text
stringlengths 12
234k
| embeddings
sequencelengths 1.02k
1.02k
|
|---|---|
Marston, J.
The bill in this case was filed to foreclose a mortgage. A statutory foreclosure for a small amount of interest was made in 1878, and a sale made thereunder to complainant. In November, 1878, the defendant visited the complainant for the ostensible purpose of redeeming from this sale, and obtained from him a quit-claim deed of the premises, and defendant now claims that he thereby obtained the same discharged from this mortgage, and that even if he did hot complainant cannot ask to have the deed set aside without refunding the consideration paid therefor. It also appears that some defect existed in defendant’s title to a part of the premises and one object in view in obtaining this deed, if not the principal one, was to'perfect this' title.
It was not claimed on the argument, as it could not be successfully, that complainant supposed by giving this deed he was doing any more than what defendant could have-obtained from paying the money to the register. Indeed it was conceded that the whole object spoken of at the time was but a redemption from the mortgage sale. It is too-clear to bear discussion that the defendant cannot now defeat complainant’s mortgage by this deed.
It is true as claimed tliat complainant’s act in foreclosing for such a small instalment and adding thereby so much costs to his claim was unjust and oppressive — and that had defence been made thereto at the time, by tender or otherwise, his claim would not have been sustained. This question does not now arise and we can give no relief in the present action.
The decree of the court below in favor of complainant for the amount due must be affirmed.
Cooley and Campbell, JJ. concurred. | [
-12,
-4,
6,
22,
28,
-22,
46,
20,
33,
46,
34,
27,
-5,
4,
-4,
10,
7,
-41,
-18,
19,
-52,
-34,
3,
-30,
20,
0,
40,
-39,
-22,
21,
-1,
-8,
-14,
64,
4,
-47,
-19,
-27,
54,
-11,
21,
-23,
29,
0,
-23,
6,
1,
-44,
-17,
-8,
0,
-58,
-14,
-32,
0,
12,
-6,
-2,
-16,
-46,
26,
-13,
-8,
41,
-53,
-10,
-14,
-24,
13,
-40,
-16,
-13,
10,
-68,
27,
-9,
-14,
-13,
-42,
-26,
5,
-64,
45,
-51,
2,
-4,
21,
26,
-51,
13,
-1,
43,
29,
-8,
-16,
70,
-12,
24,
-1,
49,
-5,
8,
-25,
12,
-29,
12,
-40,
-67,
-32,
23,
-5,
-5,
13,
-9,
-13,
4,
-32,
-11,
-25,
-13,
28,
-8,
-9,
-44,
-19,
29,
-29,
-25,
-30,
-7,
-18,
-46,
-68,
89,
-21,
-57,
6,
-7,
-14,
-22,
-27,
-33,
8,
-93,
-23,
-11,
47,
-22,
24,
-15,
-10,
26,
2,
35,
8,
-36,
-2,
-15,
-14,
-77,
34,
-8,
-12,
16,
7,
18,
-9,
12,
20,
20,
13,
7,
-27,
-4,
7,
18,
18,
-44,
-6,
-49,
-3,
7,
16,
0,
30,
-18,
-2,
-1,
41,
-20,
2,
17,
-18,
-5,
0,
-22,
2,
-7,
10,
2,
-53,
-38,
-4,
14,
6,
-32,
12,
-44,
21,
11,
-38,
-3,
-24,
-20,
-68,
29,
5,
-33,
-6,
-10,
14,
44,
-36,
39,
-62,
-19,
-31,
8,
42,
27,
-44,
39,
10,
-15,
-9,
1,
23,
16,
8,
-14,
-10,
30,
-16,
8,
-46,
7,
-3,
36,
20,
3,
-23,
-22,
-18,
29,
-21,
-13,
-15,
-1,
-18,
-22,
2,
19,
-32,
-22,
54,
-29,
34,
0,
27,
14,
7,
22,
28,
61,
-30,
-24,
-40,
-33,
-60,
24,
27,
15,
21,
43,
-40,
2,
25,
28,
6,
-7,
52,
-73,
9,
-11,
7,
59,
-35,
-10,
9,
9,
-26,
-73,
11,
11,
10,
-23,
-7,
-6,
3,
1,
6,
-13,
27,
21,
41,
4,
-39,
-29,
24,
-8,
47,
-5,
37,
-37,
13,
44,
50,
-41,
-28,
42,
-5,
-12,
-13,
51,
23,
37,
22,
-29,
-23,
-11,
10,
8,
-18,
-2,
19,
5,
-32,
-34,
-24,
34,
-51,
74,
-30,
38,
22,
27,
-4,
-16,
-34,
31,
43,
0,
-14,
-34,
32,
-17,
1,
-71,
25,
37,
0,
21,
-1,
-20,
-39,
18,
-28,
3,
24,
22,
7,
-5,
12,
21,
32,
43,
-14,
-41,
1,
-6,
-42,
1,
27,
-9,
-5,
-34,
-8,
5,
-39,
-4,
10,
20,
-27,
-17,
-75,
12,
25,
11,
-32,
26,
17,
26,
-9,
-6,
-36,
6,
29,
-30,
44,
-29,
25,
-8,
7,
20,
-34,
-28,
20,
25,
-4,
-17,
-8,
30,
0,
-20,
6,
18,
-8,
-3,
-23,
25,
-26,
-9,
-9,
27,
6,
12,
-70,
12,
54,
-11,
-44,
18,
16,
8,
13,
40,
20,
4,
-6,
6,
47,
-51,
-4,
-21,
20,
-52,
5,
-39,
18,
-21,
3,
1,
43,
-15,
-16,
4,
1,
4,
-30,
-41,
20,
32,
18,
35,
-25,
-4,
-50,
-37,
4,
-21,
16,
9,
53,
28,
0,
-25,
-28,
-31,
-21,
9,
17,
46,
25,
-3,
26,
-3,
0,
-15,
48,
81,
-42,
42,
35,
20,
0,
49,
34,
-9,
29,
24,
1,
-27,
-63,
-58,
-31,
-28,
18,
25,
15,
-33,
16,
50,
0,
-26,
-36,
46,
2,
21,
54,
-55,
-51,
52,
-10,
42,
-40,
26,
-9,
-47,
2,
57,
9,
-8,
24,
44,
-14,
22,
-10,
-35,
18,
4,
-18,
-24,
21,
-5,
31,
-33,
53,
-71,
-40,
1,
-2,
-3,
-6,
4,
-19,
-38,
17,
-48,
-10,
2,
-78,
2,
1,
-27,
28,
9,
-11,
39,
30,
22,
-26,
4,
8,
-20,
-62,
-59,
-29,
31,
-19,
17,
-34,
-3,
-15,
-5,
19,
-7,
-10,
1,
-2,
10,
-4,
16,
-22,
51,
-52,
15,
29,
-5,
29,
-2,
46,
42,
-10,
-40,
-40,
-22,
31,
-16,
7,
17,
-7,
-9,
47,
15,
-36,
36,
-31,
7,
-48,
-21,
3,
-4,
-42,
16,
-11,
43,
-31,
-3,
40,
-7,
-10,
24,
-2,
17,
54,
-3,
0,
-31,
54,
-30,
62,
-70,
11,
40,
10,
19,
43,
27,
-6,
14,
-5,
-47,
53,
-8,
0,
-9,
-31,
10,
2,
-23,
14,
-41,
34,
16,
-16,
5,
-2,
-25,
28,
46,
70,
-34,
-11,
-6,
-25,
5,
12,
49,
33,
34,
81,
-59,
30,
28,
5,
29,
-2,
11,
0,
10,
23,
95,
39,
-14,
-1,
-3,
22,
-16,
-35,
-1,
27,
-62,
63,
-45,
5,
-43,
34,
-13,
-5,
15,
6,
-48,
-1,
25,
-32,
11,
25,
-2,
39,
6,
-67,
9,
-7,
-9,
53,
-4,
11,
35,
10,
18,
47,
-62,
5,
22,
13,
-21,
-42,
19,
-13,
-24,
-3,
19,
-26,
3,
48,
-23,
-45,
-38,
26,
-38,
-29,
-20,
-5,
-40,
5,
28,
17,
-11,
45,
-8,
11,
-54,
-41,
50,
-14,
-35,
11,
12,
66,
9,
20,
32,
-23,
13,
-37,
8,
-25,
-25,
-11,
12,
-36,
0,
-10,
-15,
39,
31,
-29,
-3,
-18,
-50,
8,
-53,
-39,
-23,
6,
-5,
17,
48,
-29,
7,
9,
41,
8,
0,
10,
9,
0,
29,
-21,
41,
38,
-39,
9,
57,
24,
-32,
-24,
-16,
2,
-18,
-80,
-10,
7,
36,
3,
-45,
-29,
7,
-21,
-18,
-13,
-3,
16,
24,
-44,
-29,
-1,
-10,
21,
-31,
25,
32,
-11,
-11,
32,
-5,
-4,
71,
11,
45,
0,
-1,
-19,
30,
-16,
22,
15,
-55,
11,
-3,
23,
-10,
-34,
73,
-29,
6,
21,
-30,
-10,
32,
-18,
13,
-12,
29,
44,
0,
-4,
-60,
28,
-35,
24,
-21,
-30,
-8,
4,
4,
-2,
11,
11,
34,
15,
-2,
18,
-64,
-32,
61,
-4,
-31,
-1,
-20,
1,
-13,
-42,
-13,
-3,
-39,
27,
-13,
-37,
-8,
-23,
14,
-6,
61,
-7,
-64,
-6,
-13,
5,
43,
23,
-20,
25,
48,
-38,
5,
20,
-13,
8,
8,
-13,
5,
33,
-4,
3,
26,
-42,
-48,
-70,
0,
-14,
-28,
-1,
-45,
42,
49,
13,
29,
-39,
-33,
42,
9,
-9,
-11,
3,
-19,
24,
4,
-36,
17,
26,
-15,
10,
35,
-58,
12,
55,
16,
-28,
-7,
8,
50,
3,
17,
-1,
-59,
6,
43,
5,
-8,
1,
-8,
1,
-20,
36,
-21,
14,
62,
10,
-100,
-45,
-10,
42,
61,
-28,
-5,
-54,
40,
-12,
49,
68,
22,
1,
22
] |
Marston, J.
We need not critically examine the several provisions of the statute relating to garnishee proceedings in justice’s court, as we are clearly of opinion that the reason advanced in Sievers v. Woodburn Sarven Wheel Co. 43 Mich. 275, against garnishing a judgment rendered by a justice, is equally applicable here.
The judgment must be affirmed with costs.
Cooley and Campbell, JJ. concurred. | [
-9,
31,
9,
18,
3,
34,
38,
-9,
-30,
19,
19,
-33,
30,
-33,
-3,
-23,
17,
-34,
10,
7,
38,
-18,
10,
-19,
12,
80,
35,
44,
0,
14,
-71,
10,
0,
62,
-43,
-63,
-33,
31,
16,
-27,
-16,
-14,
22,
5,
-30,
36,
33,
-33,
10,
-40,
-9,
6,
-64,
-31,
11,
94,
-18,
43,
-20,
-6,
22,
14,
-1,
-1,
0,
2,
20,
-25,
9,
-15,
0,
0,
27,
-18,
55,
8,
59,
25,
-27,
9,
-8,
-2,
-10,
-31,
0,
24,
-2,
16,
1,
-42,
-50,
58,
-10,
-10,
6,
13,
-36,
-18,
25,
53,
-58,
-2,
-16,
39,
-12,
-23,
-34,
-42,
-15,
28,
-26,
-21,
38,
-52,
3,
-40,
-49,
-8,
-34,
11,
24,
2,
17,
30,
-29,
27,
-13,
-44,
-8,
1,
25,
-2,
-22,
49,
37,
22,
-7,
40,
-37,
-14,
0,
42,
27,
6,
24,
-11,
38,
-17,
-28,
-13,
-34,
21,
-28,
-36,
11,
-9,
-6,
-81,
44,
-32,
-3,
44,
-12,
43,
5,
-10,
14,
32,
21,
44,
-12,
-2,
-2,
7,
72,
6,
-24,
-36,
2,
19,
-12,
44,
18,
-1,
30,
22,
-46,
45,
14,
-24,
-38,
16,
-7,
-20,
-25,
28,
62,
7,
3,
2,
-7,
-32,
-57,
-2,
46,
-22,
13,
-57,
-80,
56,
-45,
47,
-63,
-49,
-28,
48,
-21,
-20,
-19,
-15,
18,
21,
13,
-23,
4,
0,
-51,
35,
89,
-8,
-52,
11,
33,
3,
21,
-5,
4,
10,
14,
7,
-34,
4,
-31,
-24,
-11,
18,
26,
0,
0,
10,
14,
-5,
28,
-19,
-16,
-90,
15,
12,
-13,
-20,
62,
80,
-25,
-14,
-54,
-23,
26,
42,
-30,
27,
-15,
15,
42,
36,
18,
-20,
-14,
41,
-28,
0,
5,
24,
-42,
11,
-3,
-22,
-10,
12,
7,
22,
23,
-9,
-12,
48,
43,
33,
-40,
-15,
-3,
13,
7,
-32,
12,
21,
8,
-27,
-64,
-66,
-27,
-29,
6,
6,
-9,
13,
4,
34,
-73,
19,
53,
9,
-3,
33,
18,
-64,
19,
63,
35,
-71,
14,
25,
-24,
-2,
9,
-16,
36,
-28,
69,
3,
10,
-8,
8,
-28,
-40,
-29,
-52,
0,
-23,
23,
12,
-10,
-4,
61,
-19,
69,
42,
-41,
-30,
-11,
-16,
30,
23,
5,
48,
-15,
4,
29,
-4,
-34,
1,
35,
25,
-9,
-40,
-18,
-54,
-5,
-6,
-2,
1,
45,
-31,
-39,
-12,
-20,
32,
-3,
-14,
18,
-71,
-36,
-9,
-2,
-5,
4,
-40,
-15,
-72,
-38,
-11,
18,
-32,
39,
12,
-27,
-28,
-29,
-31,
-23,
23,
-17,
-25,
-34,
-29,
70,
-13,
-58,
-12,
3,
-20,
-77,
30,
1,
18,
13,
12,
-21,
40,
19,
-23,
53,
-22,
23,
25,
-1,
21,
34,
-8,
-22,
44,
-24,
-15,
-29,
-2,
3,
-8,
-2,
-15,
38,
58,
-16,
51,
-8,
8,
-11,
-24,
-29,
-22,
-48,
29,
12,
-33,
-21,
-20,
-25,
-43,
-9,
2,
-9,
58,
-19,
-51,
15,
-24,
0,
-32,
-15,
-25,
36,
-21,
28,
24,
38,
15,
11,
-33,
30,
-78,
-43,
12,
-80,
-23,
26,
0,
-27,
18,
-17,
-13,
4,
-38,
37,
3,
18,
6,
-56,
22,
-34,
-6,
-18,
17,
41,
0,
64,
67,
-12,
20,
55,
-9,
-15,
19,
10,
37,
-46,
-35,
16,
-3,
53,
-11,
-8,
10,
-17,
9,
54,
12,
11,
22,
43,
22,
-10,
57,
-49,
-58,
27,
7,
1,
-5,
28,
-15,
-37,
3,
31,
-30,
-12,
36,
-15,
0,
5,
1,
17,
39,
-32,
10,
-6,
-6,
7,
68,
-9,
33,
-11,
-6,
-57,
5,
-20,
0,
17,
-11,
-42,
41,
0,
-12,
-63,
-18,
22,
-3,
-35,
-32,
11,
-6,
4,
16,
-12,
-51,
27,
10,
3,
-75,
-25,
-42,
-9,
40,
38,
-8,
19,
9,
-16,
-26,
-2,
26,
-12,
8,
0,
28,
1,
-30,
-9,
-22,
-11,
-22,
-28,
12,
6,
-3,
-15,
-26,
-30,
24,
31,
-6,
-23,
-10,
14,
-20,
26,
-44,
12,
-69,
33,
-35,
12,
-88,
-28,
-3,
9,
12,
-25,
67,
-1,
-58,
43,
-6,
9,
44,
49,
-2,
-2,
-22,
16,
32,
-15,
-8,
-47,
19,
-26,
11,
26,
-54,
49,
-20,
54,
43,
35,
34,
-36,
39,
4,
11,
-19,
11,
19,
-13,
-21,
-49,
-17,
20,
-23,
-36,
32,
2,
6,
23,
-42,
9,
41,
-23,
-25,
29,
-2,
43,
42,
9,
2,
13,
-61,
-8,
26,
-14,
9,
-8,
-27,
44,
11,
-24,
5,
-35,
17,
20,
32,
-14,
2,
-34,
0,
-16,
-48,
15,
-2,
-7,
-48,
-13,
-19,
-13,
33,
-24,
-3,
4,
46,
23,
34,
-6,
-58,
-69,
38,
-8,
40,
-5,
36,
-7,
-9,
1,
43,
-22,
-3,
39,
47,
15,
31,
16,
-10,
41,
-30,
-13,
6,
-22,
-18,
14,
31,
19,
5,
0,
0,
-20,
-12,
-15,
-36,
23,
18,
9,
-20,
-8,
-29,
33,
-27,
34,
-67,
-34,
41,
-48,
-60,
13,
-15,
-53,
38,
21,
43,
8,
17,
26,
-7,
-34,
28,
5,
-10,
0,
18,
22,
-33,
16,
4,
0,
-2,
49,
7,
18,
-4,
-10,
-40,
-4,
-27,
-30,
-10,
-52,
11,
7,
2,
-19,
29,
0,
21,
-13,
-6,
-82,
35,
33,
-22,
-52,
50,
17,
4,
-6,
15,
53,
6,
-28,
-29,
18,
33,
-28,
62,
0,
26,
-44,
40,
-13,
4,
-12,
30,
31,
-36,
-30,
-81,
18,
48,
48,
0,
-21,
-23,
29,
15,
-27,
-5,
-7,
-50,
38,
54,
12,
-21,
-17,
-9,
46,
12,
2,
6,
23,
-57,
-12,
29,
12,
59,
-2,
-39,
-14,
20,
23,
-60,
36,
32,
23,
-5,
-15,
-36,
49,
-15,
-35,
-28,
-28,
33,
-19,
0,
-31,
15,
0,
46,
19,
57,
36,
9,
43,
31,
-47,
-13,
11,
-4,
45,
32,
-9,
16,
-25,
32,
14,
-12,
-63,
-18,
-37,
-14,
37,
29,
0,
-39,
20,
-14,
0,
-1,
-7,
-16,
-9,
17,
-28,
-19,
0,
18,
-21,
16,
-30,
-9,
-15,
23,
-49,
-36,
-24,
-20,
-15,
44,
-44,
-2,
-6,
-2,
4,
22,
-29,
-4,
23,
0,
22,
49,
-22,
-13,
48,
-14,
41,
-37,
-25,
29,
14,
-10,
-38,
61,
-36,
-7,
-7,
-2,
-42,
27,
-7,
9,
19,
-11,
-48,
-8,
-48,
10,
-28,
-16,
-18,
23,
-17,
-4,
-16,
-5,
-3,
59,
24,
-52,
-42,
6,
17,
34,
-35,
-32,
-5,
-16,
-33,
60,
28,
29,
-6,
24
] |
Campbell, J.
