948, § 211.46 (Stat Ann 1960 Rev § 7.90) requires the tax collector to “call personally upon each person liable to pay such taxes, if a resident of such township, or at his usual place of residence or business therein, and demand payment of the taxes charged against him.” (Emphasis supplied.) CL 1948, § 211.47 (Stat Ann 1960 Rev § 7.91) states the next step of tax collection in the following languages^

“If any person, firm or corporation shall neglect or refuse to pay any tax assessed to him or them, the township or city treasurer, as the case may be, shall collect the same by seizing the personal property of such person, firm or corporation, to an amount sufficient to pay such tax, fees and charges for subsequent sale, wherever the same may be found [in the State], and from which seizure no property shall be exempt.”

This is the procedure to be followed in general property tax collection, and absent a specific provision in the jeopardy assessment act, we assume the same procedure is to be followed in collecting personal property taxes pursuant to a jeopardy assessment.

The facts in this case disclose no demand by the defendant city treasurer of plaintiff for payment nor a neglect or refusal by the plaintiff taxpayer to pay prior to the seizure of the personal property. Such execution of levy upon a statutory lien without a prior demand for payment or the providing of an opportunity for making such payment, is without statutory authority and violates the constitutional provision mandating due process of law where there is a taking of property. 84 CJS, Taxation, § 689, p 1367.

Defendant urges as controlling the cases of Thompson v. Wordeman (1936), 64 SD 261 (266 NW 142) and Metzger v. Quick (1955), 46 Wash 2d 477 (282 P2d 812). The Thompson Case is inapplicable in that it deals with delinquent taxes. The Metzger Case is more on point — however, Washington statutory authority, as indicated therein, specifically provided for jeopardy distraint (as opposed to jeopardy assessment) where personal property was about to become unavailable as a means of satisfying the personal property taxes due or about to become due. No such statutory authority exists in Michigan.

Defendant’s seizure was unlawful in another regard — the seizure was excessive with reference to the amount of personal property tax immediately due and payable. Defendant knowingly seized personal property assessed at $10,500 for a jeopardy assessment of $629.32.

CL 1948, § 211.47 (Stat Ann 1960 Rev § 7.91) limits the seizure of personal property “to an amount sufficient to pay such tax.” 84 CJS, Taxation, § 694, p 1371 states as follows:

“The officer authorized to distrain for taxes must exercise a sound discretion as to the property to be seized to satisfy the tax and the amount, and, where different articles of property are available, he is bound to select that which will best satisfy the tax with the least expense and inconvenience to the taxpayer. The amount of property distrained must not he excessive and, if it is, the seizure is illegal.” (Footnotes omitted.) (Emphasis supplied.)

Defendant’s seizure of plaintiff’s personal property was unlawful for 2 reasons — (1) a failure to follow authorized statutory collection procedure and (2) an excessive distraint.

Other matters raised by plaintiff need not be considered in view of our determination.

Reversed and remanded for new trial not inconsistent with this opinion. Costs to plaintiffs-appellants, assessment to await determination on the merits.

Burns and Wise, JJ., concurred.

       Plaintiff admitted taking out 2 deep fryers (valued at $275) for use elsewhere. Also, a coffee urn had been returned to its seller. Also a cigarette machine was removed.

       “William T. Collison, being first duly sworn, deposes and says that he is the treasurer of the city of Saginaw, a municipal corporation in the county of Saginaw and State of ■ Michigan, and that Eldon Pidlin, doing business as Take Out Restaurant, 2700 State street, Saginaw, Michigan, owned certain personal property consisting of restaurant equipment and building on the tax day, December 31, 1960; that said property had its situs within the city of Saginaw, Michigan, on said tax day; that the assessed value thereof is $10,500; that the amount of the jeopardy tax rate is $59.84 per thousand dollars of evaluation; that the tax due is $629.32; that the names of the taxing units on whose behalf such jeopardy assessment is made are the city of Saginaw, the school district of the city of Saginaw, and the county of Saginaw; that said deponent has good reason to believe that said taxpayer has closed his business and is about to assign and dispose of said personal property, thereby tending to jeopardize the collectibility of any personal property tax, assessed and levied by the regular assessment and collection procedures.
      “Eurther deponent says not.”

       CLS 1961, §§ 211.691-211.697 (Stat Arm 1960 Rev §§ 7.51[1]-7.51[7] ).

         “In cases of doubt as to the proper construction of the body of a statute, resort must be had to the preamble or reeitals, for the purpose of ascertaining the legislative intent.” 82 CJS, Statutes, § 349, p 730. See, also, Const 1963, art 4, § 24.

       Defendant gave “notice” to plaintiff by mailing him a copy of tlie jeopardy assessment affidavit. This seetion specifies “to whieh notice shall be attached a copy of the affidavit filed with the register of deeds,”

       84 CJS, Taxation, § 585, p 1181, states in part that “a statute imposing a lien for the payment of a tax will be strietly construed, and will not be enlarged by construction.”

       The procedural mechanics of general property tax collection, such as payment and extension of payment dates, necessity of warrant, receipt of tax roll, et cetera, are inconsistent with the provisions of PA 1956, No 55. Therefore such are not necessary nor applicable where jeopardy assessment procedure is utilized.