Plaintiff sued defendant for not furnish' ing work as agreed. The substance of the complaint was-that an agreement was made whereby plaintiff was to set up in. a room in defendant’s match factory the appliances necessary for doing their printing, and that he was to have room and power free for a year, and to have the printing of 17,000-sheets of labels a day, and job work in addition, amounting beyond the label printing to at least $5.30 a day. That this amount of work was not furnished while the defendant did business, and that during the year the defendants sold out to another company, and plaintiff lost the work and the office privileges thereby and thereafter.
The defendant denies the substance of the contract, and claims also that the work was not done by plaintiff alone,, but by his firm.
Many errors are assigned, but the argument has been narrowed down to a few of them, and defendant claims the contract shown is fatally variant from the one alleged, and renders the errors immaterial if otherwise sufficient.
Upon the question of variance, we observe that no point seems to have been made -on it below, and further that while the evidence was contradictory there was in our opinion no material variance beyond amendment in the plaintiff’s ease. The chief controversy was on the facts.
The contract was verbal, and made, if at all, with T. C. Owen, as president of defendant. As it was the result of conversations between the parties, we do not think there was error in allowing all the conversation between them prior to the contract and relating to plaintiff’s business to be shown. It all had some tendency to explain their relations concerning the negotiation.
Objection was made to certain testimony given by T. O. Owen concerning a personal interview several weeks after the contract was alleged to have been made, in which plaintiff, who is his brother, was anxious to provide for some maturing paper, and some calculation was made as to how much work the defendant would furnish, and how much plaintiff could get outside, — as a basis for ascertaining the prospects of saving money to meet the paper if renewed. The amount of work likely to come in from the -company was very much less than the sum agreed.
Defendant claims this was in the nature of an admission of the amount he had a right to expect or would be satisfied with. But T. C. Owen expressly testifies that in this matter he was acting as a brother, and did not represent the defendant. If this is so, we do not see how the fact that defendant was not furnishing or at that time likely to furnish all the work claimed to have been agreed upon, tends to show there was no agreement.
We think it was entirely competent to show in mitigation of damages any work which plaintiff had done or been able to obtain from other persons. We do not see how this case differs from any other case in which the person deprived of one employment has not lost his time entirely by the deprivation.
There was also testimony given to show how many matches could be labelled from 17,000 sheets containing each a certain number. This would be of no consequence if it appeared how many packages there were to label, as any one could figure it up for himself, and no correct computation could do any harm.
But it was also allowed to defendant to show by the testimony of the witness Force that defendant made three sizes of boxes, and that the average of their work was two hundred gross, that would take 72 labels to -a gross, and their results were 200 gross a day, while the 17,000 sheets of the number of labels propounded would at this rate mark 7000 gross of matches a day. On this basis he undertook to swear it would supply a dozen of the largest factories in the country; but -he showed no knowledge except from hearsay either of the work of other factories or of how many boxes contained the quantity allowed to the ordinary gross of boxes.
This testimony was not proper. It appeared on the face of it to be a conclusion, even as to the defendant’s own work, without proper data. As every gross contains 1M, the allowance of 72 labels to the gross is evidently on the basis of a departure from the standard unit of boxes. At the rate of 144 boxes to the gross, the number of gross required to use up the labels would be reduced one-half, and the four factories first named by him would require more than double the number of labels furnished by 17,000 sheets. It is obvious that the effect of this testimony on the probability of the defendant’s contracting so largely was greatly prejudicial to the plaintiff as showing it to be extravagant. It was not only hearsay, but it did not show on what method of packing and labelling even the result from that hearsay was based. We are not prepared to say that evidence that plaintiff- knew what amount of business was to be done by defendant, and what amount of labels it would need, would not be pertinent as rendering it unlikely that a contract could have been intended which greatly exceeded this calculation. But evidence of the disproportion would have no force unless plaintiff knew it to be extravagant. And evidence such as was given by Force without the elements of calculation is not much better than guess-work, and so far as it was hearsay was doubly inadmissible.
There was some other testimony concerning transactions foreign to this contract and unknown to plaintiff the pertinency of which does not appear. And we are of opinion that after defendant had introduced testimony to connect others than the plaintiff with the contract, he should have been allowed in rebuttal to show by those persons that they were strangers to it.
The judgment must be reversed with costs and a new trial granted.
Cooley and Marston, JJ. concurred | [
1,
-37,
-13,
-24,
25,
-27,
-2,
-56,
-1,
37,
24,
36,
42,
23,
11,
-25,
10,
26,
33,
-10,
21,
-41,
-42,
-43,
-30,
-22,
-37,
-52,
14,
15,
-19,
36,
-60,
-27,
-4,
43,
6,
-3,
-20,
-35,
3,
-36,
19,
-27,
29,
-15,
12,
7,
40,
-41,
32,
-24,
-8,
-6,
-29,
17,
-7,
23,
-27,
10,
32,
-27,
39,
-37,
-25,
-8,
18,
24,
31,
33,
-24,
10,
44,
-10,
3,
-86,
-33,
-27,
-28,
5,
3,
-5,
-18,
-12,
-11,
54,
3,
9,
7,
-11,
-15,
36,
-4,
32,
-20,
45,
-53,
58,
-17,
24,
3,
40,
-68,
7,
0,
21,
-6,
-26,
-45,
77,
22,
14,
35,
5,
35,
-56,
30,
-27,
-33,
-17,
31,
36,
-13,
13,
-2,
-31,
3,
4,
5,
4,
23,
-1,
-45,
-22,
-17,
18,
31,
30,
-89,
-3,
17,
5,
-26,
25,
-20,
51,
-25,
17,
-84,
-59,
-12,
0,
-12,
32,
-10,
-28,
42,
-40,
20,
-59,
65,
1,
12,
0,
-19,
22,
10,
-11,
-10,
-13,
-33,
4,
-49,
-27,
35,
18,
17,
-48,
23,
-33,
20,
-23,
-26,
-21,
49,
20,
25,
4,
16,
41,
5,
-4,
-69,
-6,
-16,
-13,
15,
20,
3,
-2,
-13,
-54,
-39,
-1,
0,
10,
-10,
-3,
-15,
27,
-2,
17,
-41,
-30,
-20,
47,
9,
-28,
-31,
-4,
-67,
-24,
-4,
2,
-28,
-18,
47,
-9,
37,
-4,
-85,
36,
10,
-11,
-29,
-45,
15,
-40,
35,
10,
-60,
-42,
-52,
5,
34,
6,
-6,
1,
-14,
30,
0,
32,
36,
9,
-5,
-55,
-42,
17,
-8,
-4,
-10,
19,
-23,
15,
20,
-58,
-29,
17,
20,
43,
-24,
-44,
-16,
65,
-34,
-55,
-37,
21,
-9,
2,
-4,
6,
-52,
-45,
15,
-17,
35,
-9,
-30,
32,
21,
4,
-29,
-37,
56,
34,
41,
4,
-89,
10,
-19,
-38,
20,
-56,
2,
12,
-37,
-7,
-10,
-6,
-12,
-8,
-48,
-20,
49,
-26,
-27,
5,
-25,
-16,
22,
53,
10,
68,
-31,
-20,
49,
-56,
-15,
-26,
-14,
6,
20,
-53,
-21,
-16,
28,
1,
45,
-21,
35,
37,
-68,
19,
-41,
44,
28,
-48,
-4,
19,
23,
-17,
-30,
-11,
42,
44,
15,
-11,
-31,
39,
33,
-11,
13,
-26,
-37,
11,
-5,
-19,
43,
61,
-37,
-5,
-18,
-39,
-19,
-29,
9,
30,
-23,
34,
12,
-14,
-18,
3,
-3,
36,
11,
1,
-7,
0,
-69,
17,
-3,
15,
-15,
-13,
-11,
-3,
-26,
17,
21,
52,
-5,
-34,
0,
-32,
-37,
16,
-21,
4,
-10,
16,
-19,
2,
-20,
-24,
6,
-12,
18,
45,
17,
-20,
-3,
-13,
27,
-41,
24,
35,
-7,
20,
-29,
-10,
2,
-25,
-21,
19,
-27,
-5,
-50,
33,
-33,
-2,
-51,
9,
27,
1,
-11,
35,
46,
-8,
-9,
-14,
-4,
34,
14,
5,
43,
-19,
68,
1,
-42,
6,
19,
7,
26,
1,
54,
-33,
-27,
40,
-49,
13,
70,
13,
-37,
1,
-24,
-30,
1,
-1,
5,
51,
19,
30,
1,
38,
-13,
-35,
4,
53,
25,
12,
2,
-11,
10,
48,
-32,
17,
-13,
42,
-54,
-31,
9,
-46,
26,
-32,
24,
-14,
59,
19,
13,
-18,
21,
-47,
-20,
-4,
28,
14,
-10,
1,
45,
7,
-21,
28,
19,
34,
14,
4,
33,
-2,
-13,
42,
6,
-5,
33,
-10,
-8,
-5,
15,
-5,
-25,
30,
4,
42,
-32,
26,
-31,
6,
0,
-20,
-10,
2,
37,
28,
-29,
58,
16,
10,
37,
17,
21,
-13,
-5,
25,
41,
-15,
9,
33,
39,
9,
-16,
-20,
15,
25,
-10,
-11,
-10,
10,
22,
-17,
-55,
-12,
42,
-2,
-18,
-52,
46,
27,
-1,
27,
-20,
1,
-26,
-37,
24,
-15,
39,
0,
26,
31,
0,
-27,
-28,
-16,
-46,
-1,
-13,
2,
7,
-6,
-12,
-15,
-34,
-51,
-4,
-10,
-24,
-49,
25,
11,
31,
15,
-30,
14,
45,
14,
44,
-10,
12,
24,
5,
-67,
10,
50,
-2,
-3,
29,
26,
-58,
-13,
14,
-14,
3,
23,
-9,
9,
-1,
0,
-12,
-40,
22,
32,
45,
11,
-65,
4,
-8,
-27,
-30,
9,
10,
-51,
-37,
25,
-12,
7,
39,
-1,
-4,
3,
2,
9,
35,
3,
0,
-24,
10,
12,
11,
9,
54,
6,
71,
-16,
25,
40,
0,
-66,
-12,
-21,
-9,
29,
-3,
-32,
11,
2,
7,
-34,
-7,
-25,
-33,
-8,
10,
10,
52,
15,
-28,
-20,
30,
24,
53,
-29,
26,
16,
17,
41,
-4,
24,
-13,
-5,
74,
-15,
41,
10,
-50,
35,
-12,
35,
-1,
-26,
22,
-30,
-3,
-15,
1,
22,
0,
-60,
-15,
43,
3,
-36,
-29,
-10,
6,
14,
40,
-23,
-21,
26,
-22,
31,
16,
0,
11,
-17,
-32,
-36,
-26,
-11,
3,
-8,
23,
-41,
0,
3,
0,
-16,
39,
-27,
-13,
-22,
27,
-27,
14,
34,
41,
22,
-8,
21,
29,
-1,
-28,
19,
-47,
-9,
27,
40,
16,
-2,
-22,
-12,
-7,
2,
-41,
-12,
-17,
30,
-53,
-39,
2,
-9,
36,
22,
-1,
-1,
10,
-21,
0,
-19,
-32,
4,
10,
-23,
-24,
-5,
-44,
-1,
-33,
23,
-42,
5,
-31,
30,
43,
-68,
-31,
18,
-14,
17,
26,
-41,
4,
43,
17,
44,
2,
-12,
-10,
-11,
-3,
-13,
-10,
43,
7,
-13,
-53,
41,
-19,
-33,
-5,
-4,
-21,
-24,
2,
-14,
-10,
-29,
34,
14,
6,
2,
-45,
20,
17,
-18,
-18,
8,
38,
-29,
49,
-6,
31,
-52,
-4,
14,
-78,
15,
31,
37,
9,
33,
39,
44,
2,
-22,
8,
-19,
34,
0,
-10,
-36,
35,
-22,
32,
-24,
38,
-15,
37,
-11,
27,
46,
64,
53,
26,
-11,
-11,
-72,
-7,
-34,
21,
-40,
-3,
24,
-5,
34,
-16,
58,
0,
-18,
3,
-63,
-11,
19,
39,
18,
56,
33,
0,
36,
38,
-29,
34,
8,
-4,
-33,
30,
-61,
9,
-41,
5,
-72,
6,
-66,
-10,
-38,
-22,
-31,
1,
31,
-70,
52,
0,
34,
-71,
0,
-24,
-26,
-26,
-12,
13,
28,
-42,
-1,
8,
-11,
45,
34,
-37,
-54,
9,
-3,
5,
-25,
-7,
30,
17,
-31,
10,
35,
23,
-42,
-53,
26,
6,
-13,
42,
0,
33,
-12,
0,
93,
44,
21,
11,
-68,
0,
-3,
10,
-33,
1,
-26,
-21,
6,
22,
-23,
24,
45,
-19,
-8,
-13,
52,
13,
20,
30,
15,
-54,
12,
-25,
-26,
45,
20,
6,
14
] |
McGregor, J.
Testimony established that on Jánnary 6, 1967, the defendant went to his estranged wife’s place of employment and there shot and killed her. His flight from Michigan took him to Ohio and subsequently to Philadelphia, Pennsylvania, where he took a hotel room. While in this hotel, defendant entered the adjoining room, stole a bank passbook, and closed out the account in the name of the account holder. Having received a check in the name of the account holder for the funds in the account, defendant forged the account holder’s signature and endorsed the check to himself. He was apprehended by the Philadelphia police when he attempted to cash this check. After his arrest, defendant was questioned by a Philadelphia police detective on January 20,1967. Evidence presented reveals that at the time of his arrest, the Philadelphia police were not cognizant of the Michigan shooting.
Upon his arrest, defendant was taken to the police station and put into a room with a bank detective and a police detective. Defendant’s first request was to see the FBI; the police detective indicated that this request would not be granted and advised the defendant to tell him about the questioned check. At this point, the defendant confessed to the shooting of his wife, in Farmington, Michigan. The detective gave defendant his constitutional warnings and then left to call the Farmington, Michigan, township police department to verify the defendant’s story. Upon receiving corroboration, the detective returned to the interrogation room and asked defendant to tell him again what happened to his wife, and also what happened in Philadelphia.
For the second time, defendant related the story of shooting his wife; however, when a stenographer was brought in, shortly thereafter, and defendant was asked to tell again what had happened in Michigan, he replied that he did not want to talk about the incident but would wait until he returned to Michigan.
At trial, the second oral confession was admitted into evidence after a Walker hearing was held. Defendant was charged, tried, and convicted of first-degree murder; from this verdict, he appeals.
Defendant questions whether his second oral confession could be used against him, since it was made after he was given his constitutional warnings, pursuant to Miranda v. Arizona (1966), 384 US 436 (86 S Ct 1602, 16 L Ed 2d 694, 10 ALR 3d 974), but without apprising him of the fact that it was uncertain whether the confession made before these warnings were given was admissible as evidence. The trial court ruled in its Walker hearing that the second confession met constitutional standards and was admissible. At the time of the initiation of this case, GCR 1963, 785.5 required the people to give notice of intent to introduce into evidence a defendant’s confessions or admissions. Such notice was filed with the court clerk in this case and made a part of the record on file on February 28,1967. Trial was not had until December 12, 1967. It appears that the defendant had ample time to file proper motion to suppress the statements, but such motion was not made, notwithstanding a Walker hearing.
The prosecution argues that when defendant was taken into custody, the police were totally unaware that he had committed or was sought for any crime other than the one for which he was arrested. During their discussion with the defendant concerning the alleged forged check, defendant made his request to see the FBI; after this request was refused, he purportedly made a “spontaneous” confession to the effect that he had shot his wife. The prosecution contends that the interrogation, as envisioned by Miranda, had not begun, and that defendant’s rights to these warnings had not yet arisen; that, in addition, his first confession would have been admissible in any event, and that it could not have been error to admit this subsequent confession.
This Court must make a determination whether defendant’s first confession was elicited in violation of defendant’s constitutional rights, as enunciated by Miranda and its progeny.
Defendant was arrested for closing out a bank account and for forging the account owner’s signature on the back of the check; he was also being held for possession of an unregistered handgun. There was no doubt in anyone’s mind that the defendant had actually committed these crimes. Testimony of the police officer indicated that, during his conversation with the defendant concerning events entirely foreign to the Michigan murder, the defendant asked for the FBI, and that the Philadelphia police then explained that the bank forgery charge was their concern. Detective Boslund testified that, while he was talking with the defendant about one charge, the defendant suddenly started talking about another matter entirely, namely, his fatal shooting of his wife:
“I started questioning him about the crime in Philadelphia, and he said he didn’t want to talk to me about this, he wanted to talk to the FBI. I stated to him that this crime had nothing to do with the FBI and that I only wanted to talk to him about this crime, and it kept going on in this vein, and finally I said, ‘Well, you’re going to have to talk to me. I’m not going to get the FBI for you. You’re just going to have to talk to me about it,’ and at this time is when he made the spontaneous statement, after this little * * * .”
While the record is not clear as to the trial court’s consideration of the first confession, the mere fact that the first confession may be inadmissible does not ipso facto render the second inadmissible. The question then becomes:
“whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Wong Sun v. United States (1963), 371 US 471, 488 (83 S Ct 407, 417; 9 L Ed 2d 441, 455), quoting from Maguire, Evidence of Guilt (1959), 221.
Applying the above standard as enunciated in Wong Sun, we find that the now challenged statement was not the result of any prior illegality, but was the product of the defendant’s own purge of conscience.
When the police started to question Merlo, they were unaware of any crime having been committed by him in Michigan; it appears from the record that he was cognizant of the fact that the police were not aware of his Michigan crime. Without hesitation on the part of the defendant or solicitation by the police concerning the crime presently charged, the defendant related the shooting of his wife. After having been given his constitutional warnings, the defendant again, without hesitation, related the killing of his wife. The record is devoid of any showing that the second confession was in any way linked to the first. The defendant’s statement was voluntary, and his actions and testimony lead this Court to conclude that the second statement was purged of any prior illegality, if any existed.
The trial court’s ruling on the Walker hearing complies with the constitutional rights of the defendant. The record discloses no exploitation of the first confession in the taking of the second confession. In the first confession, the law enforcement officers had posed no questions to the defendant concerning the instant crime, as envisioned by Miranda. The second confession was not inextricably entwined with the first, as shown by the record and by the trial court’s determination in the Walker hearing.
In Commonwealth v. Moody (1968), 429 Pa 30 (239 A2d 409), it was held:
“that where defendant while in custody and without warnings as to his right to remain silent and that anything he said might be used against him confessed to officer that he had killed his wife and thereafter defendant was given warnings # * * subsequent written confession was not the result of exploitation or prior illegality and was admissible.”
The defendant claims that the trial court erred in denying the defendant’s motion to dismiss, after the people’s opening statement, since the statement failed to state the facts to be relied upon in proving premeditation.
GCB. 1963, 507.1 provides:
“Opening Statements: Before the introduction of any evidence, the attorney for the party who is to commence the evidence shall make a full and fair statement of Ms case and the facts he intends to prove.”