       US Const, Am 14, § 1; Const 1963, art 1, § 17.


author: Wise, J.

text:
    HOVEN v. HOVEN.
    1. Appeal and Error — Questions Beviewable — Antenuptial Agreement.
    The Court of Appeals does not consider an issue relative to an antenuptial agreement raised on appeal, where it does not warrant discussion.
    2. New Trial — Discretion op Court.
    The grant or denial of a new trial is a matter in the discretion of the trial court.
    3. Same — Discretion op Court.
    Appellate eourts, as a general rule, will not disturb a trial court’s denial of a motion for a new trial unless there has been a clear abuse of discretion.
    4. Same — Court Bules — Newly Discovered Evidence.
    Material evidence, newly discovered, which could not with reasonable diligence have been discovered and produced at trial is, under eourt rule, a proper basis for granting a new trial (GCB 1963, 527.1 [6]).
    5. Same — Newly Discovered Evidence.
    The requisites of newly discovered evidence to justify a new trial are (1) that the evidence itself and not merely its materiality is newly discovered, (2) that it is not merely cumulative, (3) that it is such as renders a different result probable on retrial and (4) that the party offering it could not with reasonable diligence have discovered and produced it at trial (GCB 1963, 527.1 [6]).
    Beperences- por Points in Headnotes
    [1] 5 Am Jur 2d, Appeal and Error § 702 et seq.

    [2] 39 Am Jur, New Trial § 22.
    [3] 5 Am Jur 2d, Appeal and Error § 850 et seq.

    [4, 6-8,10] 39 Am Jur, New Trial § 156 et seq.

    [5] 39 Am Jur, New Trial § 158.
    [9] 39 Am Jur, New Trial § 26 et seq.

      6. Divorce — Newly Discovered Evidence — Discretion op Court.
    Motion for new trial by defendant husband who, following grant of divorce to plaintiff wife discovered letters indicating clandestine relationship between wife and another man during marriage, held, properly denied where, at the hearing on the motion, defendant admitted that he had suspected such conduct for a number of years, but failed to present any evidence or question plaintiff about it at trial, since the grant or denial of a motion for new trial on the basis of newly discovered evidence is a matter largely within the discretion of the trial eourt, and such discretion will not be disturbed on appeal where, as here, the record indicates that the moving party, with diligence, could have discovered and presented his evidence at the trial (GCR 1963, 527.1[6]).
    7. New Trial — Newly Discovered Evidence.
    Motions for new trial on the ground of newly discovered, evidence are not favored by the courts, since the policy of the law is to avoid the mischief that would attend the granting of such relief and to promote all diligence in securing and presenting evidence at trial (GCR 1963, 527.1 [6]).
    S. Same — -Newly Discovered Evidence.
    Rules relating to grant of new trial on the basis of newly discovered evidence are generally applied against the party seeking a new trial, absent a proper showing that the party is entitled to such relief within the intent of the eourt rule and the case law (GCR 1963, 527.1 [6] ).
    9. Divorce — New Trial — Lack op Counsel.
    Claim by defendant, who appeared unrepresented by counsel at adjourned trial for divorce, announcing that he would represent himself, that trial eourt committed reversible error in allowing him to withdraw his answer and proceed to trial unrepresented because he was ill and confused at the time held, without merit, where the record shows that defendant was represented by counsel whom he dismissed on the day initially set for trial, that defendant was given an adjournment to obtain counsel, that he appeared at the adjourned trial 3 months later without counsel, that the divorce matter was discussed with the trial judge in chambers for about 2 hours before the trial and defendant’s conduct during trial indicated that he fully understood the nature and import of the proceedings, particularly where there is no justification for the failure to obtain counsel, since a party who eleets to proceed without counsel is bound by such election and the burdens that accompany it.

      10. Judgment — New Trial — Termination oe Litigation.
    There must be some stage of litigation which the parties can look to as final and begin to live their lives in accordance with a final determination, and the courts will not grant a motion for new trial where a party has had his day in eourt.
    Appeal from Grand Traverse; Brown (Charles L.), J.
    Submitted Division 3 June 6, 1967, at Grand Rapids.
    (Docket No. 1,652.)
    Decided December 7, 1967.
    Catherine 0. Hoven was granted an absolute divorce from Arthur H. Hoven. Defendant’s motion for new trial denied. Defendant appeals.
    Affirmed.

      Zerafa & Zerafa, for plaintiff.

      Philip A. Glaneey, for defendant.
   Wise, J.

The plaintiff, Catherine 0. Hoven, filed a complaint in the circuit court for Grand Traverse county, against the defendant, Arthur H. Hoven, praying for an absolute divorce, the custody of a minor child, property settlement and attorney fees. An appearance and answer were filed in the defendant’s behalf, by his attorney, praying that the complaint be dismissed.

On October 5, 1964, the matter was brought on for a hearing on its merits with all parties present. At the time of the hearing, certain differences developed between the defendant and his attorney which prompted the court to grant the attorney permission to withdraw from the case. Thereupon the court ordered the defendant to procure other counsel no later than October 15, 1964, after which a new date would be set.

The new date was set for January 15, 1965, but on that date the defendant appeared without counsel and advised the court that he had elected to represent himself. Before proceeding, the trial judge, the defendant, the plaintiff and her counsel went into the trial judge’s chambers where the matter of divorce and the rights of the parties were discussed. After about two hours the defendant stated in open court that he would not offer any proofs as far as the divorce was concerned and that the plaintiff could proceed to take the divorce as a matter of default.

The judgment of divorce was entered and filed on November 8, 1965. Pursuant to the judgment, the defendant was to pay up to $2,000 each year toward the education of the minor child and $8.50 per week toward her support. As to the property, the court awarded the plaintiff $15,000 and she was given a lien on the property to secure her interest.