Comments on this rule are found in 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 394:
“Each side is entitled to have the opening statement of the other fairly disclose the nature of the claim or defense being made. What constitutes a fair opening statement is largely a matter within the discretion of the trial court.”
In People v. Clayton (1926), 236 Mich 692, 695, the Court, in considering a similar rule requiring an opening statement by the parties, held that the omission to make such statement was not reversible error when its omission is not shown to have been prejudicial. In another Supreme Court case, People v. Koharski (1913), 177 Mich 194, 196, the Court said of the former rule:
“We are of the opinion that the rule is directory and that it was promulgated for the purpose of having the plaintiff’s case outlined in advance so that the jury could better see the force and the bearing of the evidence as it came in, and while we think it is a proper rule to enforce, we are not prepared to say that the refusal to enforce it is reversible error, where its omission is not shown to have been prejudicial to respondent’s case.”
In the instant case, the prosecution read the information charging the defendant with murder in the first degree. He then briefly outlined his theory of the case, which reads:
“Now, in brief what we’re going to show is that Mr. Merlo walked in the beauty shop in which his wife was working, asked to see her, walked into a back room with her ont of the sight of at least the rest of the patrons and workers in the beauty shop, talked to her for a few moments, that Sharon came back out, began to work on one of her customers, that she worked on this customer, the defendant then came out of the back room, walked over and shot her.
“We’re going to show that when he walked in the beauty shop that he had the gun, that when he walked out of the back room he walked out of the back room with the intention of killing her; that after he shot her he fled the scene and was apprehended some time later in Philadelphia.”
Although prior cases have indicated that the failure to make an opening statement does not constitute reversible error, the prosecution here did make a statement. In view of the prosecution’s opening statement, there was no doubt that the prosecution would attempt to prove premeditation. It is obvious from the indorsed res gestae witnesses and this opening statement that the defense could easily have surmised the manner in which the element would be proven.
In conclusion, this defendant was not prejudiced or surprised by the lack of a more concise statement.
The defendant’s claims regarding non-constitutional error are not worthy of extensive treatment. In the course of the direct examination of defendant, defense counsel asked several questions regarding alleged declarations and acts of the victim’s mother. It was in order to rebut such testimony that the prosecution moved that the deceased’s mother be indorsed as a rebuttal witness. Defendant claims that the court erred in allowing the prosecution to indorse the victim’s mother as a rebuttal witness. Although we agree that it is a substantial right to have witnesses indorsed prior to trial, we find that the trial court did not abuse its discretion under all of the circumstances, in allowing this witness to testify. People v. Davis (1955), 343 Mich 348, 361; People v. Keyes (1968), 9 Mich App 482.
Defendant assigns as error the sufficiency of the evidence presented on the issue of premeditation. A review of the record reveals that there was sufficient testimony which, if believed, would permit the jury to find premeditation.
The murder of his wife by the defendant was overwhelmingly established; at trial, defendant’s admissions were substantially identical to statements made in his prior confession.
We have reviewed defendant’s other alleged errors and find that they do not show reversible error. There was no miscarriage of justice here.
“No judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case, * * * unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.” CL 1948, § 769.26 (Stat Ann 1954 Rev § 28.1096).
Judgment of conviction affirmed.
All concurred.
People v. Walker (On Rehearing, 1965), 374 Mich 331.
“The prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda v. Arizona (1966), 384 US 436, 444 (86 S Ct 1602, 1612; 16 L Ed 2d 694, 706; 10 ALR3d 974, 993). (Emphasis added.)
“On the trial of a cause it shall be the duty of the plaintiff’s eounsel, before offering evidence to support the issue on his part, to make a full and fair statement of his ease and of the facts which he expeets to prove.” Circuit Court Rule 24. | [
57,
-6,
2,
11,
-23,
-69,
-64,
25,
-6,
3,
22,
-17,
24,
-15,
28,
16,
12,
-1,
45,
-35,
10,
-123,
-56,
63,
7,
17,
34,
40,
-53,
17,
30,
59,
42,
-35,
20,
-39,
56,
-10,
6,
16,
1,
-21,
2,
-17,
-30,
-19,
1,
-18,
0,
-13,
46,
-23,
21,
42,
17,
-5,
-5,
19,
4,
22,
9,
-8,
-43,
-18,
-24,
-51,
57,
33,
-8,
9,
16,
-49,
-1,
0,
0,
16,
-20,
-3,
9,
15,
-26,
17,
13,
10,
-41,
-56,
-33,
-57,
-4,
-31,
39,
-17,
-7,
0,
12,
-49,
-25,
15,
-11,
12,
-46,
-30,
19,
-17,
17,
16,
28,
-32,
17,
-27,
-2,
15,
63,
0,
16,
-60,
-8,
23,
-32,
13,
-28,
-8,
31,
1,
22,
-48,
-28,
-14,
53,
-16,
17,
11,
17,
-10,
-32,
-1,
5,
-3,
11,
0,
-22,
11,
20,
5,
26,
26,
-25,
9,
27,
16,
-45,
-27,
19,
21,
38,
-9,
-30,
-22,
-24,
32,
-10,
-26,
29,
2,
-54,
10,
-41,
7,
-6,
-49,
-10,
31,
12,
-7,
16,
-10,
-34,
59,
24,
8,
-1,
-1,
22,
0,
-6,
-21,
-31,
-34,
23,
-26,
-27,
10,
-26,
11,
43,
69,
-30,
-44,
2,
-1,
60,
-30,
62,
-7,
21,
-19,
52,
-7,
-3,
-21,
-26,
-53,
-7,
-27,
-54,
-75,
-13,
6,
29,
-36,
-20,
-29,
48,
26,
-12,
-7,
-35,
12,
-68,
-15,
54,
-29,
6,
5,
-26,
12,
-13,
6,
5,
-22,
-15,
-30,
43,
-16,
43,
30,
-25,
-18,
-10,
-5,
-10,
26,
-29,
19,
-35,
-15,
-17,
-18,
58,
38,
-34,
16,
-3,
42,
-33,
46,
-41,
-1,
-45,
-15,
10,
-21,
12,
7,
6,
-26,
-30,
37,
-32,
34,
61,
12,
-32,
0,
-2,
-45,
-44,
46,
-4,
-8,
44,
-32,
-34,
0,
32,
-40,
40,
-42,
-88,
28,
68,
23,
8,
-34,
-15,
40,
53,
-13,
-17,
-17,
72,
11,
18,
21,
65,
-44,
16,
7,
-9,
14,
-35,
-44,
5,
-14,
38,
-20,
-2,
-9,
11,
-18,
-10,
42,
13,
23,
-21,
-42,
-23,
6,
-6,
10,
8,
-41,
1,
0,
-17,
13,
-12,
39,
-83,
-71,
46,
-47,
8,
-17,
6,
18,
10,
38,
46,
-53,
43,
6,
-84,
19,
-9,
-27,
-7,
-46,
0,
61,
43,
-55,
-35,
22,
2,
0,
34,
0,
-15,
49,
17,
30,
0,
-18,
-15,
-8,
-36,
-86,
-13,
12,
-35,
19,
3,
-45,
25,
-52,
13,
16,
14,
12,
6,
1,
65,
32,
-42,
-52,
-14,
38,
-29,
-18,
3,
-10,
18,
-14,
-25,
-34,
-5,
7,
5,
-61,
14,
-4,
26,
-30,
67,
-8,
-34,
13,
23,
-26,
52,
15,
14,
-20,
16,
-11,
-77,
9,
32,
-7,
17,
-57,
-52,
40,
26,
5,
-61,
-45,
24,
17,
25,
-14,
-21,
-3,
-66,
41,
1,
5,
-2,
0,
-1,
-33,
-6,
0,
17,
-5,
-39,
-58,
0,
7,
63,
-53,
-55,
61,
-45,
-47,
25,
10,
-4,
-48,
23,
-3,
-15,
-14,
-67,
-55,
-24,
-63,
42,
25,
3,
-11,
-10,
44,
-18,
42,
-19,
-2,
5,
-25,
-19,
0,
18,
54,
24,
4,
10,
-2,
-5,
30,
15,
5,
-63,
-1,
-22,
-58,
22,
-12,
11,
31,
26,
52,
27,
8,
-15,
-3,
5,
-35,
-50,
28,
33,
15,
16,
-18,
53,
-36,
-37,
22,
14,
-6,
49,
2,
20,
30,
-13,
-11,
3,
-24,
-18,
39,
45,
-37,
46,
-35,
-22,
-41,
39,
13,
-46,
-49,
-36,
-2,
32,
23,
1,
-22,
-25,
57,
54,
-58,
-2,
29,
18,
30,
9,
45,
12,
35,
-16,
83,
53,
34,
7,
31,
-25,
28,
59,
34,
-24,
-1,
-38,
13,
37,
27,
52,
-8,
-46,
-26,
-13,
-16,
66,
-50,
-52,
33,
53,
-20,
36,
-23,
27,
-18,
29,
0,
-20,
-64,
-70,
5,
-57,
-38,
-13,
8,
22,
4,
-39,
1,
-8,
6,
11,
27,
20,
9,
-7,
-47,
-1,
24,
-4,
-7,
19,
-45,
-42,
0,
-17,
29,
8,
17,
-9,
-4,
-54,
-30,
-6,
-13,
-10,
-28,
31,
14,
2,
-32,
-4,
57,
40,
39,
-5,
47,
-41,
-5,
19,
15,
35,
-60,
29,
3,
23,
-10,
10,
-49,
-6,
-7,
-21,
-24,
29,
-42,
-12,
-35,
22,
-2,
21,
60,
-17,
-24,
-42,
-11,
-19,
15,
3,
27,
28,
-2,
42,
31,
-56,
-11,
38,
-2,
-88,
14,
-18,
13,
33,
-33,
-22,
-16,
-41,
37,
23,
30,
-21,
-5,
-22,
-7,
-9,
58,
-29,
29,
0,
0,
-8,
13,
22,
-9,
39,
8,
29,
16,
4,
-16,
14,
30,
-39,
10,
-5,
12,
-10,
21,
-11,
-47,
11,
-60,
-49,
-30,
33,
-10,
55,
59,
48,
15,
-28,
37,
39,
-12,
-45,
-17,
16,
67,
-25,
-44,
-65,
2,
20,
18,
78,
-20,
-68,
-29,
1,
40,
-79,
63,
2,
-35,
50,
0,
22,
45,
-21,
-37,
42,
-6,
-62,
21,
34,
30,
-16,
-22,
-21,
28,
-30,
44,
63,
10,
22,
24,
-11,
18,
8,
3,
29,
-22,
33,
17,
-28,
2,
34,
31,
-11,
-20,
-62,
25,
12,
-62,
17,
0,
30,
2,
-6,
-60,
-22,
22,
2,
-46,
-58,
-18,
-23,
37,
-5,
-19,
-41,
14,
15,
-76,
-51,
18,
20,
49,
-7,
14,
9,
26,
43,
22,
47,
21,
4,
24,
-11,
-32,
-28,
7,
-12,
66,
2,
28,
-10,
-17,
-41,
-65,
4,
31,
0,
26,
33,
51,
23,
-17,
23,
38,
7,
59,
36,
-17,
-11,
-9,
-36,
-20,
43,
-27,
4,
6,
-6,
-33,
-4,
-3,
-8,
52,
-6,
-24,
-33,
-43,
31,
73,
14,
10,
82,
17,
-61,
-14,
39,
-20,
80,
15,
14,
18,
-1,
-2,
22,
10,
-23,
27,
-17,
10,
44,
-5,
-13,
-30,
3,
12,
7,
-23,
2,
-23,
-26,
11,
48,
-1,
-20,
-75,
2,
13,
40,
-35,
9,
47,
2,
-9,
-46,
39,
-16,
52,
-33,
-47,
5,
0,
3,
-25,
5,
18,
-2,
21,
19,
-43,
6,
-6,
24,
32,
-11,
-22,
38,
-13,
31,
-6,
31,
1,
17,
-50,
-27,
-66,
52,
-10,
36,
35,
-9,
-95,
21,
-1,
-61,
24,
1,
-12,
56,
-19,
-29,
-11,
-32,
-28,
-47,
24,
17,
38,
45,
-50,
22,
-51,
20,
-3,
3,
61,
-9,
-22,
26,
-27,
1,
-4,
-7,
-6,
46,
-59,
38,
22,
15,
40,
4,
23,
-54,
-17,
-47,
44
] |
J. H. Gillis, P. J.
The defendant, Lee Richard De Cair, was charged with having committed the crime of unlawfully driving away a motor vehicle under MCLA § 750.413 (Stat Ann 1954 Rev § 28.645). He was tried in the Wayne County Circuit Court and convicted as charged. On appeal, the sole issue pre sented is whether the circuit court had jurisdiction to try the action. It is defendant’s contention that he could only be tried in the Recorder’s Court for the city of Detroit.
To constitute the offense, possession must be taken, wilfully and without authority, followed by a driving or taking away of the vehicle in question. People v. Smith (1921), 213 Mich 351; People v. Limon (1966), 4 Mich App 440. In the present case, the evidence tended to show that defendant took possession of the car without authority while it was parked in front of a residence located on Fenmore Street in the city of Detroit. The testimony of two State Police officers established the remaining element of the crime charged: namely, that defendant drove or took away the car in question. These officers testified that on October 27,1968, the date of the alleged offense, they observed the car being driven by defendant on Telegraph Road in Redford Township.
The officers’ testimony, if believed, established that one of the essential elements of the crime, a driving or taking away of the vehicle, occurred in Wayne County, since Redford Township is in that county. Moreover, the act of driving the car away after taking possession, although initiated in Detroit, was continuous in nature and extended beyond the corporate limits of the city of Detroit.
Under the circumstances, we hold that defendant was lawfully tried in the Wayne County Circuit Court. By statute, the legislature has provided that whenever a felony consists of two or more acts done in the perpetration thereof, the people may prosecute in any county in which any one of which such acts were committed. MCLA § 762.8 (Stat Ann 1954 Rev § 28.851). This statute applies here. The offense is a multiple-element offense; it consists of “more than one act, each of which acts, or the effect of such acts, * * * constitute [s] an unlawful element of the offense, without the presence of which the offense could not be consummated.” Annotation, 30 ALR2d 1265, 1269. See also, 4 Wharton’s Criminal Law & Procedure, § 1510, p 98. Since one of the acts making up the felony occurred in Wayne County and continued beyond the corporate limits of the city of Detroit, defendant could be prosecuted in the circuit court. Cf. People v. Doe, alias Meyer (1933), 264 Mich 475; People v. Pettijohn (1938), 283 Mich 108.
Nor are we persuaded that MC-LA § 726.11 (Stat Ann 1962 Rev § 27.3561), upon which defendant relies, precludes prosecution, of the offense charged in the Wayne County Circuit Court. As we read the statute, the exclusivity provision is inapplicable here because an essential element of the crime continued beyond the corporate limits of Detroit. See People v. Rosa (1969), 382 Mich 163, 167, 168.
Defendant’s conviction is affirmed.
All concurred. | [
-34,
48,
-12,
-13,
-25,
14,
-3,
1,
-4,
37,
13,
19,
-19,
-15,
17,
0,
33,
64,
4,
-6,
20,
-16,
-8,
-12,
-25,
-32,
25,
1,
-43,
5,
-25,
-65,
43,
5,
7,
11,
47,
-15,
60,
25,
-22,
-4,
2,
35,
11,
3,
6,
-15,
17,
-35,
9,
11,
-24,
19,
-2,
-13,
19,
0,
24,
26,
-12,
-1,
-24,
5,
-30,
14,
-5,
38,
8,
12,
-17,
-42,
-20,
67,
-13,
6,
-20,
10,
13,
19,
32,
20,
4,
-13,
12,
30,
-15,
-20,
-66,
-53,
-18,
12,
-63,
-19,
44,
10,
-13,
-43,
1,
-60,
-44,
0,
-18,
37,
-3,
0,
-34,
-37,
-9,
-33,
16,
21,
28,
-13,
32,
-32,
-8,
-30,
80,
4,
46,
-80,
39,
0,
9,
-31,
-32,
-39,
8,
7,
39,
3,
30,
-32,
-15,
26,
-25,
19,
26,
31,
-8,
11,
39,
0,
63,
-4,
15,
45,
-4,
41,
-59,
11,
20,
21,
-82,
-2,
22,
-28,
-8,
30,
-10,
-31,
8,
-9,
-30,
17,
-78,
31,
-19,
34,
22,
21,
22,
-2,
-1,
0,
-52,
48,
-57,
-13,
-9,
36,
-11,
2,
13,
-35,
-1,
21,
-18,
-38,
11,
35,
-4,
-33,
-4,
77,
7,
15,
-45,
-37,
13,
-48,
-22,
-29,
-9,
-18,
5,
37,
10,
6,
-31,
9,
35,
-11,
11,
-31,
43,
-17,
39,
-15,
22,
-44,
24,
26,
-9,
-13,
-59,
5,
48,
34,
51,
-24,
-16,
26,
-83,
-35,
6,
-51,
12,
44,
18,
37,
29,
-12,
29,
24,
31,
-11,
0,
10,
15,
-41,
16,
-13,
-34,
-20,
37,
-39,
45,
52,
24,
91,
-16,
26,
-17,
5,
7,
8,
-45,
-15,
-92,
4,
-48,
-7,
-38,
-28,
34,
42,
57,
9,
10,
-22,
-17,
30,
69,
71,
-19,
42,
26,
-33,
-18,
-9,
-33,
32,
-46,
23,
64,
-25,
-29,
33,
29,
62,
-48,
17,
-8,
-71,
16,
23,
-61,
36,
25,
8,
-8,
28,
19,
-2,
45,
-21,
36,
12,
-15,
40,
-22,
-1,
-16,
-21,
20,
-10,
-30,
-67,
26,
36,
13,
-30,
-50,
10,
-1,
-1,
-9,
10,
-19,
-63,
-32,
15,
75,
-36,
-1,
35,
-20,
-24,
-5,
-37,
3,
-20,
-13,
6,
-36,
-43,
-12,
-17,
7,
-39,
3,
17,
-14,
-1,
2,
-15,
-24,
39,
22,
-51,
20,
45,
-8,
-26,
-4,
-30,
-12,
10,
-18,
-69,
-13,
5,
27,
-34,
-22,
-36,
-23,
-7,
-24,
12,
3,
13,
8,
-47,
40,
12,
42,
-30,
20,
71,
4,
-8,
-45,
-16,
19,
50,
21,
-25,
-38,
7,
37,
50,
8,
33,
9,
32,
-50,
-32,
23,
58,
-2,
-88,
17,
0,
-22,
8,
-8,
45,
62,
-33,
24,
1,
27,
12,
-44,
-52,
2,
-6,
-21,
-46,
8,
47,
29,
-19,
-56,
-2,
1,
29,
26,
39,
11,
6,
-2,
43,
7,
39,
-25,
-26,
-5,
-46,
-9,
3,
-5,
-29,
-59,
-20,
24,
-16,
-7,
26,
-37,
-21,
-5,
-17,
-5,
16,
3,
39,
-18,
35,
0,
-38,
5,
-20,
-30,
-56,
41,
51,
16,
-18,
15,
36,
48,
-8,
-22,
44,
-20,
13,
35,
24,
-31,
17,
33,
29,
28,
20,
21,
-7,
27,
11,
-25,
41,
-37,
4,
-5,
29,
80,
-10,
-1,
9,
5,
14,
15,
-13,
24,
-41,
-37,
-26,
57,
-31,
-5,
-44,
4,
-6,
-41,
9,
-14,
-26,
16,
20,
-11,
-10,
-20,
-2,
6,
-49,
11,
14,
-31,
19,
16,
-25,
22,
-27,
-6,
-22,
-1,
19,
-33,
0,
41,
3,
44,
-17,
0,
-14,
45,
-13,
-20,
44,
41,
-51,
-27,
-6,
28,
-1,
-53,
-43,
-14,
9,
3,
15,
9,
6,
-8,
-16,
63,
-59,
-3,
23,
6,
-18,
5,
25,
-3,
-5,
-3,
13,
20,
-25,
7,
13,
50,
0,
-17,
-47,
-5,
-18,
53,
5,
-58,
-10,
5,
51,
-42,
28,
0,
22,
-19,
-49,
17,
-3,
17,
-51,
-10,
-31,
-41,
-28,
-29,
-8,
-51,
18,
-5,
-29,
56,
37,
-42,
-29,
-17,
28,
-7,
-9,
42,
52,
-53,
-26,
-41,
-28,
-68,
25,
-36,
-11,
32,
15,
-6,
-71,
29,
-17,
18,
1,
-33,
-32,
3,
-35,
-26,
9,
-2,
-7,
-27,
-13,
53,
24,
-14,
10,
-35,
26,
33,
6,
-21,
3,
-9,
-41,
21,
-16,
-27,
-21,
51,
10,
-8,
48,
22,
-25,
4,
-10,
-12,
35,
-35,
-3,
-23,
31,
14,
6,
-45,
27,
34,
-1,
-4,
-10,
-5,
-8,
-13,
-1,
-18,
21,
34,
-6,
-28,
34,
-21,
-37,
-4,
-39,
36,
-9,
-61,
-49,
-4,
-46,
65,
-26,
-3,
-14,
39,
-5,
28,
23,
-31,
64,
-9,
7,
41,
8,
-2,
-53,
0,
-3,
19,
-16,
3,
12,
81,
26,
-27,
-11,
47,
-12,
-69,
-11,
4,
6,
-16,
-4,
-19,
-36,
-22,
14,
38,
10,
-38,
5,
25,
-21,
-19,
28,
-78,
-1,
-9,
-31,
11,
11,
19,
-22,
-4,
-21,
-40,
-8,
16,
-21,
44,
-13,
15,
-2,
-17,
-7,
39,
-34,
42,
16,
13,
36,
28,
-12,
45,
-5,
20,
17,
16,
3,
30,
50,
-16,
-40,
19,
47,
21,
15,
-39,
-10,
37,
-37,
-15,
-29,
-50,
49,
11,
-18,
-31,
1,
-14,
-5,
19,
40,
-31,
7,
23,
-34,
14,
18,
-10,
24,
0,
19,
-9,
27,
7,
-13,
24,
8,
-28,
38,
-89,
-5,
-10,
35,
27,
29,
9,
-43,
17,
12,
-15,
-29,
-12,
-28,
-24,
-17,
18,
14,
5,
22,
1,
92,
14,
-8,
19,
9,
-47,
19,
64,
-33,
15,
31,
-15,
-44,
3,
-46,
-69,
23,
-5,
-12,
-27,
-26,
-30,
19,
-17,
22,
10,
-80,
-19,
-12,
-14,
0,
25,
13,
7,
6,
-43,
-44,
-42,
-10,
4,
47,
-5,
-17,
-71,
-45,
111,
-18,
39,
42,
4,
-4,
-34,
-34,
-32,
7,
-31,
6,
-71,
17,
-2,
-79,
30,
2,
20,
-28,
12,
-27,
15,
7,
-50,
23,
21,
39,
18,
-40,
-26,
43,
-49,
3,
-10,
1,
-26,
13,
5,
-56,
2,
10,
4,
20,
19,
12,
2,
-4,
-25,
-31,
11,
54,
-45,
19,
1,
27,
49,
-25,
-19,
40,
14,
-15,
-61,
-18,
8,
22,
50,
-21,
-1,
14,
-73,
-3,
-76,
16,
5,
30,
-34,
35,
28,
-14,
0,
-20,
11,
-3,
27,
-11,
56,
-8,
23,
-30,
17,
66,
-19,
35,
-26,
33,
15,
15,
-6,
47,
-55,
0,
-15,
13,
-19,
41
] |
Per Curiam.
Plaintiff Alfred Paparelli purchased a new Cadillac automobile from defendant dealership. Several days after the purchase, while plaintiff and his wife were en route to Florida, the power steering unit malfunctioned. Plaintiff then engaged the services of a mechanic.
As the power steering assembly was being replaced by a mechanic after repair, the mechanic requested plaintiff to assist him in placing and installing the unit. Plaintiff bent over the motor of the car and while holding the assembly, he was told by the repairman to lower it. While lowering it, the plaintiff thought that the repairman, who was underneath the car, did not have a secure hold on the assembly and the plaintiff reached to recapture it, wrenching his neck and causing injury thereto.
The trial court granted a defense motion for summary judgment, finding as a matter of law that the defective power steering unit was not the proximate cause of plaintiff’s injuries and that all reasonable men must conclude likewise.
From this decision, plaintiffs appeal.
In Nielsen v. Henry H. Stevens, Inc. (1962), 368 Mich 216, proximate cause was defined:
“Proximate cause means such a cause as operates to produce particular consequences without the intervention of any independent, unforeseen cause, without which the injury would not have occurred. To make negligence the proximate cause of an injury, the injury must he the natural and probable consequence of a negligent act or omission, which under the circumstances, an ordinary prudent person ought reasonably to have foreseen might probably occur as a result of his negligent act.”
The trial court correctly concluded on the facts of this ease that the proximate cause of plaintiff’s injury was neither the fault of the defendants’ negligence nor their breach of any warranty and that all reasonable men must conclude likewise.
Affirmation would independently he required for the reason that defendant owed plaintiff no duty with regard to unforeseeable and extraneous circumstances. To hold otherwise would make the manufacturer virtually an insurer. See Schneider v. Chrysler Motors Corporation (CA8, 1968), 401 F2d 549.
Affirmed. Costs to appellees. | [
-27,
51,
-27,
26,
15,
-10,
30,
-25,
22,
5,
65,
-49,
-14,
1,
-3,
-1,
25,
-23,
-5,
-15,
6,
-60,
-76,
-53,
-13,
0,
31,
-14,
6,
41,
14,
-5,
-15,
0,
-43,
24,
-14,
48,
-21,
6,
11,
44,
32,
-44,
22,
-5,
18,
-19,
-28,
-24,
9,
5,
-38,
-32,
-13,
6,
57,
42,
-43,
39,
-15,
7,
74,
0,
-55,
38,
-5,
15,
-4,
34,
-51,
15,
35,
-1,
28,
-38,
32,
77,
-9,
-16,
29,
39,
56,
28,
-33,
7,
-51,
10,
-58,
-73,
-37,
-22,
-27,
38,
-36,
15,
-24,
17,
39,
49,
-22,
18,
-2,
-1,
-44,
10,
-27,
-50,
-19,
27,
-29,
58,
-45,
7,
1,
16,
-30,
17,
12,
2,
-41,
13,
27,
-20,
-11,
14,
7,
-10,
-11,
67,
23,
28,
10,
-21,
-12,
-14,
-8,
-46,
-53,
-16,
-15,
11,
-5,
15,
12,
56,
14,
-5,
-2,
-6,
1,
48,
-18,
-18,
-15,
8,
-9,
-15,
49,
7,
-23,
-54,
20,
35,
7,
2,
-17,
47,
-9,
36,
29,
-12,
2,
-72,
27,
-9,
-25,
-10,
-79,
-21,
-19,
-22,
15,
4,
-55,
-24,
-45,
60,
-17,
-38,
10,
-11,
-26,
51,
-9,
3,
-11,
27,
7,
-15,
22,
-46,
-39,
-67,
-17,
15,
-39,
-39,
2,
12,
30,
10,
-67,
-35,
-36,
-19,
53,
26,
10,
15,
36,
-30,
-13,
-10,
3,
-17,
-21,
-33,
4,
19,
16,
6,
-22,
0,
27,
-6,
-24,
-27,
41,
28,
66,
5,
18,
-27,
-28,
-42,
30,
14,
17,
-16,
47,
-24,
33,
-37,
-14,
-37,
-6,
24,
-15,
4,
24,
43,
-49,
27,
-21,
-3,
43,
27,
-45,
-9,
-52,
33,
-6,
0,
-49,
-48,
-57,
31,
58,
52,
-32,
-17,
-16,
-42,
-62,
-7,
16,
38,
0,
19,
26,
-24,
49,
-26,
13,
81,
41,
-38,
-66,
-50,
-6,
-23,
26,
53,
20,
22,
-55,
45,
-53,
34,
-53,
-18,
-32,
6,
2,
12,
0,
19,
-16,
-11,
-19,
70,
-16,
-27,
0,
-48,
37,
-46,
27,
5,
-29,
-9,
-35,
3,
10,
-47,
64,
26,
-1,
25,
15,
6,
14,
-36,
-33,
3,
67,
15,
-25,
10,
-36,
-7,
3,
-48,
-14,
8,
3,
-34,
-15,
45,
20,
-42,
-27,
11,
-3,
13,
12,
-1,
-57,
108,
-3,
-17,
-8,
2,
-20,
-24,
18,
39,
-99,
48,
7,
-19,
10,
-90,
-16,
15,
-56,
10,
-78,
-23,
-17,
-12,
63,
11,
-19,
2,
-35,
-11,
-52,
18,
-7,
34,
-46,
-3,
24,
-72,
35,
-2,
0,
-33,
7,
-43,
40,
46,
-46,
38,
82,
-26,
-33,
-52,
-11,
17,
-34,
-27,
32,
-6,
-1,
0,
-15,
-23,
8,
-28,
46,
0,
17,
27,
-40,
-48,
45,
-20,
-38,
-27,
-32,
-42,
-18,
54,
4,
11,
29,
-31,
57,
-1,
56,
-4,
-3,
19,
72,
-33,
-8,
0,
-29,
-64,
11,
-20,
26,
-31,
-29,
-25,
48,
-26,
-11,
-20,
8,
4,
14,
-15,
-13,
-13,
-24,
-52,
-48,
13,
42,
-40,
-30,
-35,
6,
0,
31,
11,
2,
15,
-3,
-22,
11,
-47,
-26,
32,
-35,
-10,
13,
-3,
-19,
-16,
54,
-58,
10,
-28,
40,
-23,
-20,
-23,
10,
56,
-9,
15,
-29,
8,
30,
17,
-20,
10,
-33,
18,
-13,
-27,
5,
9,
-23,
-44,
59,
-33,
36,
18,
-9,
25,
-12,
-39,
38,
-15,
8,
42,
-4,
-3,
16,
20,
-9,
40,
19,
7,
-47,
-24,
74,
10,
45,
32,
11,
2,
40,
18,
-20,
26,
40,
39,
47,
39,
-12,
-8,
76,
-10,
-23,
36,
0,
1,
-23,
-10,
9,
2,
-77,
-39,
1,
26,
-22,
-30,
-39,
-26,
1,
-34,
43,
-85,
-40,
40,
17,
-9,
67,
6,
14,
-5,
-12,
-23,
-36,
-27,
-30,
19,
54,
-11,
15,
22,
0,
-18,
8,
41,
-29,
-36,
-66,
-25,
-22,
42,
6,
26,
28,
16,
6,
-10,
-19,
13,
1,
-19,
-62,
-47,
15,
29,
-37,
-42,
-48,
24,
46,
33,
-54,
-54,
-14,
12,
18,
-2,
14,
-8,
-4,
54,
-16,
-40,
-63,
30,
-35,
20,
10,
57,
-24,
1,
17,
11,
-23,
-42,
-18,
-39,
32,
30,
-12,
6,
12,
-33,
3,
22,
31,
45,
33,
0,
19,
78,
-19,
3,
-9,
-56,
47,
-24,
20,
-1,
-15,
-10,
54,
-50,
-13,
-5,
31,
-37,
61,
31,
44,
12,
15,
-11,
-2,
-12,
-17,
24,
4,
5,
-24,
1,
69,
-38,
2,
29,
-35,
-11,
-4,
60,
6,
-37,
-43,
-52,
-4,
-20,
-7,
-46,
0,
54,
12,
-1,
-25,
-54,
10,
-25,
-15,
53,
-10,
35,
87,
-17,
2,
-27,
48,
42,
34,
34,
0,
-45,
-41,
7,
36,
12,
-33,
-34,
77,
2,
51,
11,
7,
29,
11,
5,
-12,
8,
18,
26,
4,
40,
-11,
-46,
-39,
-19,
-18,
-7,
30,
-36,
-49,
38,
19,
-52,
10,
-29,
-33,
-19,
14,
50,
-19,
-17,
39,
-16,
23,
30,
68,
14,
9,
0,
16,
-12,
55,
-8,
12,
-17,
8,
0,
39,
-21,
10,
-49,
49,
37,
28,
-21,
22,
-3,
-37,
-21,
-2,
18,
24,
36,
-46,
15,
41,
33,
-40,
-40,
39,
-5,
17,
-39,
5,
13,
32,
-43,
-44,
25,
5,
58,
24,
-22,
-7,
16,
31,
14,
-52,
52,
51,
35,
-11,
17,
13,
4,
3,
-17,
-6,
13,
38,
22,
-38,
32,
-5,
-21,
2,
12,
-18,
1,
10,
0,
4,
86,
-24,
8,
43,
35,
-26,
-30,
18,
22,
14,
-70,
-11,
19,
-6,
19,
-49,
55,
-37,
-24,
-49,
-26,
-69,
70,
27,
-1,
26,
-33,
-30,
14,
-17,
28,
51,
-42,
-59,
53,
-21,
39,
26,
-7,
2,
-23,
-61,
4,
9,
0,
33,
-4,
17,
55,
11,
16,
-9,
19,
31,
5,
5,
12,
-55,
42,
-6,
0,
-32,
1,
2,
-77,
23,
33,
92,
-43,
9,
-25,
-49,
-38,
31,
-31,
35,
38,
-32,
-69,
25,
16,
-35,
42,
-36,
-18,
2,
-10,
48,
-9,
-4,
-49,
8,
-25,
-8,
16,
43,
1,
30,
4,
-48,
-11,
-13,
23,
-9,
-2,
23,
-26,
-10,
0,
10,
-15,
-18,
62,
-39,
-64,
10,
18,
15,
-51,
6,
4,
-64,
-13,
-26,
-19,
9,
37,
-14,
-26,
8,
-15,
24,
20,
12,
-4,
44,
8,
14,
6,
13,
-5,
10,
40,
-21,
78,
-6,
-9,
47,
32,
-26,
-66,
3,
-15,
1,
-12,
24,
1
] |
Per Curiam.
Defendant, James Garland Perkins, was tried in the Macomb County Circuit Court and convicted of feloniously and unlawfully conspiring with Isaac Perkins, Jr., and John David Hicks to commit the crime of first-degree murder. MCLA § 750.157a (Stat Ann 1969 Cum Supp § 28.354[1]).
At preliminary examination, Hicks testified that he had been arrested in March, 1967, along with the victim, Sue Ann Collins, and the defendant on a bad check charge. Sue Ann Collins had testified against Hicks and Perkins at the preliminary examination on that charge. Hicks further testified that defendant told Isaac Perkins, Jr., and Hicks to “go after Sue Ann Collins and bring her back to him, that he was going to kill her.”
On June 12, 1967, John Hicks and Isaac Perkins, Jr., picked up Sue Ann Collins. Instead of bringing her to the defendant, Hicks and Isaac Perkins, Jr., proceeded to kill her by strangulation and. blows to the head.
Hicks testified at the preliminary examination that he and Isaac Perkins, Jr., placed the body in the trunk of the car and returned to the defendant’s residence. He said that the defendant was quite upset and told him to bury the body someplace in the country. Hicks and Isaac Perkins, Jr., took the body to Stoney Creek Park and left it in the dense underbrush, where it was found.
At arraignment upon the information on August 22, 1967, defendant, assisted by counsel, stood mute to the charge. Motion to quash the information predicated on an inadequate preliminary examination was denied by the trial court. Thereafter, conspirator Isaac Perkins, Jr., pled guilty of murder, second degree, and agreed to testify at the trial of the defendant. A jury trial took place on November 2, 1967, at which Isaac Perkins, Jr., testified as to the plan by the defendant and others to get rid of Sue Ann Collins so as to “beat” the check case. After the preliminary examination, John Hicks was charged with murder, first degree, and at the defendant’s trial, he refused to testify. Defendant’s attorney insisted that John Hicks’ preliminary examination testimony be read into the trial record. The jury returned a verdict of guilty.
On November 16, 1967, tbe defendant was sentenced to life imprisonment to be served at the State Prison for Southern Michigan at Jackson.
Upon a careful review of the transcript and record, we find no reversible error.