On the same day the defendant, now represented by counsel, filed a motion for a new trial and to modify the property settlement. In support of his motion the defendant contended that at the time of the proceeding he was not represented by counsel, was ill, and could not understand the nature and import of the proceedings, and that since the entry of the judgment the defendant had discovered certain letters addressed to his wife from “Mr. X.” revealing the existence of a clandestine relationship between the two which if brought to the court’s attention at the time of the proceedings would have influenced the outcome. The defendant also contended that there existed an antenuptial agreement releasing him from any financial demands made by the plaintiff.

A hearing on the motion for a new trial was had on December 14, 1965. On December 17, 1965, the trial court entered its order denying the motion and upholding the original judgment. It is from that adverse ruling that the defendant brings the present appeal.

On appeal the defendant raises three questions. The question relative to an antenuptial agreement does not warrant discussion. The other questions are as follows:

1. Did the trial court abuse its discretion by allowing the, plaintiff to proceed to take the divorce as a matter of default?
2. Did the trial court err in refusing to set aside the default judgment, on the basis of newly discovered evidence?

■ The g’rant or denial of a new trial is a matter addressed to the discretion of the trial court. Cataldo v. Winshall (1966), 2 Mich App 442; Teller v. George (1960), 361 Mich 118. Appellate courts as a general rule will not disturb the trial court’s determination to deny a motion for a new trial unless there has been a clear- abuse of that discretion.

The defendant directs our attention to GOB-1963, 527.1(6) which allows a new trial upon the basis of newly discovered evidence. The pertinent section of the court rule reads:

“A new trial may be granted # # * for any of the following causes: * * *
“(6) Material evidence, newly discovered, which could not with reasonable diligence have been discovered and produced at trial.”

Aside from the court rule and its clear meaning, case law has enumerated the requisites that must be present before newly discovered evidence justifies a new trial. Canfield v. City of Jackson (1897), 112 Mich 120; Marion v. Savin (1946), 315 Mich 448; Reardon v. Buck (1952), 335 Mich 318; Hainault v. Vincent (1961), 365 Mich 370. These cases stand for the proposition that before newly discovered evidence warrants a new trial the moving party must show (1) that the evidence itself and not merely its materiality is newly discovered; (2) that it is not merely cumulative; (3) that it is such as renders a different result probable on retrial; and (4) that the party could not with reasonable diligence have discovered and produced it at trial.

It does not appear to this Court that the defendant has satisfied the requirement that the party could not with reasonable diligence have discovered and produced it at trial. At the hearing on the motion for a new trial the record reveals the follov/ing colloquy between the defendant and the trial court, relative to the new evidence:

“The Court. .These other things in these letters, those were things that just hurt your feelings when you read them, didn’t they?
“The Witness. No, I suspected it was going on for the last number of years, and it bothered me.”

It is apparent that the “it” the defendant was referring to was the relationship that evidenced itself in the letters he was urging the court to notice. Since defendant became aware of “it” several years in the past, it is valid to assume that he could have endeavored to corroborate his suspicion with facts. The record is lacking any evidence to indicate that the defendant was diligent in acting upon his suspicions after having been alerted that his Yvife was perhaps guilty of certain indiscretions. Further, the failure of the defendant to question the plaintiff in open court relative to his suspicions is an additional indication that the defendant was remiss in ascertaining the basis of his beliefs.

We therefore find that the defendant has failed to make a showing that the new evidence could not have been discovered with reasonable diligence. Buchthal v. New York Central R. Co. (1952), 334 Mich 556; Hainault v. Vincent, supra. A motion for a new trial upon the ground of newly discovered evidence is not favored by the courts in that the policy of the law is to avoid the mischief that would attend the granting of such relief and to promote diligence in securing and presenting evidence at trial. In the absence of a proper showing, within the intent of the court rule and the case law, the grant of such relief is generally applied against the party seeking a new trial on the basis of newly discovered evidence. Reardon v. Buck, supra; Schwalk v. Schwalk (1958), 352 Mich 383; Murchie v. Standard Oil Company (1959), 355 Mich 550; Hainault v. Vincent, supra.

Last the defendant contends that the trial court was in error in allowing the plaintiff to proceed to take the divorce as a matter of default. We find no merit in this position. The record is lacking evidence to support the contention that the defendant was ill and confused.

The defendant contends that because he was not represented by counsel he was not able to participate adequately in the divorce proceedings. No doubt the defendant is correct in his position that being represented by counsel is to the advantage of any person involved in a legal matter. However, this Court can discern no reason for the defendant’s failure to retain counsel during the three month interval. The excuse offered by the defendant, that most of the attorneys he might have retained were acquainted with his wife, is not persuasive and certainly inconsistent with the duty of all members of the bar to represent clients adequately and vigorously in spite of an acquaintance with the opposing party. We hold that the defendant is bound by his election to proceed without counsel and is also bound by the burdens that accompany such election.

The record of this case reveals that this matter has been pending since October, 1963. There must be some stage of litigation which the parties involved can look to as final and begin to live their lives in accordance with a final determination. The defendant has had his day in court and we find no reason to have this matter continued. The language of Justice Voelker in Knowlton v. City of Port Huron (1959), 355 Mich 448, 456, is particularly'applicable to this case and reflects the thinking of this Court. It reads:

“This claimed right to ‘sue till something gives’ cannot be sound law. There must be an end of litigation, and out of sheer self-defense and considerations of broad public policy our courts cannot gladly permit repeated litigation of the same old question under the circumstances appearing in this case.”