Affirmed. | [
46,
-7,
-32,
-14,
-18,
-5,
-45,
0,
-5,
-28,
28,
-91,
11,
-96,
12,
-4,
37,
23,
34,
-24,
-31,
-25,
-20,
46,
-18,
-18,
23,
0,
-16,
40,
59,
17,
32,
-58,
46,
-21,
78,
-16,
3,
38,
-59,
3,
-16,
25,
-28,
-17,
13,
-34,
46,
-13,
-45,
-8,
25,
25,
36,
-10,
55,
-30,
-52,
24,
33,
-2,
12,
-3,
-32,
11,
33,
-27,
35,
42,
57,
-5,
0,
14,
27,
8,
-5,
6,
10,
-28,
-4,
58,
2,
-16,
-15,
-63,
-52,
-66,
-23,
13,
15,
6,
-32,
-23,
44,
-15,
-18,
-15,
30,
-6,
2,
-36,
-43,
-28,
29,
-14,
-40,
-3,
-53,
98,
-40,
24,
78,
11,
-58,
-66,
-26,
-25,
-58,
42,
-39,
-12,
0,
7,
-5,
7,
-30,
18,
44,
-17,
-11,
62,
72,
-22,
-17,
12,
5,
-60,
2,
-30,
-24,
-27,
-26,
-6,
24,
9,
-15,
17,
24,
42,
-34,
-33,
-16,
18,
37,
1,
25,
-21,
-29,
49,
6,
-17,
38,
-33,
-33,
0,
-28,
13,
-54,
-51,
-16,
29,
-13,
47,
44,
5,
-56,
13,
0,
-21,
22,
-24,
-8,
36,
-37,
22,
6,
10,
7,
39,
-28,
17,
-34,
-22,
26,
-1,
7,
-32,
-10,
10,
35,
10,
21,
-13,
4,
-49,
-7,
6,
44,
-4,
-2,
-64,
16,
36,
-56,
40,
2,
-23,
24,
4,
-22,
-17,
37,
23,
19,
-41,
42,
26,
-82,
-13,
65,
-27,
5,
-9,
-40,
-17,
-17,
-31,
19,
20,
-25,
-61,
50,
4,
86,
41,
36,
25,
-32,
24,
-17,
13,
5,
55,
-29,
1,
12,
44,
-20,
-21,
-33,
-19,
-46,
3,
-11,
47,
12,
35,
-79,
-9,
-22,
-9,
23,
-7,
-12,
-21,
-53,
58,
18,
-40,
39,
34,
-3,
-25,
31,
-32,
-64,
52,
-40,
-9,
-12,
-18,
-8,
-28,
25,
30,
24,
-43,
51,
17,
7,
15,
26,
-27,
42,
19,
59,
42,
-30,
-4,
58,
50,
-13,
-48,
41,
-65,
-6,
-22,
30,
7,
7,
-23,
-2,
-18,
-28,
-4,
-6,
71,
18,
33,
-8,
23,
-10,
-51,
-24,
13,
-26,
39,
3,
0,
-8,
-4,
-7,
6,
-35,
18,
-4,
79,
-89,
-76,
-5,
-17,
20,
12,
-1,
26,
8,
2,
76,
-21,
2,
-49,
-32,
41,
0,
6,
-1,
-66,
-4,
50,
33,
-2,
-40,
-36,
9,
38,
37,
14,
28,
22,
3,
7,
39,
-13,
19,
-22,
-32,
-12,
22,
72,
-37,
12,
33,
-66,
-8,
-44,
-23,
34,
32,
14,
-42,
7,
1,
23,
-17,
47,
-74,
3,
18,
0,
3,
-13,
68,
27,
-38,
-26,
-3,
-25,
-5,
-12,
-14,
1,
40,
-63,
-17,
-1,
15,
18,
67,
-34,
30,
14,
81,
-46,
29,
21,
-25,
39,
23,
-2,
-36,
-9,
-30,
-31,
-8,
0,
0,
-101,
16,
26,
44,
16,
-17,
-39,
-10,
39,
25,
-3,
-17,
19,
0,
-63,
16,
-54,
47,
9,
-8,
-4,
-23,
-11,
37,
-19,
-47,
-13,
-15,
-5,
41,
62,
23,
-77,
59,
30,
-34,
-22,
-11,
-11,
-16,
-35,
31,
-52,
10,
6,
-28,
28,
-8,
41,
28,
44,
-43,
9,
19,
3,
14,
42,
3,
-28,
32,
27,
-3,
8,
12,
-2,
-36,
-36,
-68,
-25,
24,
-7,
-25,
6,
5,
19,
-11,
-25,
-59,
0,
-3,
-15,
-72,
-8,
3,
-11,
4,
-1,
31,
-27,
-61,
27,
41,
-43,
74,
-30,
17,
36,
-33,
-42,
-1,
-5,
-52,
4,
44,
-3,
-41,
-57,
-42,
-22,
-33,
-20,
-29,
-24,
-6,
-14,
46,
-4,
-5,
11,
5,
30,
97,
-4,
50,
32,
34,
27,
1,
47,
-1,
33,
-15,
84,
24,
16,
14,
20,
-50,
-15,
-21,
7,
16,
-15,
30,
-14,
28,
-34,
57,
-25,
-3,
-59,
-23,
-68,
49,
-12,
-25,
45,
59,
-15,
24,
9,
-38,
-25,
18,
5,
6,
-18,
-22,
58,
-35,
-87,
-75,
2,
4,
23,
-54,
-2,
72,
-12,
1,
-26,
-36,
-5,
-23,
-42,
-1,
76,
-28,
-38,
-36,
-25,
12,
-34,
-59,
45,
-21,
-2,
20,
35,
-47,
-34,
17,
15,
-34,
-20,
-21,
-2,
-13,
-43,
-27,
11,
-26,
23,
40,
62,
4,
5,
-13,
-4,
11,
-34,
29,
-40,
16,
15,
13,
4,
20,
5,
10,
9,
65,
20,
18,
-8,
1,
5,
16,
-12,
-13,
26,
-55,
28,
8,
-10,
26,
21,
33,
-42,
28,
-5,
-31,
-38,
17,
-3,
-42,
2,
-21,
-5,
22,
-50,
-24,
-34,
-73,
34,
15,
-9,
5,
24,
-32,
-26,
-36,
-6,
-40,
-15,
2,
-36,
36,
17,
80,
-13,
15,
-88,
55,
-9,
-14,
31,
38,
59,
-39,
-14,
-19,
8,
23,
-37,
-39,
4,
3,
-52,
2,
-17,
54,
16,
49,
37,
78,
31,
16,
23,
43,
15,
-49,
-28,
7,
23,
-44,
-45,
-25,
20,
35,
1,
53,
27,
-58,
15,
-16,
16,
-60,
35,
-1,
-34,
-18,
-14,
15,
58,
-50,
-22,
51,
-38,
-21,
12,
21,
29,
3,
18,
45,
38,
-17,
-2,
-6,
15,
-25,
10,
59,
3,
-6,
-17,
1,
-1,
30,
-13,
-5,
-33,
56,
58,
-35,
13,
-20,
14,
-32,
-46,
-14,
-20,
75,
-10,
-19,
-35,
-21,
-56,
24,
-25,
-11,
-29,
-29,
37,
0,
7,
-8,
73,
-7,
11,
-37,
24,
45,
16,
31,
-7,
-27,
19,
1,
3,
-13,
-11,
26,
-20,
-64,
-22,
-60,
17,
25,
60,
-15,
38,
0,
3,
-23,
-56,
-11,
28,
52,
-15,
31,
49,
-43,
-34,
45,
24,
13,
40,
22,
11,
-14,
-23,
-75,
-6,
29,
47,
-16,
-10,
-13,
-25,
0,
5,
19,
43,
8,
-66,
-87,
1,
16,
4,
4,
2,
-57,
26,
-27,
10,
36,
-37,
25,
-13,
-21,
1,
28,
12,
-1,
36,
-26,
-22,
-37,
35,
31,
-50,
-6,
13,
22,
22,
33,
-43,
14,
19,
-44,
5,
-17,
10,
-14,
-30,
-16,
25,
55,
-10,
-36,
-22,
-17,
-27,
-67,
21,
27,
67,
25,
-31,
16,
-35,
-24,
-26,
4,
17,
27,
-6,
5,
9,
6,
6,
-37,
-8,
14,
-2,
95,
3,
44,
32,
-17,
30,
5,
-10,
-4,
-43,
52,
-8,
22,
13,
18,
-49,
-58,
-12,
-26,
28,
1,
9,
21,
-7,
-29,
37,
-12,
-36,
-41,
67,
-34,
25,
-3,
-4,
-8,
-23,
37,
68,
-14,
25,
-42,
-5,
12,
49,
45,
-21,
-7,
-42,
63,
-26,
-13,
11,
-67,
-27,
-70,
44,
-44,
-13,
-34,
2
] |
Per Curiam.
Plaintiff Arthur Manuel was assaulted by a patron while in defendant’s tavern. Plaintiffs brought suit in Wayne County Circuit Court against defendant based upon their claim for damages arising out of the incident which occurred in the Roxy Bar owned and operated by defendant, Harry Weitzman. Plaintiffs sued on four counts. Counts I and II were brought under the dramshop act, MCLA § 436.22 (Stat Ann 1970 Cum Supp § 18.993). Counts III and IV allege that defendant violated the tavern keeper’s duty to maintain safe premises for business invitees. Counts I and II were settled prior to trial and dismissed by stipulation. Plaintiffs proceeded to trial on counts III and IV. At trial on these latter two counts, defendant was granted a directed verdict. Plaintiffs appeal.
The trial court based its directed verdict on two grounds. The first was that plaintiffs could not bring suit both upon the statute and under the common law. The second ground for directed verdict was that the trial court found no questions for the jury to be present in plaintiffs’ proof.
We considered the question of election of remedy in Baker v. Golematis (1969), 17 Mich App 383. There we said, at p 385:
“There is no rule that a claim for damages under the dramshop act cannot be brought with a companion action alleging liability for negligence arising out of the same facts.”
As to the second question, it is well settled that a directed verdict is improper if, viewing the evidence in the light most favorable to the nonmoving party, reasonable men could honestly differ. See Sparks v. Ludlow (1963), 372 Mich 198. It follows then that if there is a single material issue of fact from which reasonable men could draw different conclusions, the case must be allowed to go to the jury.
The record discloses testimony stating that after plaintiff Arthur Manuel was first assaulted, several minutes elapsed before defendant’s bartender intervened in the altercation. The trial court, in reviewing the standards of care set forth in Gorby v. Yeomans (1966), 4 Mich App 339, correctly noted that there is a duty on the part of the tavernkeeper “to stop a fight as soon as possible after it is started.” The trial judge went on to say, “the testimony elicited here would indicate that the two bartenders came to the aid of this plaintiff, one by jumping over the bar and the other by running around it when the plaintiff was thrown to the floor by Carrigan.” However, plaintiff Arthur Manuel had testified on direct examination, and again on cross-examination, that a significant period of time elapsed after plaintiff was first assaulted and before he finally fell to the floor.
We feel that reasonable men might say that the fight actually began when plaintiff Arthur Manuel was grabbed from behind and struggled to free himself and that the tavern keeper’s duty arose at that point. The trial judge evidently assumed that the fight (and defendant’s duty) commenced only after plaintiff was forced to the floor. We find that the question of when the fight commenced (and defendant’s duty to intercede arose) is a question for the jury. Whether the actions of defendant’s bartenders complied with the duty as set forth in Gorby v. Yeomans, supra, was a question for the jury.
In the event plaintiffs prevail on retrial, the amount of the verdict in any judgment should he reduced by the sum representing the settlement, reached under the dramshop count.
Reversed and remanded.
See, also, Be Villez v. Schifano, ante, p 72.—Reporter. | [
27,
7,
18,
0,
-42,
17,
8,
44,
-62,
37,
-22,
9,
-12,
29,
32,
-31,
24,
-25,
-12,
-20,
6,
19,
-10,
20,
-26,
30,
28,
20,
-4,
-41,
-17,
26,
-11,
55,
-2,
21,
13,
0,
-15,
3,
0,
26,
25,
6,
9,
28,
-1,
2,
15,
-18,
-34,
-20,
-44,
20,
-12,
-44,
-57,
33,
16,
18,
-36,
56,
-19,
-13,
30,
-58,
25,
-52,
-11,
-53,
-20,
16,
0,
-17,
-69,
-32,
-41,
-8,
51,
-31,
-22,
-10,
30,
56,
-36,
2,
44,
-11,
-1,
-30,
15,
29,
-46,
-22,
44,
46,
0,
28,
45,
3,
-34,
-25,
-48,
0,
3,
0,
23,
-21,
-39,
-36,
-5,
0,
39,
-14,
-27,
-5,
33,
-22,
-30,
19,
58,
3,
42,
-27,
-18,
6,
1,
-5,
-25,
20,
13,
-2,
30,
25,
8,
25,
-8,
38,
51,
-10,
36,
-28,
30,
-29,
19,
20,
-42,
40,
-12,
-57,
-29,
24,
1,
7,
-37,
-28,
49,
-37,
2,
5,
12,
-45,
-25,
8,
43,
-25,
10,
-30,
11,
4,
6,
-40,
47,
1,
46,
27,
8,
-25,
-60,
-38,
-36,
41,
-10,
-30,
36,
-7,
20,
-69,
-8,
32,
23,
-47,
-15,
22,
29,
37,
18,
21,
-9,
-13,
5,
-20,
9,
-62,
28,
13,
23,
-49,
-66,
-17,
2,
-8,
-30,
-40,
-8,
-28,
29,
-74,
-21,
-2,
-80,
-10,
-50,
3,
-26,
-73,
-35,
-45,
-19,
17,
3,
-19,
-42,
34,
0,
-46,
8,
-19,
37,
-7,
27,
20,
-26,
-23,
1,
52,
-42,
25,
-5,
67,
41,
1,
7,
-9,
-25,
-45,
-14,
32,
24,
-5,
17,
41,
-14,
0,
-46,
4,
33,
8,
-8,
7,
-19,
-11,
48,
38,
-1,
-38,
-26,
30,
17,
28,
8,
2,
44,
4,
-36,
20,
-40,
-11,
17,
29,
2,
-6,
-98,
38,
22,
24,
-16,
7,
-6,
30,
2,
12,
71,
17,
-29,
-19,
-23,
-23,
-3,
-67,
-17,
12,
-2,
12,
27,
8,
-12,
17,
13,
-93,
15,
-12,
23,
-22,
-34,
-96,
38,
0,
-2,
-14,
-5,
64,
27,
5,
-25,
2,
33,
-30,
32,
11,
49,
-47,
12,
9,
22,
65,
0,
4,
-13,
-53,
-28,
-35,
2,
11,
49,
9,
-12,
-27,
-8,
20,
-7,
-35,
-39,
7,
35,
-5,
7,
24,
8,
47,
-33,
0,
8,
-17,
-95,
-2,
6,
-15,
-1,
77,
15,
-37,
4,
-27,
-4,
4,
-18,
-59,
-62,
40,
-34,
-37,
16,
0,
33,
5,
-51,
20,
39,
12,
-17,
-15,
17,
2,
-33,
2,
0,
-13,
6,
52,
6,
-12,
12,
9,
-39,
59,
7,
40,
-3,
5,
81,
-1,
7,
-39,
-11,
-45,
-12,
6,
-49,
6,
-56,
-19,
-23,
7,
0,
-29,
7,
13,
11,
4,
-32,
-19,
-42,
-25,
50,
-2,
37,
25,
19,
-10,
0,
8,
13,
53,
-1,
55,
10,
11,
19,
-48,
30,
-5,
-51,
7,
2,
-4,
-66,
-6,
-14,
-26,
-36,
-9,
11,
-6,
-22,
6,
63,
32,
-23,
32,
11,
65,
0,
4,
-34,
-17,
-7,
6,
-13,
-17,
41,
-9,
36,
14,
-16,
17,
-24,
37,
-79,
-15,
-30,
-21,
-33,
8,
21,
-15,
8,
-33,
-10,
35,
-58,
10,
37,
9,
-26,
-45,
42,
-30,
15,
36,
28,
-79,
-4,
15,
-26,
-41,
-6,
-10,
-23,
-66,
26,
-2,
-27,
-33,
15,
36,
-9,
-16,
12,
2,
-15,
45,
9,
4,
17,
22,
-30,
-17,
60,
42,
21,
-4,
-6,
-21,
-27,
-17,
-18,
-7,
35,
-14,
-28,
-12,
-11,
51,
17,
-5,
0,
-55,
83,
5,
-56,
30,
-11,
-41,
-57,
-42,
-5,
0,
-7,
19,
-33,
5,
12,
21,
-3,
2,
22,
0,
-17,
25,
-47,
-1,
37,
12,
43,
-2,
22,
-12,
4,
30,
32,
-50,
5,
-46,
11,
-15,
-66,
-10,
16,
-4,
34,
1,
-26,
-34,
-19,
2,
-29,
-15,
-13,
61,
36,
-64,
-15,
27,
56,
0,
0,
-35,
-1,
-31,
-27,
5,
20,
-22,
-13,
18,
-17,
19,
-8,
33,
-17,
55,
4,
33,
11,
-28,
-48,
62,
-21,
-24,
-26,
38,
-10,
14,
-17,
-31,
22,
10,
10,
-31,
3,
14,
-41,
51,
14,
2,
59,
-3,
-1,
31,
9,
-8,
45,
57,
73,
-15,
-49,
18,
-9,
7,
-68,
-8,
30,
-31,
0,
6,
-16,
-10,
12,
13,
-36,
-8,
-3,
-17,
12,
41,
26,
35,
-29,
5,
-22,
-41,
-3,
8,
11,
18,
8,
-63,
-4,
-56,
-5,
21,
-28,
-19,
19,
3,
-32,
5,
-13,
37,
-19,
-6,
8,
-22,
-13,
17,
-29,
33,
5,
-4,
23,
-43,
-5,
35,
2,
51,
-3,
-25,
-26,
2,
-18,
-34,
19,
-19,
-9,
-19,
-1,
-1,
18,
47,
-9,
68,
-14,
14,
-19,
2,
50,
14,
-15,
12,
18,
-16,
2,
-30,
-18,
12,
-8,
-10,
30,
-8,
-7,
25,
30,
-50,
-15,
23,
2,
-18,
4,
-3,
18,
-15,
0,
23,
-10,
-4,
0,
-16,
-6,
31,
11,
-17,
-5,
6,
-7,
0,
33,
-31,
-23,
9,
-7,
16,
43,
32,
21,
-13,
15,
2,
49,
-29,
30,
18,
26,
32,
-34,
17,
18,
-14,
-36,
-7,
-17,
20,
5,
-17,
12,
-56,
-20,
-7,
-17,
-7,
26,
-47,
-23,
20,
16,
22,
37,
-23,
-33,
16,
12,
19,
-23,
73,
35,
-41,
-14,
19,
-23,
-25,
-12,
19,
-6,
-38,
-10,
22,
37,
-42,
0,
-3,
22,
28,
-14,
0,
-5,
-14,
-42,
-9,
1,
36,
-13,
-8,
15,
51,
-48,
30,
-25,
-50,
-6,
-38,
7,
-5,
-22,
2,
27,
-6,
16,
12,
-40,
21,
79,
34,
-9,
56,
-5,
-3,
-79,
-29,
56,
-75,
-27,
23,
49,
11,
42,
-9,
21,
-1,
-24,
47,
11,
0,
30,
30,
21,
4,
-8,
16,
50,
-15,
31,
38,
-3,
-23,
-24,
7,
-10,
6,
6,
34,
-51,
-21,
-20,
-18,
-33,
21,
29,
-17,
6,
35,
-21,
26,
26,
27,
-35,
2,
-31,
6,
-21,
-10,
-63,
-19,
-17,
2,
-17,
24,
9,
42,
-47,
43,
26,
44,
6,
15,
-13,
-24,
-9,
-41,
21,
-4,
-6,
-4,
20,
24,
-36,
-11,
0,
34,
-30,
26,
-6,
-22,
49,
-7,
-10,
22,
-52,
-19,
-15,
-32,
-28,
13,
5,
20,
4,
28,
-22,
22,
31,
-12,
69,
38,
17,
-20,
55,
2,
36,
2,
11,
-12,
-45,
-7,
39,
-4,
-10,
32,
-16,
-3,
-65,
14,
-42,
30,
-20,
25
] |
V. J. Brennan, J.
This is an appeal by leave and at the instance of the people from a habeas corpus release. Combined in the alternative with the appeal is an application for an order of superintending control. The defendant and petitioner below, William Price, is on personal bond pending the outcome.
The events preceding the release are summarized as follows:
In July, 1961, the defendant, then 16 years old, was charged with larceny from the person. Jurisdiction was waived by the juvenile court and trial in the recorder’s court of the city of Detroit in September, 1961, resulted in a verdict of guilty as charged. The defendant was sentenced to a term of one to ten years in Jackson prison, a term later enhanced by an escape conviction.