We conclude, based upon the facts and the issues raised, that the denial of the defendant’s motion for a new trial was not an abuse of discretion.

Affirmed. Costs awarded to appellee.

Holbrook, P. J., and Burns, J., concurred.


text:
    DAUER v. ZABEL.
    1. Constitutional Law — Court Rules — Supreme Court.
    The Constitution and legislature have given rulemaking power to the Supreme Court to make rules governing practice and procedure in the courts (Const 1908, art 7, §5; CLS 1961, § 600.223).
    2. Same — Court Rules — Supreme Court — Demand for Jury.
    The manner and time for demanding jury trial is procedural within the meaning of the Constitution and the statutes and the adoption of the rule prescribing time and manner of demand was a proper exercise of the rulemaking power of the Supreme Court (GCR 1963, 508).
    3. Jury — Court Rules — Time for Demand.
    Defendant’s demand for jury trial held, properly denied when demand was not filed within time limit specified in court rules, where more than 4 months after filing his answer defendant made his demand (GCR 1963, 508.2[1], 508.4).
    4. Courts — Court Rules.
    Court rules have the force of law and are tantamount to rules incorporated in statutes if properly promulgated and not exceeding limitation of court’s rulemaking power (Const 1908, art 7, § 5).
    5. Appeal and Error — Trial Judge’s Failure to Make Findings of Fact..
    Failure of trial court to make findings of fact in action tried without jury held, to require remand for new trial (GCR 1963, 517).
    References for Points in Headnotes
    [1, 4] 20 Am Jur 2d, Courts § 82 et seq.

    [2] 31 Am Jur, Jury § 40.
    [3] 31 Am Jur, Jury § 59.
    [5] 5 Am Jur 2d, Appeal and Error § 974.
    [6] 5 Am Jur 2d, Appeal and Error § 1011.

      6. Costs — Death—New Trial — Bindings oe Pact.
    Assessment of costs in action fox' wrongful death of 5-year-old child await final determination on the merits where case is reversed and remanded for new trial for failure to make findings of fact (CL 1948, §§ 691.581, 691.582; GCR 1963, 517.1.
    Appeal from Saginaw; O’Neill (James E.), J.
    Submitted Division 3 June 7,1967, at Grand Rapids.
    (Docket No. 1,931.)
    Decided December 7, 1967.
    Leave to appeal granted March 6, 1968.
    See 380 Mich 761, 381 Mich 555.
    Complaint by Eva F. Dauer, administratrix of David Anthony Dauer, deceased, against Carl J, Zabel for wrongful death. Judgment for plaintiff. Defendant appeals.
    Reversed and remanded for new trial.

      Cicinelli, Mossner, Majoros, Harrigan S Alexander, for plaintiff.

      Smith, Brooker, Harvey & Cook (A. T. Lippert, Jr., of counsel), for defendant.
   Holbrook, P. J.

On November 7, 1962, plaintiff filed suit against defendant in the circuit court in Saginaw county, under the provisions of the wrongful death act, CL 1948, §§ 691.581, 691.582 (Stat Ann 1959 Cum Supp §§ 27.711, 27.712) seeking recovery on behalf of the estate of David Anthony Dauer. This action sought damages for the death of deceased, age 5 years, as a result of a motor vehicle accident, May 2, 1962. Trial was had before the court without a jury November 27, 1964. After the plaintiff had completed the presentation on her proofs, defendant made a motion for involuntary dismissal under GrCR 1963, 504.2 which the court denied. Defendant then offered an exhibit which was withdrawn when objection was made by plaintiff. Defendant did not present any proofs. Defendant then renewed his motion for involuntary dismissal and for a directed verdict. The court requested briefs which were furnished, and on February 24, 1966, rendered a written opinion granting judgment to plaintiff and against defendant for the sum of $15,721.40 plus interest from date of death of deceased. On February 25, 1966, final judgment was entered.

From this judgment, defendant has appealed raising several questions for review which are hereinafter considered.

1. Did the trial court properly strike defendant’s demand for a jury trial when a jury demand was not filed, within the time limit specified in QCR 1963, 508f

The defendant’s answer was filed on May 24,1963. Defendant, more than 4 months later, October 10, 1963, filed demand for jury trial and paid the statutory fee.

Const 1908, art 2, § 13, provided for jury trials in civil actions as follows:

“The right of trial by jury shall remain, but shall be deemed to be waived in all civil cases unless demanded by one of the parties in such manner as shall be prescribed by law.”

The pertinent portions of GCR. 1963, 508.2(1) and 508.4 provide as follows:

“Actions Commenced in Circuit Courts. Any party may demand a trial by jury of any issue so triable of right by filing a demand therefor in writing at any time after the commencement of the action and not later than 30 days after the filing of the answer or a reply filed within the time prescribed. Such demand may be indorsed on a pleading of a party if notice of the demand is included in the entitlement of the pleading. * * *
“4. Waiver; Withdrawal. The failure of a party to file a demand as required by this rule or to deposit the jury fee by the close of the pretrial conference constitutes waiver by him of trial by jury. A waiver of trial by jury is not revoked by an amendment of a pleading asserting only a claim or defense arising out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading. A demand for trial by jury as herein provided may not be withdrawn without the consent, expressed in writing or in court, of the parties or their attorneys.”

The defendant having failed to comply with the court rule, the trial court by order filed June 8,1964, granted plaintiff’s motion to strike defendant’s demand for jury trial. Defendant thereupon filed an application for leave to appeal from said order in the Supreme Court. On September 3, 1964, the Supreme Court denied the application for leave to appeal stating “as the circuit court did not abuse its discretion in entering the order from which appeal is sought.”

Defendant maintains that the Constitution mandates, by the use of the words “prescribed by law,” a legislative act providing the time and manner of demanding a trial by jury.

The only applicable statute, CLS 1961, § 600.2537 (Stat Ann 1962 Rev § 27A.2537), provides:

“In every case where a trial by jury is demanded, the party making the demand shall, at the time of filing the demand, pay to the clerk of the court the sum of $3.00. Failure to pay the fee within the time provided in the court rules constitutes a waiver of the right to a jury trial.”

Defendant maintains that he complied with the aforementioned statute and the court rule is not operative and therefore he was wrongfully denied his right to a jury trial.

The 1908 Constitution provided in article 7, § 5 as follows:

“The Supreme Court shall by general rules establish, modify, and amend the practice in such Court and in all other courts of record, and simplify the same.” (Emphasis supplied.)

The legislature has specifically given rulemaking power to the Supreme Court in the revised judicature act, CLS 1961, § 600.223 (Stat Ann 1962 Rev § 27A.223) as follows:

“The Supreme Court has authority to promulgate and amend general rules governing practices and procedure in the Supreme Court and all other courts of record, including but not limited to authority”.

The manner and time for demanding a trial by jury is procedural within the meaning of the Constitution and RJA, and the adoption of GCR 1963, 508 was a proper exercise of the rulemaking power of the Supreme Court.

One question remains: does GCR 1963, 508 qualify as a law within the meaning of the term “prescribed by law” under Const 1908, art 2, § 13?

In 52 CJS, Law, p 1025, “law” is defined as follows :

“The law of a state is to be found in its statutory and constitutional enactments as interpreted by its courts and, in the absence of statute law, in the rulings of its courts.”

In 20 Am Jur 2d, Courts, § 85, p 447, the authors stated:

“Rules of court properly promulgated, and not exceeding the limitation of the court’s rulemaking power, have the force of law, and are tantamount in this respect to rules incorporated in statutes.”

We conclude that the only effective statute failed to provide the manner and time for demanding trial by jury and therefore G-CR 1963, 508 constitutes the law governing the same and satisfies the constitutional requirements.

2. Did the trial court make proper findings of fact in accordance with the requirements of GCB 1963, 517.If

The provision of the court rule provides:

“In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment. It will be sufficient if the court makes brief, definite, and pertinent findings and conclusions upon the contested matters without over elaboration of detail or particularization of facts. If an opinion or memorandum decision is filed, it will be sufficient if the findings and conclusions appear therein. The clerk shall notify the attorneys for both parties of the findings of the court. Findings of fact and conclusions of law are unnecessary on decisions of motions except as provided in subrule 504.2. The findings of a circuit court commissioner, to the extent that the court adopts them, shall be considered as findings of the court. Requests for findings are not necessary for purposes of review. No exception need be taken to any finding or decision. Findings of fact shall not be set aside unless clearly erroneous. In the application of this principle regard shall be given to the special opportunity of the trial court to judge the credibility of those witnesses who appear before it.”

The opinion of the trial court is as follows:

“In this cause plaintiff’s decedent, age 5, was killed on May 2, 1962, when the automobile in which he was riding was struck by defendant’s automobile on a country road intersection located in Midland county, Michigan. Defendant was proceeding south on Sasse road. The decedent was a passenger in a car traveling west on East Kent road, which is a stop road at this intersection. The case was submitted to the court without a jury and at the close of plaintiff’s case defendant made a motion for involuntary dismissal which was denied and then defendant made an offer of proof which was withdrawn. At this point defendant rested and renewed the motion for involuntary dismissal. The motion was taken under consideration and briefs from counsel were requested.
“On consideration of the arguments and briefs submitted, this court is of the opinion that plaintiff has presented a prima facie case and is entitled to a verdict. The parties herein must concede that the testimony is to be considered in the light most favorable to the plaintiff and all of the facts, stated and physical, must be taken into consideration.
“In this type of case we must also take into consideration all of the elements of damage announced in Wycko v. Gnodtke (1960), 361 Mich 331, and affirmed in Currie v. Fiting (1965), 375 Mich 440. When this is done, it is the verdict of this court that plaintiff’s damage amounts to $15,721.40 plus interest from the date of decedent’s passing on.
“A judgment in accordance with this verdict may be entered against defendant.”

Now it is true that prior to the effective date of G-CR 1963 and at the time of the accident upon which this action is based, Court Rule No 37, § 11 (b)(c), (1945) provided:

“No special findings shall he required, hut it shall be sufficient for the trial judge to find generally for or against the several parties.
“The trial judge shall sign and file, or dictate to the stenographer, an opinion in which he shall set forth his decision and the substance of the judgment with the concise statement of his reasons therefor, and where he awards damages, the manner in which he has determined the amount.”