In the fall of 1967, while still an inmate of Jackson prison, the defendant filed a motion for new trial in the recorder’s court, claiming among other things that his larceny conviction was void for the want of representation by counsel at the juvenile waiver hearing. In re Gault (1967), 387 US 1 (87 S Ct 1428; 18 L Ed 2d 527), decided in May, 1967, was said to require counsel’s presence at such a hearing, even though Gault was limited on its facts to a delinquency proceeding. A hearing on the motion was held before recorder’s court Judge George W. Crockett, Jr. on December 15, 1967. Agreeing that Gault was applicable to waiver hearings, the court ruled that Gault was retroactive, that the waiver of the juvenile court was invalid, and that the recorder’s court consequently never acquired jurisdiction over the defendant to try him for larceny. Treating defendant’s motion as a petition for writ of habeas corpus, Judge Crockett ordered the defendant’s release.
The defendant’s principal contention in opposition to this appeal is that review of a habeas corpus release is simply not open to the people. Before turning to this question, we note that under the present case law of this state, Judge Crockett was in error on the merits of the release. In People v. Terpening (1969), 16 Mich App 104, decided some 14 months after the defendant’s release, this Court held that even if Gault is applicable to a juvenile waiver hearing, it is not retroactive as applied to such hearings, and therefore a waiver hearing conducted before Gault does not require the presence of counsel.
The defendant’s principal contention is founded on both statute and case law. MCLA § 770.12 (Stat Ann 1954 Rev § 28.1109), enacted in derogation of the common-law rule barring any and all appeals by the people in criminal cases, permits review at the instance of the people by a writ of error (modernly, an appeal), but only under certain narroiv circumstances. None of the circumstances enumerated in the statute are present here. People v. Conant (1886), 59 Mich 565, and People v. Fairman (1886), 59 Mich 568, also cited by defendant, are even more conclusively in his favor. They flatly hold that a writ of error from a habeas corpus release is not available to the people.
The people acknowledge these limitations on appellate review but contend that review is open under our broad power of superintending control, a power granted this Court to aíford a remedy where one is otherwise unavailable. We feel, as various authorities have stated, that this is a broad power and can be used whenever this Court or the Supreme Court sees fit to properly use it; especially where it becomes necessary to “insure the harmonious working of our judicial system,” quoting from Chief Justice Dethmers’ opinion in In re Huff (1958), 352 Mich 402, 417, 418. Continuing, the Court went on to say,
“The power of superintending control is an extraordinary power. It is hampered by no specific rules or means for its exercise. It is so general and comprehensive that its complete and full extent and use have practically hitherto not been fully and completely known and exemplified. It is unlimited, being bounded only by the exigencies which call for its exercise. As new instances of these occur, it will be found able to cope with them. Moreover, if required, the tribunals having authority to exercise it will, by virtue df it, possess the power to invent, frame, and formulate new and additional means, writs, and proceséis whereby it may be exerted. This power is not limited by forms or procedure or by the writ used for its exercise. Furthermore, it is directed primarily to inferior tribunals, and its relation to litigants is only incidental.”
Also, see, generally, Committee Comment, GCR 1963, 711.1, 4 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 41.
We therefore inquire into the jurisdiction of the recorder’s court to entertain a question on habeas corpus in the first place; that is, whether habeas corpus was a proper and available method for review of the error claimed by defendant. Our authority to entertain this question, along with our authority to exercise superintending control and order the vacation of the release order if habeas corpus is found to be an improper method of review, stems not only from In re Huff, supra, but also from Hamilton’s case (1883), 51 Mich 174. In Hamilton, a defendant convicted and imprisoned by a justice of the peace for the failure to pay a liquor tax was released on habeas corpus by the Ionia circuit court. The record of conviction failed to show the commission of any offense, apparently because of technical errors. The Supreme Court granted a writ of certiorari, concluded that a habeas corpus was improper irrespective of whether error was committed by the justice of the peace, and vacated the order releasing the defendant. It was said in part (per Cooley, J., at 175, 176):
“The discharge necessarily assumed that the record of conviction failed to show the commission of any offense. This conclusion was reached apparently upon a somewhat critical and technical examination of the commitment, and we are not satisfied that the criticism was not overnice. But the point is not very material, as it is plain that technical defects are now reviewable on this process.
“If the warrant showed a conviction without jurisdiction, habeas corpus would be the proper remedy; but when the defects are mere irregularities the party must seek redress in some of the modes provided by statute for review by some appellate tribunal. The circuit judge of the Ionia circuit is not an ajppellate tribunal in respect to proceedings which take place before justices of the peace of the county of Schoolcraft, and in exercising authority hy the writ of habeas corpus he is commissioner merely, and what he may do, the circuit court commissioner of the county may claim the right to do also. Nor would the authority be limited to convictions by justices of the peace, but the circuit court commissioner might in the same way assume to review the judgments and sentences of the circuit courts, and we might witness the spectacle of these inferior officers sitting as judges of review upon the action and judgments of courts of general jurisdiction. A sense of propriety might restrain such action, but we cannot fail to perceive what possibilities are involved in sustaining this discharge. An appellate court may no doubt make use of the writ as one means of exercising its supervisory power, but it is not to be employed as a writ of error by tribunals not possessing the appellate authority.” (Emphasis added.) See, also, Ellis v. Daboll (1892), 90 Mich 272, and In re Brock (1906), 144 Mich 43.
We now turn to the question whether habeas corpus was a proper method of review in the instant case.
Section 4310(3) of the habeas corpus statute prohibits a habeas action by or on the behalf of “persons convicted, or in execution, upon legal process, civil or criminal.” This statutory prohibition is generally consonant with often-repeated judicial declarations that habeas corpus cannot serve as a substitute for an appeal and cannot be used to review the merits of a criminal conviction. Despite the general prohibition, habeas corpus is open to a convicted person in one narrow instance, one that con cerns us here, and that is where the convicting court was without jurisdiction to try the defendant for the crime in question. See In re Joseph (1919), 206 Mich 659; People v. Harris (1934), 266 Mich 317; In re Joslin (1952), 334 Mich 627. This exception, it must be added, is qualified by the requirement that the jurisdictional defect be radical. It must render the conviction absolutely void. In re Palm (1931), 255 Mich 632; In re Gardner (1932), 260 Mich 122; In re Stone (1940), 295 Mich 207.
The pivotal question thus becomes whether the error asserted by defendant — the denial of an alleged right to counsel at a juvenile waiver hearing —was such that for purposes of habeas review the recorder’s court can be said to have been without jurisdiction to enter a conviction. We conclude that it cannot.
Further, we question the authority of the trial court here to review conviction and sentence of a defendant by another trial judge by way of habeas corpus. The Supreme Court in In re Satt (1911), 164 Mich 472, said that the writ of habeas corpus may not be used as a substitute for writ of error or to perform its functions. In Recorder’s Court Judge v. Wayne Circuit Judge (1957), 347 Mich 567, the Supreme Court prevented a circuit judge from reviewing the disposition of a recorder’s court judge in a certain matter, stating in effect that both courts have equal jurisdiction and one cannot review the other’s final judgment. They granted in that case a writ of prohibition preventing the circuit judge from so doing. Further, the recorder’s court rules prohibit this type of review. MCLA § 726.2 (Stat Ann 1962 Rev § 27.3552).
We point out that review was available. An appeal to this Court by leave could have been taken, as was done in Terpening, supra. More significantly, the asserted defect in the convicting court’s jurisdiction cannot he characterized as radical. A radical defect in jurisdiction contemplates, we think, an act or omission by state authorities that clearly contravenes an express legal requirement in existence at the time of the act or omission. If it were otherwise, habeas corpus in the trial courts of this state would open the way for the less than uniform resolution of unsettled questions of law, along with judicial abuses that are neither reported nor appeal-able. Habeas corpus in a trial court is a highly inappropriate device for the final resolution of such questions.
The defect or error asserted in the instant case did not contravene an express legal requirement in existence either at the time of the waiver hearing or at the time of the release. Indeed, in Terpening this Court expressly rejected the contention that the presence of counsel was required at pre-Gault waiver hearings. Thus, we conclude that for purposes of habeas corpus the recorder’s court had jurisdiction to convict the defendant and that habeas corpus, after conviction and sentence, was consequently an improper method of review.
Since habeas corpus was an improper method of review, it is hereby ordered under our powers of superintending control, GrCR 1963, 711.4(1), that the order of discharge be vacated and the defendant remanded to the custody of the Michigan Department of Corrections.
All concurred.
MCLA § 750.357 (Stat Ann 1954 Rev § 28.589).
MCLA § 600.4301 et seq. (Stat Ann 1962 Rev § 27A.4301 et seq.).
In re Long (1934), 266 Mich 369; In re Abbott (1934), 267 Mich 703; In re Southard (1941), 298 Mich 75; In re Offill (1940), 293 Mich 416.
In re Lemanna (1933), 263 Mich 62; In re Dunning (1944), 310 Mich 1; In re Kovacivich (1948), 323 Mich 310; In re Lewis (1900), 124 Mich 199. | [
30,
33,
11,
74,
-71,
1,
-79,
-45,
-65,
-53,
-49,
38,
-43,
-20,
7,
17,
-40,
4,
3,
9,
25,
36,
29,
34,
6,
-68,
35,
40,
-5,
22,
34,
-8,
30,
-17,
-10,
-36,
57,
-15,
50,
-7,
-4,
27,
-34,
-3,
-84,
-13,
38,
36,
33,
21,
-69,
-8,
22,
46,
29,
33,
-13,
-42,
37,
56,
-21,
22,
-6,
-36,
-41,
19,
18,
-9,
20,
-41,
34,
10,
-18,
13,
20,
25,
-4,
25,
53,
20,
-6,
45,
-28,
-55,
6,
-5,
16,
-36,
9,
17,
-12,
7,
-45,
-33,
-5,
-17,
10,
15,
33,
-48,
-50,
7,
0,
-6,
49,
-35,
-26,
5,
-47,
30,
-19,
-3,
20,
-62,
-12,
-70,
-31,
-29,
-3,
-15,
-6,
31,
32,
42,
0,
20,
-3,
-52,
54,
10,
-1,
32,
-4,
30,
5,
61,
12,
9,
-27,
-3,
-74,
-15,
8,
-41,
29,
0,
-5,
22,
31,
19,
14,
-4,
-11,
14,
-24,
13,
18,
11,
-24,
17,
17,
-35,
-48,
-38,
20,
-36,
8,
-1,
28,
7,
-17,
29,
40,
54,
-10,
-23,
-11,
8,
9,
29,
-29,
-1,
-4,
-14,
-29,
-20,
14,
43,
-8,
-21,
-22,
57,
-33,
13,
36,
-1,
25,
-1,
-27,
49,
-27,
-1,
5,
26,
20,
-36,
27,
-19,
-5,
-6,
-94,
-9,
36,
25,
6,
0,
4,
8,
17,
77,
-31,
37,
26,
-30,
10,
-12,
35,
73,
-1,
-18,
44,
57,
-5,
30,
9,
-4,
-33,
-12,
9,
1,
-3,
-43,
17,
-19,
10,
32,
-21,
-42,
15,
-23,
-5,
40,
-19,
-8,
-28,
-1,
28,
-61,
6,
-36,
12,
12,
-20,
-3,
14,
-17,
-16,
27,
-42,
-30,
-28,
-28,
-8,
-12,
38,
16,
-2,
63,
49,
-9,
5,
5,
-11,
-6,
-37,
9,
44,
-27,
57,
13,
23,
-19,
-24,
12,
56,
23,
-19,
6,
7,
31,
25,
-5,
20,
-6,
-26,
-18,
47,
-8,
20,
-7,
8,
22,
1,
1,
-3,
-28,
-32,
-11,
40,
-13,
-33,
21,
-9,
-23,
-2,
7,
5,
-7,
-33,
-45,
33,
-4,
-39,
-26,
-6,
22,
-39,
54,
-2,
61,
-21,
7,
40,
-36,
2,
2,
-36,
-5,
10,
9,
22,
2,
14,
26,
-13,
3,
-17,
-17,
-6,
-35,
50,
-39,
0,
-16,
26,
-11,
-9,
19,
39,
9,
-44,
-17,
-2,
-32,
-10,
-27,
23,
-33,
-29,
-1,
-29,
-12,
2,
-27,
6,
-57,
-39,
37,
8,
34,
-66,
-5,
-15,
-26,
-25,
8,
58,
41,
-2,
-6,
-35,
6,
-17,
55,
-7,
-16,
-39,
14,
-42,
-26,
66,
2,
35,
59,
-6,
3,
21,
10,
12,
-52,
1,
22,
28,
-39,
0,
45,
30,
-17,
68,
-2,
19,
19,
13,
-55,
2,
59,
-45,
-34,
0,
-20,
-57,
-48,
3,
16,
69,
-54,
-35,
-35,
-1,
33,
11,
18,
-6,
-34,
-37,
36,
-34,
4,
-23,
-29,
-6,
-8,
3,
16,
31,
-29,
-108,
16,
36,
23,
15,
30,
21,
13,
-81,
-44,
15,
-2,
40,
6,
19,
-15,
-29,
31,
0,
20,
22,
-44,
12,
32,
-63,
-31,
35,
-6,
2,
21,
-38,
-20,
22,
41,
-25,
-8,
5,
30,
35,
-3,
35,
-41,
28,
27,
41,
-5,
-64,
34,
-8,
2,
14,
-25,
17,
24,
14,
-19,
7,
28,
-30,
-5,
-46,
-15,
6,
1,
14,
0,
0,
3,
-29,
-10,
-8,
-16,
-6,
-2,
19,
-15,
26,
-6,
16,
-36,
-13,
-36,
9,
6,
-22,
21,
11,
-27,
5,
-10,
-20,
-27,
-20,
-13,
30,
31,
77,
-1,
-58,
8,
1,
4,
-10,
21,
25,
51,
18,
20,
8,
-7,
31,
36,
43,
0,
-13,
38,
-56,
-43,
31,
-56,
4,
9,
50,
-35,
-41,
-13,
8,
-54,
-44,
4,
8,
-40,
38,
67,
-11,
55,
-40,
30,
25,
-6,
37,
3,
-32,
26,
21,
22,
0,
-42,
-14,
-7,
-14,
30,
-73,
3,
-47,
-10,
-28,
-48,
-22,
-49,
-34,
-39,
-13,
-20,
37,
-1,
3,
22,
11,
6,
-5,
0,
-26,
-1,
-22,
47,
-26,
-37,
19,
14,
-17,
-46,
-40,
-4,
-15,
18,
-6,
6,
62,
8,
-14,
-24,
64,
-50,
-4,
28,
-79,
5,
24,
3,
-53,
29,
-17,
-5,
14,
0,
23,
-21,
-10,
9,
-6,
10,
50,
-3,
-26,
23,
-45,
-16,
2,
-43,
-20,
87,
8,
49,
8,
13,
33,
-6,
17,
18,
14,
17,
-28,
-4,
-3,
-4,
63,
15,
-31,
-24,
12,
23,
27,
-4,
-16,
32,
24,
59,
29,
-37,
11,
-34,
-13,
15,
-7,
6,
33,
22,
21,
68,
30,
1,
6,
-39,
-11,
-8,
3,
-12,
31,
15,
-20,
13,
21,
-3,
-57,
-26,
-52,
-44,
-3,
19,
28,
-28,
-5,
-15,
38,
-16,
-20,
10,
-68,
0,
26,
-38,
-34,
19,
-10,
16,
-47,
-19,
-33,
25,
4,
30,
115,
24,
-11,
-76,
-38,
-28,
-8,
29,
-7,
35,
-2,
-7,
-35,
20,
-30,
0,
37,
-49,
-47,
-17,
-6,
-42,
11,
-49,
-27,
-2,
10,
6,
23,
2,
13,
19,
-14,
39,
46,
-21,
0,
-30,
46,
3,
-1,
-21,
-30,
30,
-22,
-11,
-22,
-36,
-17,
-5,
13,
12,
-3,
5,
-57,
-3,
5,
54,
52,
8,
-9,
8,
-6,
11,
61,
46,
25,
-24,
1,
-2,
-25,
-5,
23,
6,
49,
-44,
21,
22,
-8,
-47,
-22,
42,
13,
-43,
-51,
13,
-31,
-35,
0,
-36,
20,
-35,
16,
49,
0,
-19,
-13,
89,
23,
1,
46,
7,
-22,
-22,
2,
-1,
-18,
23,
10,
24,
-17,
-49,
38,
-55,
19,
9,
53,
23,
20,
-65,
-32,
-29,
-3,
-8,
-6,
46,
-35,
46,
38,
-9,
24,
-26,
22,
28,
13,
-7,
0,
-14,
-41,
-18,
-10,
3,
-31,
3,
31,
-14,
46,
8,
-40,
18,
66,
-48,
19,
-10,
-7,
53,
1,
-9,
-15,
-22,
10,
60,
-13,
-7,
-48,
-62,
-22,
-22,
84,
-24,
-13,
-15,
-27,
0,
-103,
-31,
-9,
70,
16,
-8,
6,
2,
-7,
-50,
19,
-41,
-10,
-23,
8,
0,
23,
5,
-22,
47,
-22,
-41,
18,
76,
5,
-30,
-1,
-3,
0,
-45,
6,
-34,
22,
-1,
20,
32,
54,
6,
-14,
-46,
-63,
-31,
-15,
-57,
15,
32,
-38,
-10,
21,
-53,
-3,
30,
15,
44,
-2,
-38,
-52,
24,
-10,
33,
13,
-7,
29,
21,
-1,
-60,
0,
-11,
-6,
-60,
24,
-51,
-29,
-5,
-13,
-13,
-64,
8,
30,
29,
34,
20
] |
Per Curiam.
Following a nonjury trial defendant was convicted of assault with intent to do great bodily harm less than murder and sentenced to 9-1/2 to 10 years in prison.
At the beginning of trial the trial judge gave the following answer to the prosecutor’s request for the transcript of the preliminary examination testimony: “Yes as soon as I finish it.” Although no claim of error was raised below, the defendant now argues that the trial judge’s answer indicated he was reading the transcript and that such an act is reversible error. Assuming, arguendo, that it is error for a trier of fact to sua sponte, read the preliminary examination transcript before its introduction into evidence, and that the trial judge below, in fact, read the transcript, we fail to see how the defendant was prejudiced. A review of both the preliminary examination transcript and the trial transcript reveals that no testimony was given at the former hearing that was not repeated at the trial.
The assault in this case occurred when defendant shot the complaining witness, Emmett Williams, during a barroom brawl. It appears that a fight between defendant and Williams’ stepbrother led to the shooting of the stepbrother by defendant. After the shooting defendant and others continued to accost and beat the stepbrother in the rear of the bar. Complainant, who was in the front of the bar, ran to the area of the fight, grabbed defendant and threw him back in an attempt to protect his stepbrother. Defendant then shot Williams in the face and the shoulder. Defendant testified that he was just “looking out for [his] interest” when he shot Emmett Williams. Defendant did not testify that Williams did anything but pull him off and throw him to the ground.