The trial of this case took place in November, 1964, and GrCR 1963, 517.1 is controlling. We find in the authors’ comments in 2 Honigman and Hawkins, Michigan Court Rules Annotated (2d ed), p 592, the following:

“Under the former statute, parties might request special findings of fact in cases tried without a jury. CL 1948, §618.14 (Stat Ann 1962 Rev §27.994). However, former Rule 37(11) modified the statute by providing that special findings were not required and that it would be sufficient for the trial judge to find generally for or against the several parties. The judge was directed to file an opinion which set forth his reasons for the judgment, but failure to comply was not reversible error, and the Supreme Court on appeal would assume that every fact necessary to support the judgment had been found, if there was sufficient evidence to sustain such a finding.
“In cases tried without a jury, Rule 517 now makes findings of fact by the court compulsory, whereas in former practice such findings were, in effect, discretionary with the trial court. The new Rule continues the option as between making the findings of fact separately or including them in an opinion or memorandum.
“Since Rule 517 is based upon Federal Rule 52(a), it may be presumed that the purpose of the Michigan rule is the same as that underlying the Federal rule. This purpose has been stated as follows:
“ ‘The purpose of Rule 52(a) is to aid the appellate court by affording it clear understanding of the ground or basis of the decision of the trial court. Another purpose of requiring findings of fact and conclusions of law is to make definite just what is decided by the case in order to apply the doctrines of estoppel and res judicata to future cases. Finally, and possibly most important, the requirement that findings of fact be made is intended to evoke care on the part of the trial judge in ascertaining the facts.’ Barron and Holtzoff, Federal Practice and Procedure, § 1121, at pp 481, 482.”

A careful review of the record reveals that there were facts in the record upon which the trial judge could find liability. However, the facts were in controversy and therefore there was a need for them to be determined.

We conclude that the trial judge was required to make findings- of fact under the effective court rule and his failure so to do requires remand for new trial.

Other issues raised by defendant need not be discussed in view of this determination.

Reversed and remanded for new trial. Costs to defendant-appellant, assessment of same to await determination on the merits.

Burns and Wise, JJ., concurred.

       See, currently, CLS 1961, § 600.2922, as amended by PA 1965, No 146 (Stat Aim 1965 Cum Supp § 27A.2922).

       GCB 1963, 14, January 1, 1963.

       May 2, 1962,

      Eed Civ Proe Buie 52(a), 28 TJSC (1964 ed), App.—Beporter.

       Inasmuch as Judge O’Neill has retired and this Court does not have power of appointment of the trial judge to complete his work in the case, a new trial has been ordered.


text:
    LINEBAUGH v. TOWNES.
    1. Contracts — Partial Performance — Damages.
    Award to defendant homeowners of damages equal to 10% of building contract price plus cost of correcting unworkmanlike parts of work, on defendant’s counterclaim in action by plaintiff builder for balance of contract price, where testimony was that building was 90% completed, would have the effect of allowing double damages to defendants only if the 10% credit for the part of contract uncompleted was already included in the credit given for improperly performed work.
    2. Appeal and Error — Bindings of Pact.
    Judgment of trial court on counterclaim of defendants in action by plaintiff builder against defendant homeowners is affirmed, where specific findings of fact made by trial judge are not questioned by plaintiff and a review of the record, including the findings of fact, does not persuade Court of Appeals that the trial court was clearly in error (GCR 1963, 517.1).
    References for Points in Headnotes
    [1] 13 Am Jur 2d, Building and Construction Contracts §§ 44-4§*
    £2] 5 Am Jur 2d, Appeal and Error § 839 et sey.

    Appeal from Washtenaw; Breakey (James B., Jr.), J.
    Submitted Division 2 June 8, 1967, at Lansing.
    (Docket No. 493.)
    Decided December 7, 1967.
    Declaration by Paul E. Linebaugh against Henry K. Townes, Jr., and Marjorie C. Townes for balance due on a borne building contract. Defendants counterclaimed. Judgment for defendants. Plaintiff appeals.
    Affirmed.

      Crippen & Dever, for plaintiff.

      John W. Bae, for defendants.
   J. H. Gillis, J.

Plaintiff-builder sued defendants-owners for tbe balance allegedly due on a borne building contract. Tbe defendants counterclaimed on tbe grounds tbat tbe contract was not completed and, additionally, tbat a portion of tbe completed work was not performed in a workmanlike manner, wbicb required tbe defendants to bave corrections made. A nonjury trial resulted in judgment for tbe defendants. Following a motion filed by tbe plaintiff to amend tbe judgment or grant a new trial, tbe defendants stipulated as to certain credits and tbe court denied tbe plaintiff’s motion but allowed tbe stipulated credits, leaving a balance due defendants of $1,275.07 plus costs. Plaintiff appeals.

Tbe sole issue raised on appeal is whether tbe defendants are entitled to a credit against tbe construction contract of an amount equal to 10% of tbe total contract. This issue arises from plaintiff’s claim tbat tbe court erred in crediting defendants with 10% of tbe contract price after having allowed tbe defendants credit for items of work not performed in a workmanlike manner. Plaintiff contends tbat in effect tbe trial judge allowed tbe defendants double damages. This claim can be established only by demonstrating tbat tbe 10% credit given for tbe portion of tbe contract not completed already bad been accounted for in tbe credit given for items of improperly performed work.

Tbe trial judge made specific findings of fact not questioned by plaintiff. A review of tbe record, including tbe findings made by tbe trial court, does not persuade us that tbe court was clearly in error. GrCR 1963, 517.1.

Affirmed. Costs to appellees.

Lesinski, C. J., and Quinn, J., concurred.

       At trial the county building inspector testified that the building, according to the plans and specifications, was approximately 90% completed by the plaintiff.


author: Burns, J.

text:
    PEOPLE v. McGRANDY.
    1. Homicide — Self-Defense—Retreat.
    Defendant must do all which is reasonably in his power to avoid the necessity of extreme resistance, by retreating where retreat is safe, to be able to assert self-defense as justification when charged with homicide.
    2. Same — Self-Defense—Retreat—Home.
    A man is not obliged to retreat if assaulted in his dwelling, but may use such means as are absolutely necessary to repel the assailant from his house, or to prevent his forcible entry, even to taking life.
    3. Same — Self-Defense—Retreat—Home.
    Retreat from defendant’s own house when defendant is assaulted by spouse, held, not necessary to enable defendant to plead self-defense as justification for killing spouse (CL 1948, § 750,321).
    References for Points in Headnotes
    [1] 26 Am Jur, Homieide § 149 et seq.

    [2, 3] 26 Am Jur, Homicide § 155 et seq.

    Appeal from Saginaw; Borchard (Fred J.), J.
    Submitted Division 3 June 8, 1967, at Grand Rapids.
    (Docket No. 1,716.)
    Decided December 7, 1967.

      Edna Marie McGrandy was convicted of manslaughter.
    Reversed and remanded for new trial.

      Frank J. Kelley, Attorney General, Robert A. Derengo ski, Solicitor General, Robert B. Currie, Prosecuting Attorney, and Bruce J. Scorsone, Chief Assistant Prosecuting Attorney, for the people.

      William J. Ginster, for the defendant.
   Burns, J.

A circuit court jury found Mrs. Edna Marie McGrandy guilty of manslaughter. CL 1948, § 750.321 (Stat Ann 1954 Rev § 28.553). The facts of this case for the purposes of this opinion can he stated as follows:

On May 1, 1965, defendant and her husband, both of whom had been out drinking much beer and some whiskey, returned to their second floor apartment. Without getting into the details of what occurred upon their arrival, suffice it to say that Mr. Mc-Grandy stood in the kitchen doorway with a loaded rifle in his hands. It is defendant’s claim that her husband cocked the rifle and intended to use it on her. Mrs. McGrandy then grabbed a butcher knife, .and in an alleged attempt to “get him out of my way so I [Mrs. McGrandy] could get out,” Mr. McGrandy was fatally stabbed.

Defendant might have avoided a confrontation with her husband by retreating out another kitchen doorway which led to the apartment’s rear porch and stairway. The jury was made very aware of this alternative route of escape.

In support of defendant’s argument of self-defense counsel for defendant, citing People v. Stallworth (1961), 364 Mich. 528, requested a jury instruction that a person is not obliged to retreat from his dwelling. The trial court, however, gave the following instruction:

“Now, in justification of the offense herein charged, the defendant interposed a plea of self-defense. Under certain circumstances this is a good defense. To make a plea of self-defense, it must appear that the defendant was without fault on her part. If she herself was the aggressor in the conflict, she cannot invoke the doctrine of self-defense as an excuse for the killing unless she was at that time, as she saw it, in imminent danger of losing her own life or suffering some grievous bodily injury, and there ivas no way open for her to retreat, as she saw it. Self-defense will not justify the taking of a human life unless you jurors shall be satisfied from the testimony, first that the defendant was not the aggressor bringing on the difficulties as has just been pointed out. Secondly, that there existed at the time of striking the fatal blow in Marie McGfrandy’s mind a present and impending necessity to save herself from death or some great bodily harm, and third, there must be no way open ivhereby she coulcl have retreated, as it appeared to her, cit that time, t.o a place of safety and thus avoid the conflict.
“Unless you find all three of these elements in the case, then the plea of self-defense fails.” (Emphasis supplied.)

The general rule in cases where self-defense is asserted is that the defendant must do “all which is reasonably in his power to avoid the necessity of extreme resistance, by retreating where retreat is safe.” Pond v. People (1860), 8 Mich 150, 176. The Pond Case, also recognized an exception to this rule (p 177):

“A man is not, however, obliged to retreat if assaulted in Ms dwelling, but may use such means as are absolutely necessary to repel the assailant from Ms bouse, or to prevent Ms forcible entry, even to the taking of life.”

There is a split of authority throughout the country in the applicability of this exception when the assailant and the assailed share the same living quarters where the alleged attack occurred. Justice Cardozo in People v. Tomlins (1914), 213 NY 240 (107 NE 496, Ann Cas 1916c, 916) reasoned:

“It is not now and never has been the law that a man assailed in his own dwelling is bound to retreat. If assailed there, he may stand his ground and resist the attack. He is under no duty to take to the fields and the highways, a fugitive from Ms own home. * * * The rule is the same whether the attack proceeds from some other occupant or from an intruder. It was so adjudged in Jones v. State (1884), 76 Ala 8, 14. ‘Why,’ it was there inquired, ‘should one retreat from his own house, when assailed by a partner or cotenant, any more than when assailed by a stranger who is lawfully upon the premises? Whither shall he flee, and how far, and when may he be permitted to return?’ ”

Also, see Watts v. State (1912), 177 Ala 24 (59 So 270); State v. Peeper (1924), 199 Iowa 432 (200 NW 732); State v. Phillips (1936), 38 Del 24 (187 A 721); and State v. Grantham (1953), 224 SC 41 (77 SE2d 291).

In People v. Stallworth, supra, the defendant killed her husband by stabbing him when the deceased attempted to put her out of the home forcibly. The Court quoted from the Pond Case, supra:

“ ‘A man is not * * * obliged to retreat if assaulted in his own dwelling.’ ”

The Court continued:

“If the testimony of Mrs. Stallworth at the trial which bore directly on the fatal episode were to be accepted at face value, it would appear to meet the tests of self-defense spelled out above.”