Defendant’s second claim of error concerns the plaintiff’s alleged failure to indorse on the information three res gestae witnesses. The sister of one of the missing witnesses testified that the witness, Caroline Wiley, had given her name and address to the investigating officers. However, the officer in charge of the case explained her absence in this manner:
“Det. Day: We don’t have her name on our report, your Honor, from the original report.
“I called the bar prior — after this incident happened to inquire about other witnesses to speak to and nobody had — nobody knows anything about any other witnesses, other than the people that stepped forward and volunteered their names.”
In addition, Caroline Wiley’s sister testified that Miss Wiley ran from the bar as soon as the brawl began. Under these facts there is no indication that Caroline Wiley could have added any new evidence concerning the assault on the complaining witness. There was no reversible error. People v. Kayne (1934), 268 Mich 186, 194.
The two other missing witnesses were the barmaid or barmaids apparently on duty the night of this fight. Although there was no testimony that the barmaids actually saw the brawl involving the complaining witness, the defendant argues that their testimony was essential. We disagree. The details of the disturbance, testified to by the two victims, the complaining witness and his stepbrother, were substantially corroborated by the defendant’s own testimony. The fact of the shooting was admitted by the defendant. There is no evidence that Williams posed any threat to defendant. Further, ready means of escape were available to defendant after he was thrown back.
Affirmed.
MCLA § 750.84 (Stat Ann 1962 Rev §28.279).
The prosecutor pointed out, in his brief and on oral argument, that at a hearing on the motion for new trial, the trial judge denied reading the preliminary examination transcript. The defendant admitted the accuracy of the prosecutor’s statement on oral argument.
MCLA § 767.40 (Stat Ann 1969 Cum Supp § 28.980).
One of defendant’s witnesses testified that there was a barmaid present. Defense counsel, during argument, indicated that his investigation revealed two barmaids on duty. Although the bar owner, who was on duty himself, testified during the trial, no further testimony as to other employees was elicited.
Although one of defendant’s witnesses testified that she “guessed” that one of the barmaids called police to report a fight, the bar owner testified that, in fact, he called the police. | [
15,
-7,
0,
18,
-20,
-42,
-35,
40,
-26,
44,
-21,
-4,
22,
17,
28,
-16,
-12,
-3,
17,
-55,
-28,
-52,
-9,
72,
-30,
12,
-18,
45,
-6,
29,
34,
18,
0,
-41,
5,
-19,
40,
44,
-25,
49,
13,
5,
76,
-56,
-45,
-11,
-29,
7,
14,
7,
24,
-31,
0,
-3,
-35,
5,
27,
-36,
2,
-7,
9,
48,
-31,
-64,
-58,
-33,
-21,
13,
-23,
10,
-20,
0,
-33,
-34,
-30,
-71,
-14,
-16,
13,
2,
-14,
14,
43,
33,
23,
-42,
0,
-76,
28,
-9,
30,
46,
-36,
-55,
-17,
-27,
33,
-19,
47,
-1,
-17,
-14,
0,
24,
-50,
25,
-30,
-15,
20,
6,
14,
42,
43,
23,
-39,
-39,
-13,
-7,
-10,
-20,
13,
46,
32,
-10,
17,
-31,
0,
-44,
-19,
-8,
6,
35,
27,
-3,
-38,
-32,
1,
3,
-47,
-9,
16,
2,
-6,
-3,
43,
19,
-12,
4,
29,
59,
-72,
-5,
-11,
8,
-31,
-4,
5,
-19,
-39,
-27,
40,
6,
-15,
-40,
9,
3,
20,
-41,
23,
-16,
12,
9,
41,
30,
38,
7,
-24,
-35,
2,
-5,
0,
27,
13,
-45,
15,
16,
-15,
-11,
-37,
17,
-33,
58,
-35,
-14,
48,
27,
-20,
1,
27,
-43,
-6,
-4,
11,
-14,
3,
21,
20,
-16,
48,
0,
11,
19,
-54,
-37,
23,
-72,
13,
-15,
-22,
20,
-66,
3,
-20,
-10,
-33,
-37,
21,
-1,
-74,
8,
21,
-23,
-23,
-31,
21,
-20,
24,
17,
12,
10,
-13,
25,
0,
8,
8,
-25,
-1,
-3,
-37,
-17,
13,
14,
17,
-9,
-20,
-33,
-2,
-4,
-49,
7,
-6,
26,
-30,
33,
-9,
10,
-32,
7,
-10,
4,
4,
-60,
-24,
45,
-10,
-23,
-20,
-13,
4,
-14,
31,
37,
7,
36,
-32,
-59,
-18,
13,
16,
4,
56,
-42,
-46,
-29,
62,
16,
22,
43,
-14,
-15,
33,
-16,
16,
-27,
-1,
6,
72,
-5,
-37,
14,
42,
20,
-41,
63,
26,
6,
-12,
11,
17,
-60,
-54,
-66,
2,
-72,
-9,
-66,
-1,
-22,
-3,
-2,
6,
46,
8,
30,
26,
-3,
-24,
-15,
36,
-5,
-9,
-4,
-48,
5,
5,
58,
22,
14,
-27,
-4,
-19,
-49,
21,
-6,
-31,
-73,
-24,
-34,
50,
0,
10,
-10,
19,
-9,
-16,
-3,
0,
-26,
13,
92,
2,
-79,
19,
-26,
-15,
35,
78,
-11,
13,
40,
-24,
9,
31,
-20,
-10,
33,
-7,
-56,
30,
11,
4,
-13,
-7,
-33,
-23,
-41,
-57,
65,
39,
9,
-2,
-23,
57,
17,
-43,
-24,
-42,
0,
3,
12,
29,
9,
30,
22,
-14,
-9,
-10,
-22,
54,
-3,
-12,
-35,
33,
-30,
30,
-1,
-5,
7,
24,
-3,
5,
0,
6,
-10,
18,
21,
-60,
-1,
-8,
-4,
-6,
-16,
-44,
24,
50,
7,
16,
-41,
16,
24,
29,
3,
29,
-60,
-8,
10,
-1,
20,
49,
-6,
7,
-21,
-13,
50,
49,
0,
-53,
-56,
-20,
18,
50,
-12,
-25,
46,
-4,
12,
16,
-17,
19,
-17,
36,
6,
23,
-29,
-17,
-30,
4,
-58,
32,
4,
5,
26,
-4,
4,
-65,
22,
20,
16,
-57,
-41,
-34,
-3,
-21,
-14,
30,
-31,
27,
-9,
21,
29,
-26,
56,
-31,
-6,
-19,
-59,
18,
-55,
-48,
8,
37,
-27,
5,
-8,
-50,
-7,
-40,
-26,
-42,
0,
72,
30,
17,
-11,
76,
19,
-57,
-34,
-2,
18,
-31,
4,
46,
44,
5,
-2,
19,
14,
37,
32,
37,
45,
19,
-18,
-10,
7,
64,
-2,
-38,
-34,
-16,
10,
1,
37,
45,
-15,
-11,
22,
47,
-37,
3,
19,
-45,
-3,
-27,
-22,
0,
79,
4,
38,
-5,
9,
6,
38,
-27,
-14,
58,
18,
-19,
-9,
-81,
24,
-33,
20,
-19,
-69,
-35,
-46,
10,
-5,
40,
10,
0,
30,
49,
16,
14,
13,
-13,
-27,
38,
-18,
-29,
-4,
-17,
-3,
-37,
9,
-18,
21,
-16,
2,
-47,
13,
-32,
-12,
-13,
-32,
-1,
-59,
0,
-18,
-19,
-4,
-13,
10,
-38,
-2,
-6,
17,
31,
-11,
33,
-4,
15,
28,
-18,
31,
-13,
-22,
21,
5,
30,
-33,
-2,
-37,
-30,
33,
15,
0,
19,
36,
-49,
1,
2,
23,
41,
-46,
5,
12,
29,
13,
0,
3,
14,
53,
16,
30,
6,
51,
29,
-40,
38,
7,
14,
5,
-47,
26,
3,
16,
-31,
18,
71,
35,
46,
7,
55,
3,
-55,
-19,
24,
-48,
8,
-29,
33,
-23,
39,
-50,
13,
-14,
-10,
39,
-20,
-14,
-6,
-31,
-16,
-2,
25,
6,
1,
16,
36,
2,
-6,
54,
47,
48,
47,
-41,
49,
20,
0,
25,
11,
14,
-28,
0,
9,
0,
-44,
29,
-37,
-59,
10,
-4,
19,
-17,
5,
40,
29,
28,
48,
-32,
-19,
67,
42,
-38,
-11,
7,
-14,
32,
-22,
-89,
-53,
-17,
-29,
-10,
3,
29,
-42,
-49,
49,
1,
-14,
61,
-16,
-23,
16,
-10,
11,
41,
-101,
-1,
13,
-19,
7,
17,
-42,
1,
18,
24,
-67,
40,
5,
-2,
19,
-10,
-2,
23,
9,
-6,
8,
-4,
9,
11,
19,
-7,
-11,
25,
61,
-28,
-47,
-32,
-45,
-56,
0,
-35,
5,
-49,
17,
18,
21,
-29,
4,
58,
-40,
-69,
-23,
-27,
-25,
-28,
21,
39,
40,
-11,
8,
20,
-24,
20,
48,
46,
-3,
44,
56,
-9,
-18,
-26,
27,
8,
38,
9,
51,
-49,
-38,
4,
-6,
22,
-38,
39,
-41,
-8,
-30,
-55,
4,
11,
27,
20,
-3,
-44,
-13,
37,
8,
49,
-56,
56,
3,
27,
18,
42,
44,
11,
0,
13,
5,
-28,
-21,
-39,
-12,
3,
21,
31,
45,
-41,
-38,
-26,
32,
-11,
2,
-1,
5,
9,
-38,
44,
59,
-26,
24,
-22,
0,
37,
2,
-6,
27,
-1,
53,
18,
-40,
-40,
45,
-50,
-17,
36,
14,
7,
0,
-9,
27,
-16,
-39,
-14,
26,
-1,
-16,
-59,
4,
50,
10,
-8,
-13,
3,
-26,
4,
7,
62,
-35,
-8,
-52,
21,
-21,
1,
-36,
-26,
-23,
35,
-11,
-13,
6,
12,
-3,
-12,
-1,
38,
-12,
-5,
-24,
24,
-8,
21,
-25,
19,
50,
-46,
21,
-34,
-7,
-20,
35,
6,
-64,
19,
-29,
-13,
-17,
21,
-39,
-27,
-12,
12,
30,
-15,
-35,
-6,
-16,
54,
-11,
45,
-10,
-7,
-8,
10,
-10,
27,
20,
35,
31,
-20,
-13,
15,
-22,
-35,
-36,
18,
16,
2,
24,
56,
-20,
-54,
-39,
23,
-24,
57,
32,
13
] |
Per Curiam.
Defendant was tried for and convicted by a jury of negligent homicide, MCLA § 750.324 (Stat Ann 1970 Cum Supp § 28.556). May 10, 1968, he was sentenced and he appeals. Four of the issues raised on appeal relate to jury instructions. A fifth issue raised on appeal, attacking the sufficiency of the testimony on the preliminary examination, was raised for the first time on motion for new trial. The issue was not preserved for appellate review. People v. Willis (1965), 1 Mich App 428.
At about .4:25 p.m. February 9,1967, defendant was operating his motor vehicle in a southerly direction on "Woodward Avenue in Detroit. At the intersection of Woodward and Montcalm Avenues, the traffic signal was red, requiring Woodward Avenue traffic to stop at Montcalm. Defendant proceeded through the red light without stopping and collided with a motor vehicle crossing Woodward Avenue in an easterly direction on Montcalm. The driver of the vehicle on Montcalm was injured and died as a result of the injuries.
At the conclusion of his jury instructions, the trial judge excused the jury and inquired of the prosecuting attorney if he was satisfied with the charge. The prosecuting attorney replied in the affirmative, and defense counsel stated, “No objection to the charge”. The errors relied on for appellate relief were not preserved. GCE 1963, 516.2; People v. Coleman (1968), 14 Mich App 515. A review of this record does not reveal that a clear injustice will be done if we abide by the rule. People v. Paul F. Baker (1967), 7 Mich App 471.
Affirmed. | [
-19,
15,
18,
-21,
-4,
-36,
0,
-7,
-27,
14,
1,
-12,
24,
-17,
-5,
-12,
-7,
-15,
-1,
-18,
-12,
-29,
-27,
-10,
-23,
-20,
25,
-16,
-18,
-21,
-3,
2,
-11,
39,
5,
-23,
13,
12,
22,
25,
14,
2,
-48,
-20,
-33,
-27,
39,
-13,
30,
-12,
-22,
39,
-11,
9,
-3,
-15,
17,
22,
-23,
0,
-13,
9,
-32,
7,
-29,
-23,
14,
-16,
-12,
-2,
-91,
-21,
-21,
-1,
8,
-11,
13,
16,
-22,
-12,
-45,
-20,
48,
-38,
22,
-27,
12,
-25,
-6,
-16,
-17,
-32,
-15,
18,
18,
11,
30,
-63,
15,
-52,
16,
51,
-11,
8,
-12,
-14,
-45,
-5,
17,
-9,
-7,
40,
-23,
-13,
-47,
-16,
13,
17,
5,
20,
18,
-21,
25,
14,
1,
7,
-18,
19,
-4,
-31,
-8,
30,
52,
-29,
-22,
34,
-9,
-35,
36,
50,
-2,
-8,
-14,
16,
56,
2,
-47,
16,
12,
6,
15,
40,
-28,
-12,
-27,
-27,
30,
-47,
48,
53,
0,
-5,
9,
29,
-10,
22,
-19,
-12,
-25,
-43,
-9,
-28,
93,
-11,
47,
11,
-22,
14,
-40,
-17,
4,
17,
1,
8,
-12,
-23,
-6,
9,
-19,
-36,
8,
23,
-15,
-27,
41,
34,
33,
41,
45,
32,
-8,
-12,
-13,
-10,
-34,
-11,
-26,
-28,
29,
-12,
-50,
-1,
5,
2,
51,
6,
0,
-52,
28,
-18,
-25,
-1,
24,
-53,
2,
-25,
-21,
-25,
-26,
25,
46,
-15,
-41,
-3,
-28,
27,
54,
-6,
-3,
2,
-13,
10,
53,
3,
-6,
94,
31,
8,
-15,
-16,
50,
-4,
5,
-32,
1,
-7,
19,
-8,
-19,
-13,
60,
59,
-9,
35,
-23,
46,
9,
-1,
-31,
-41,
0,
5,
-15,
19,
-37,
-35,
-17,
-14,
22,
29,
-28,
-33,
-33,
-7,
-5,
22,
-33,
-5,
14,
-4,
13,
-49,
-60,
22,
-5,
21,
19,
0,
-50,
-18,
19,
9,
18,
11,
27,
-29,
-17,
-24,
28,
22,
5,
15,
20,
40,
62,
36,
32,
7,
46,
0,
-6,
34,
-2,
-29,
-33,
19,
27,
-58,
-20,
-20,
-1,
51,
21,
37,
19,
-26,
26,
36,
4,
10,
-5,
-15,
9,
1,
26,
-18,
0,
73,
-32,
-23,
-26,
12,
24,
-42,
-2,
-23,
34,
-35,
-29,
38,
-18,
-46,
32,
46,
3,
-2,
21,
-27,
-15,
49,
-11,
-15,
-39,
4,
-59,
-40,
42,
-1,
33,
50,
-37,
-18,
9,
-63,
2,
-15,
24,
-14,
-9,
32,
-16,
-31,
-26,
-43,
9,
24,
-26,
41,
2,
16,
14,
22,
2,
22,
-29,
-13,
-21,
39,
46,
-10,
-25,
41,
70,
40,
-31,
-8,
2,
2,
-10,
-34,
-2,
-4,
36,
-8,
-30,
2,
16,
28,
-18,
-4,
-4,
-1,
25,
-86,
0,
40,
17,
-56,
26,
-28,
-31,
7,
8,
18,
-32,
-47,
-26,
-2,
13,
15,
9,
52,
-13,
-4,
-35,
28,
25,
-14,
-12,
11,
-18,
-50,
-47,
-38,
2,
-29,
-39,
0,
27,
-18,
-33,
10,
-9,
10,
-16,
-7,
-16,
32,
5,
15,
1,
8,
-6,
16,
-32,
-25,
-15,
5,
-1,
-26,
38,
37,
-2,
-10,
1,
35,
11,
7,
0,
-22,
-7,
-16,
-35,
6,
17,
-29,
40,
-43,
12,
0,
-21,
4,
4,
14,
17,
11,
6,
2,
59,
-12,
2,
-68,
17,
-13,
-25,
9,
-7,
7,
-22,
-48,
72,
30,
-26,
-2,
8,
25,
-63,
-4,
7,
-15,
-15,
25,
-18,
-13,
-3,
-12,
-39,
44,
55,
13,
28,
20,
-43,
-47,
-2,
-46,
-9,
-20,
-9,
-9,
-4,
-6,
22,
34,
-6,
14,
6,
-48,
32,
-34,
-9,
-3,
9,
-25,
-4,
29,
15,
25,
-41,
29,
0,
48,
-17,
22,
-8,
-37,
43,
34,
-29,
28,
-49,
18,
19,
-5,
-16,
7,
-11,
25,
21,
-10,
66,
7,
-27,
21,
42,
8,
-25,
-32,
33,
-63,
43,
-33,
-38,
0,
-18,
-1,
-32,
-37,
0,
35,
-17,
-15,
0,
-24,
-13,
-6,
0,
-16,
-59,
1,
8,
23,
-11,
-14,
-40,
-5,
29,
28,
0,
-50,
2,
58,
41,
-14,
8,
-9,
-37,
36,
-9,
-33,
-30,
18,
23,
-48,
3,
-14,
-10,
-1,
-28,
-39,
37,
24,
-41,
-53,
-33,
-1,
-5,
-29,
21,
-19,
-31,
17,
1,
1,
-12,
46,
-14,
16,
36,
-3,
-12,
-37,
-33,
-39,
29,
-55,
-19,
19,
37,
12,
-15,
58,
-10,
-22,
-25,
9,
46,
46,
-7,
-33,
11,
-3,
-18,
51,
-54,
3,
4,
-1,
19,
-32,
-3,
66,
-2,
-22,
16,
33,
11,
-43,
-7,
26,
22,
-25,
9,
-5,
-37,
-27,
22,
-6,
20,
52,
11,
-28,
15,
7,
10,
-7,
33,
-13,
-18,
-53,
-29,
20,
-10,
2,
-30,
-19,
-2,
-25,
2,
-3,
-3,
29,
27,
42,
-14,
-18,
47,
25,
-23,
-39,
37,
-49,
21,
14,
-11,
-13,
38,
38,
30,
-5,
-63,
-17,
37,
-23,
-73,
48,
-32,
-36,
8,
-15,
-24,
11,
4,
-12,
-7,
-3,
-5,
31,
-24,
10,
26,
9,
0,
48,
33,
-5,
-14,
-17,
57,
25,
47,
12,
44,
-11,
6,
3,
-12,
22,
47,
25,
64,
20,
-14,
-4,
50,
-16,
2,
-14,
2,
-24,
14,
-2,
17,
-24,
-14,
-10,
47,
0,
15,
33,
46,
-33,
4,
53,
-35,
0,
17,
75,
-44,
-34,
13,
-9,
-18,
36,
-34,
23,
-15,
-5,
8,
62,
-32,
39,
-19,
-4,
24,
-13,
-18,
22,
-13,
23,
34,
30,
-54,
0,
23,
19,
-14,
-45,
-27,
4,
-8,
32,
20,
5,
7,
20,
-5,
22,
-16,
10,
7,
-47,
50,
11,
12,
-13,
-30,
-23,
-74,
10,
26,
70,
-26,
8,
-34,
7,
-47,
35,
69,
-53,
-40,
15,
5,
17,
-10,
5,
14,
8,
-14,
2,
5,
-31,
23,
-2,
22,
-9,
-80,
26,
36,
-15,
-8,
45,
-31,
-20,
-22,
-30,
-42,
-60,
-1,
0,
1,
7,
12,
-43,
-10,
-5,
19,
-41,
-27,
1,
27,
3,
-17,
7,
16,
-8,
-49,
45,
-45,
3,
4,
-75,
4,
-8,
28,
11,
-49,
-15,
-11,
-3,
0,
36,
24,
-36,
73,
0,
-23,
-68,
0,
41,
2,
16,
20,
-31,
49,
-27,
23,
9,
-8,
-28,
-25,
-25,
92,
19,
23,
-13,
-5,
-12,
-10,
2,
-13,
13,
-10,
-4,
-43,
31,
6,
35,
15,
35,
0,
64,
27,
4,
26,
33,
46,
-10,
5,
18,
-25,
-11,
-34,
20,
5,
26,
-24,
-4,
-21,
0,
-11,
38,
-37,
-13
] |
Per Curiam.