In our opinion the Stallworth Case, supra, aligns Michigan jurisprudential thinking with the above cited authorities.

The failure to give defendant’s requested instruction resulted in prejudicial error. Defendant’s other assignments of error are without merit or do not require consideration because of our disposition of the case.

Reversed and remanded for new trial.

Holbrook, P. J., and McGregor, J., concurred.

       Defense counsel's statement of facts consisted of 39 pages of almost uninterrupted quoted material from the transcript. This practice of setting forth select rambling samples of testimony must, be criticized as violating GCR. 1963, 813.2 (as amended in 373 Mich ly). We strongly urge the few lawyers who are prone to statingfaets in such a manner to comply with the rule before warnings, precipitate into more drastic action or our part.


author: McG-regor, J.

text:
    NICKEL v. NICKEL.
    1. Divorce — Separate Maintenance — De Novo Review — Evidence.
    A divorce or separate maintenance action is heard de novo on appeal, and while it is the duty of the Court of Appeals to weigh the evidence and reaeh an independent conclusion, it should not reverse the judgment of the trial court unless convinced that it would have reached a different conclusion had it occupied the position of the trial court under like circumstances, giving consideration to the obvious advantage of the trial court in seeing and hearing the parties and their witnesses.
    References for Points in Headnotes
    5 Am Jur 2d, Appeal and Error §§ 703, 882.
    24 Am Jur 2d, Divorce and Separation § 228.
    24 Am Jur 2d, Divorce and Separation § 32 et seq.

    [4, 5] 24 Am Jur 2d, Divorce and Separation § 226 et seq.

      2. Same — Separate Maintenance — Evidence—Comparative Guilt.
    Comparative guilt justifies the granting of divorce or separate maintenance only when the guilt of one party so outweighs the guilt of the other as to justify the grant of such relief.
    3. Same — -Separate Maintenance — Physical Cruelty — Mental Cruelty.
    . Mental or physical abuse, sufficiently aggravated, is reason for the granting of divorce or separate maintenance.
    4. Same — Separate Maintenance — -Recrimination.
    Neither party is entitled to a judgment of divorce or separate maintenance where the reeord establishes that each is guilty of recrimination (CL 1948, § 552.10).
    5. Same — -Separate Maintenance — Statutes—Recrimination.
    Dismissal of complaint for divorce and counterclaim for separate ■ maintenance held, proper, where record demonstrates that both parties were guilty of extreme eruelty toward each other in a substantial degree, since the statute prohibits a severance of the marriage bond where each party is guilty of the same misconduct (CL 1948, § 552.10).
    Appeal from Wayne; Wise (Jobn M.), J.
    Submitted Division 2 June 6, 1967, at Lansing.
    (Docket No. 880.)
    Decided December 7, 1967.
    Leave to appeal denied February 22, 1968.
    .See 380 Mich 759.
    Complaint by Stewart Newman Nickel against Violet Mae Nickel for absolute divorce. Counterclaim by defendant for separate maintenance. Botli complaint and counterclaim were dismissed. Defendant appeals.
    Affirmed.

      Ivan E. Barris, for plaintiff.

      Berry, Hopson & Francis (Edward T. Kelley, of counsel), for defendant.
   McG-regor, J.

Plaintiff-husband, a physician, brought this suit for divorce on the grounds .of extreme cruelty. The defendant-wife, a biochemist, filed a counterclaim, seeking separate maintenance on the same grounds. After approximately 15 days of hearing, the trial court dismissed both actions .because it found that neither party was so free .of fault as to be entitled to relief. Godfrey v. Godfrey (1956), 347 Mich 130. Defendant appeals the dismissal of her counterclaim.

It is unnecessary to relate the myriad allegations and counter-allegations of extreme cruelty. It is sufficient to state that upon a thorough reading of the voluminous transcript, it is established that the trial court’s finding of extreme cruelty on the part of both parties is correct.

A divorce or separate maintenance case is heard de novo by this Court, and it is our duty to weigh the evidence and reach an independent conclusion. However, we should not reverse unless convinced that we would have reached a conclusion different from that of the trial court, had we occupied the position of that court under like circumstances, with the obvious advantage of seeing and hearing the parties and their witnesses. Applying the rule of compared fault found in Boter v. Boter (1953), 338 Mich 187, the comparative guilt of one does not sufficiently outweigh the other to justify a judgment of divorce or a judgment of separate maintenance. Mental, or physical abuse, if sufficiently ’aggravated, is reason for legal relief, and the record abounds with evidence thereof by both parties. Their conduct is recriminatory and bars relief. The irreconcilable testimony shows little left of the essential elements of a workable marriage, i.e., communication, understanding, respect, tenderness, tolerance, and a sense of humor. Even if the trial court refused to apply the rule of comparative fault, a careful reading of the transcript fails to show that such refusal was error. From the record, it is apparent that both parties are in pari clelicto, i.e., guilty of extreme and repeated cruelty, at least in a substantial degree toward the other, and under Michigan’s present divorce laws, neither is entitled to a severance of the marriage bond.

Since both parties were guilty of extreme cruelty, it follows that the dismissal of both actions was mandatory. CL 1948, § 552.10 (Stat Ann 1957 Rev § 25.90). Sovereign v. Sovereign (1956), 347 Mich 205. See, also, Gundry v. Gundry (1965), 1 Mich App 475; Kirstein v. Kirstein (1967), 7 Mich App 316.

Affirmed. Costs to appellee.

Quinn, P. J., and J. H. Gillis, J., concurred.