Defendant, Frederick George Washington, pled guilty and was convicted of attempting to obtain property by false pretenses contrary to MCLA § 750.92 (Stat Ann 1962 Rev § 28.287); MCLA § 750.218 (Stat Ann 1962 Rev § 28.415). On appeal he contends that the trial court failed to establish all the required elements of the offense before accepting defendant’s guilty plea, and that the. trial court erred in its acceptance because of certain promises of leniency which were allegedly made to the defendant. The appellee has filed a motion to affirm pursuant to GCR 1963, 817.5(3).
A review of the plea transcript reveals that defendant’s contentions are without merit. It is well established that the elements of the crime charged need not be explained to a defendant by the court before accepting a plea of guilty. People v. Melvin (1969), 18 Mich App 652. Moreover, in People v. Shaffer (1966), 4 Mich App 192, this Court held that the claim of defendant to the effect that police officers promised leniency in the sentence if he would plead guilty was without merit where the record showed that the trial court fully advised defendant that if he pled guilty or was found guilty of the crime charged he would be sent to prison. Our examination of the record convinces us that the defendant, was fully accorded his rights pursuant to GCR 1963, 785.3(2).
The questions presented here on appeal are unsubstantial and require no argument or formal submission.
The motion to affirm the defendant’s conviction is granted. | [
45,
6,
15,
63,
-36,
-5,
-31,
-5,
-20,
9,
14,
-23,
7,
-39,
31,
-22,
14,
34,
35,
-22,
6,
-38,
-7,
16,
-12,
-3,
3,
60,
8,
18,
56,
38,
-4,
-70,
12,
-7,
14,
25,
7,
27,
-22,
38,
-16,
-12,
-46,
-11,
-45,
-8,
7,
-52,
-8,
-14,
35,
0,
-32,
-24,
-4,
15,
-9,
16,
18,
22,
-71,
-16,
-43,
0,
-7,
19,
-22,
-13,
6,
37,
8,
10,
46,
20,
-1,
21,
19,
32,
8,
16,
35,
-16,
14,
25,
36,
-20,
25,
6,
10,
-13,
-14,
-40,
-32,
4,
66,
-9,
0,
-37,
-66,
-16,
-31,
1,
39,
18,
-43,
-18,
9,
39,
-3,
-3,
-5,
-62,
-31,
-44,
-9,
-33,
-45,
-37,
16,
-7,
38,
88,
-2,
-47,
-13,
-48,
-16,
16,
16,
28,
-25,
-21,
44,
18,
-12,
-21,
21,
31,
-13,
-21,
13,
5,
48,
-17,
13,
-1,
40,
11,
0,
29,
-16,
-44,
-6,
6,
32,
-32,
-23,
24,
-1,
17,
-69,
18,
15,
-40,
-47,
16,
-4,
-22,
-7,
-5,
36,
-7,
8,
-31,
2,
-5,
-30,
10,
-37,
41,
31,
16,
-9,
9,
-25,
3,
-15,
-64,
6,
39,
-3,
-8,
56,
65,
1,
58,
15,
-8,
5,
-21,
18,
24,
10,
-8,
7,
-36,
25,
-4,
-41,
-23,
9,
-54,
18,
6,
-24,
-29,
29,
20,
-38,
-8,
-50,
21,
13,
-14,
25,
29,
0,
22,
24,
0,
17,
20,
-3,
37,
16,
-14,
10,
28,
-40,
-20,
32,
-30,
-5,
-3,
31,
22,
-20,
-32,
8,
27,
13,
30,
-32,
-43,
57,
21,
-31,
-18,
2,
67,
-4,
19,
-76,
-21,
-36,
-32,
-52,
2,
-16,
-20,
-4,
52,
52,
21,
-54,
43,
-23,
-3,
6,
-9,
23,
17,
-32,
21,
0,
23,
34,
12,
39,
-13,
-27,
30,
52,
-11,
-33,
-5,
-51,
-25,
28,
-9,
26,
-50,
8,
-8,
42,
0,
-31,
-19,
22,
8,
3,
37,
-12,
38,
32,
-29,
31,
-52,
-47,
-4,
4,
-61,
38,
-24,
60,
-66,
8,
-35,
-17,
4,
-26,
-23,
-9,
23,
20,
-5,
-25,
24,
0,
2,
12,
-29,
3,
34,
-9,
77,
-6,
-21,
-18,
-3,
-12,
-36,
-24,
-53,
-25,
-30,
29,
-24,
12,
21,
22,
-4,
3,
14,
-30,
-4,
12,
31,
-3,
-84,
-36,
-13,
-50,
4,
37,
-28,
-83,
40,
-12,
-23,
39,
-35,
1,
10,
-10,
24,
-18,
-10,
-33,
-37,
-12,
-41,
41,
32,
47,
3,
28,
-24,
1,
2,
62,
-25,
-22,
-2,
-29,
3,
-20,
13,
11,
69,
50,
48,
-9,
-37,
-13,
-18,
66,
-16,
0,
-33,
7,
-7,
29,
43,
-16,
41,
-8,
-21,
0,
-7,
15,
-54,
1,
45,
-38,
0,
25,
4,
3,
12,
10,
29,
20,
-42,
-66,
7,
-10,
-22,
13,
10,
-1,
-55,
3,
23,
49,
-34,
33,
0,
34,
4,
-32,
-2,
42,
-48,
-30,
-51,
44,
-22,
-16,
4,
3,
37,
-6,
-22,
3,
38,
-11,
-7,
13,
5,
13,
-66,
-27,
-33,
-67,
-46,
13,
-25,
-33,
-20,
23,
-15,
24,
19,
1,
-12,
-2,
35,
-26,
-18,
-21,
5,
26,
24,
14,
0,
72,
38,
-21,
0,
-33,
-4,
29,
14,
38,
-38,
-17,
-13,
37,
-18,
0,
1,
3,
26,
-17,
-24,
-43,
8,
34,
-36,
-41,
-42,
58,
-8,
-32,
-7,
-13,
-39,
-2,
15,
-25,
-9,
0,
40,
2,
6,
14,
23,
-36,
18,
8,
14,
-4,
-23,
2,
-25,
17,
-4,
0,
-35,
52,
-6,
-20,
19,
22,
-25,
20,
0,
-9,
0,
-51,
23,
5,
5,
13,
26,
44,
-6,
71,
17,
-3,
-59,
-43,
9,
-3,
15,
-28,
-47,
-68,
37,
69,
-50,
15,
-23,
-52,
10,
-22,
50,
46,
33,
-44,
6,
61,
28,
37,
17,
0,
-49,
44,
-28,
7,
13,
7,
-16,
-7,
-32,
-1,
-12,
-11,
-8,
9,
-42,
-10,
-43,
-77,
-2,
-72,
24,
29,
-14,
-18,
0,
-8,
50,
-26,
16,
-18,
-20,
26,
70,
8,
22,
33,
33,
-4,
18,
19,
-28,
3,
4,
4,
6,
48,
12,
-34,
48,
0,
-21,
35,
-1,
-47,
8,
5,
36,
36,
-56,
41,
34,
-34,
-31,
-1,
39,
27,
0,
15,
2,
10,
-20,
-2,
-30,
-4,
-29,
6,
-1,
-37,
8,
20,
5,
-14,
21,
22,
-39,
26,
26,
32,
20,
11,
44,
1,
12,
-46,
-42,
-47,
0,
28,
-44,
5,
-28,
-39,
9,
-32,
58,
-28,
-10,
-40,
18,
-9,
-14,
-29,
6,
12,
-11,
36,
-32,
-9,
-34,
44,
10,
12,
5,
41,
15,
-19,
-5,
19,
-9,
-9,
-9,
-14,
24,
-33,
-7,
5,
15,
15,
-18,
-5,
0,
49,
6,
43,
48,
7,
42,
2,
-33,
-59,
-4,
-38,
36,
-17,
3,
-30,
16,
-38,
32,
2,
19,
-30,
-32,
38,
19,
-53,
-10,
-7,
-16,
27,
12,
15,
-6,
-44,
34,
11,
-22,
-12,
-23,
-38,
15,
0,
25,
-39,
17,
38,
26,
-17,
-3,
-11,
-17,
9,
-18,
8,
-30,
-1,
25,
1,
54,
18,
25,
29,
-7,
-62,
-35,
11,
-16,
28,
-49,
23,
-10,
19,
42,
-18,
19,
19,
18,
65,
-38,
-25,
-39,
22,
-31,
-6,
49,
-19,
-12,
16,
4,
-5,
11,
-20,
-34,
24,
0,
28,
31,
-5,
9,
7,
15,
15,
2,
-31,
-18,
27,
21,
0,
29,
18,
-43,
35,
4,
-46,
1,
-9,
33,
-7,
-40,
8,
-28,
20,
42,
-15,
2,
13,
18,
10,
6,
-9,
35,
-23,
-8,
10,
17,
14,
34,
-48,
-68,
-63,
23,
47,
24,
-61,
42,
-39,
-13,
1,
-47,
13,
-2,
49,
-1,
-23,
2,
10,
28,
49,
3,
-25,
31,
-6,
10,
4,
-28,
-13,
-4,
-10,
-24,
41,
-14,
-15,
31,
-27,
36,
-2,
-27,
0,
-27,
-41,
1,
-22,
-14,
37,
-22,
7,
17,
39,
-45,
-15,
7,
-19,
-34,
-45,
0,
-57,
41,
-59,
0,
2,
2,
-17,
27,
-4,
24,
-8,
-31,
5,
-24,
-7,
-40,
-58,
51,
-4,
-2,
41,
10,
33,
-24,
10,
64,
21,
-36,
-5,
-10,
41,
0,
20,
-34,
-13,
-48,
42,
-38,
-13,
-5,
33,
8,
35,
38,
-55,
-62,
54,
-17,
1,
11,
-8,
22,
6,
-36,
-33,
-26,
-35,
16,
11,
1,
-11,
-7,
1,
-8,
-21,
-13,
-9,
4,
18,
18,
-11,
-5,
-3,
5,
3,
19,
1,
47,
-14,
47
] |
Per Curiam.
Defendant, without counsel, pled guilty of the crime of breaking and entering, con trary to MCLA 1970 Cum Supp § 750.110 (Stat Ann 1970 Cum Supp § 28.305). The only issue raised on appeal is whether defendant intelligently waived his right to counsel.
We have reviewed the transcript of the guilty plea proceedings, and find that on several occasions defendant was informed that he had a right to appointed counsel. On all such occasions, except one wherein defendant did not speak but nodded in an affirmative manner, defendant replied that he understood his right but chose not to be represented by counsel.
We find no error in these proceedings.
Affirmed. | [
18,
-11,
-5,
3,
-75,
-23,
-13,
43,
-50,
49,
0,
14,
-4,
-51,
-9,
-41,
27,
31,
11,
21,
20,
-12,
15,
39,
-28,
-49,
16,
49,
-2,
36,
32,
31,
16,
-41,
-19,
-8,
21,
44,
25,
12,
17,
7,
46,
-3,
-45,
-23,
12,
-9,
27,
-6,
21,
-12,
-7,
3,
-9,
-24,
7,
-6,
-7,
13,
34,
43,
-58,
-21,
12,
-31,
-8,
24,
-6,
-1,
-14,
2,
-7,
26,
39,
2,
23,
-13,
9,
20,
6,
10,
57,
14,
12,
-44,
-8,
-41,
12,
-33,
-1,
21,
18,
-30,
-9,
39,
-2,
-19,
41,
-40,
-64,
-63,
-23,
-9,
72,
-32,
-47,
-27,
16,
28,
4,
15,
4,
-9,
-9,
27,
-24,
-6,
-27,
-40,
10,
39,
30,
14,
-5,
-31,
-3,
-32,
-8,
15,
-49,
37,
-52,
-31,
29,
14,
-28,
-14,
54,
-14,
-24,
11,
59,
4,
50,
3,
-28,
22,
26,
36,
2,
30,
-54,
7,
-3,
43,
-36,
-16,
-15,
7,
-10,
-28,
-56,
-29,
15,
23,
-37,
-6,
-3,
-31,
7,
-11,
40,
31,
8,
-21,
-23,
68,
-17,
36,
-10,
5,
-14,
-17,
-1,
32,
16,
-1,
-30,
-29,
-4,
38,
-15,
-46,
44,
8,
-9,
49,
26,
0,
-48,
10,
-5,
8,
40,
-24,
-30,
3,
-12,
-46,
20,
-4,
-45,
-49,
16,
-15,
-12,
-26,
-20,
27,
-56,
-36,
-22,
-6,
-34,
-21,
-22,
19,
20,
-3,
7,
-32,
-7,
30,
29,
47,
-5,
-35,
60,
-18,
-38,
-9,
19,
-42,
22,
20,
35,
36,
-32,
-31,
12,
14,
34,
40,
-16,
-3,
54,
33,
-51,
1,
1,
9,
-38,
15,
-76,
27,
-6,
-18,
-53,
-1,
-2,
23,
24,
33,
0,
14,
-47,
40,
-31,
-35,
20,
18,
-11,
20,
-31,
20,
-10,
4,
55,
1,
2,
-6,
-7,
0,
45,
8,
-34,
-9,
-82,
-5,
17,
18,
-24,
-38,
-11,
-9,
33,
-5,
-6,
8,
16,
56,
-2,
22,
4,
7,
-3,
0,
-2,
-15,
-74,
-15,
35,
-2,
1,
-64,
71,
-30,
19,
-14,
-17,
-3,
10,
-1,
-12,
54,
19,
-16,
5,
47,
24,
-29,
-10,
-36,
-5,
-33,
20,
21,
-48,
14,
7,
-17,
15,
-6,
24,
-34,
-47,
9,
-8,
-16,
45,
-11,
-2,
-19,
-4,
0,
-16,
52,
23,
4,
14,
-46,
-48,
-10,
-74,
8,
75,
-46,
-53,
20,
11,
-35,
19,
-3,
-5,
26,
-32,
2,
-6,
35,
-56,
-51,
31,
-57,
-29,
18,
24,
48,
48,
1,
1,
-30,
60,
1,
-26,
-28,
-55,
23,
4,
46,
-38,
74,
-1,
68,
-20,
-14,
29,
-9,
52,
1,
-38,
-55,
41,
9,
10,
0,
-32,
54,
-37,
-21,
12,
-30,
0,
-38,
35,
8,
-62,
5,
38,
42,
-1,
-22,
-45,
2,
61,
-23,
-57,
-9,
0,
-24,
19,
41,
10,
10,
4,
2,
15,
16,
11,
-45,
23,
5,
-37,
-6,
34,
-28,
-26,
-34,
7,
-5,
-2,
8,
14,
41,
-25,
16,
-11,
52,
7,
21,
21,
3,
14,
22,
-26,
-9,
-12,
-50,
-12,
-4,
-11,
4,
40,
-59,
-4,
28,
8,
-38,
-55,
28,
7,
9,
-51,
-16,
-8,
1,
-17,
17,
41,
6,
-36,
37,
-18,
-1,
-15,
-38,
23,
2,
-13,
12,
3,
-47,
9,
-18,
4,
57,
-64,
9,
-22,
18,
59,
-9,
-11,
-18,
27,
-9,
-25,
-15,
18,
-31,
12,
18,
-20,
6,
-2,
30,
27,
23,
15,
16,
0,
8,
-36,
-3,
-17,
14,
-12,
41,
6,
-2,
-4,
-11,
47,
6,
0,
27,
-60,
20,
38,
20,
12,
22,
-25,
33,
-12,
7,
-9,
-1,
7,
-33,
13,
69,
3,
-57,
-54,
10,
-14,
1,
9,
-44,
-80,
-9,
21,
-58,
-31,
-39,
-52,
-41,
-14,
50,
-4,
0,
-37,
1,
32,
0,
30,
7,
12,
-24,
94,
-27,
-3,
-24,
-19,
-19,
-1,
8,
-1,
-11,
-19,
17,
-9,
-10,
-3,
-51,
-34,
-3,
-20,
-40,
40,
-16,
-9,
-18,
-14,
0,
34,
17,
-35,
-2,
2,
21,
-10,
-39,
47,
46,
69,
-4,
27,
0,
16,
22,
-1,
4,
23,
-12,
-25,
19,
13,
-34,
36,
17,
-17,
8,
31,
71,
-46,
-38,
45,
2,
-7,
-13,
6,
39,
64,
38,
-12,
28,
-58,
-52,
-32,
-56,
32,
-76,
-25,
-18,
-5,
9,
18,
13,
12,
21,
58,
-40,
16,
-26,
74,
12,
-13,
18,
-16,
-4,
10,
55,
45,
-11,
-5,
-40,
-52,
-7,
-48,
-18,
-47,
26,
-7,
-36,
-79,
25,
-2,
23,
38,
-15,
9,
7,
-38,
-3,
-1,
-19,
28,
-8,
-19,
-26,
41,
-1,
-17,
1,
-54,
-30,
36,
32,
3,
48,
-35,
-3,
-33,
16,
-16,
-7,
22,
57,
57,
2,
1,
20,
-9,
31,
26,
-28,
-23,
29,
-52,
17,
-6,
4,
-13,
70,
-36,
18,
-20,
22,
-33,
-12,
61,
8,
-57,
36,
-20,
47,
22,
8,
-36,
16,
-26,
-8,
16,
-4,
-19,
-3,
-36,
24,
53,
56,
-29,
49,
35,
44,
68,
4,
-11,
1,
18,
21,
59,
7,
-3,
-17,
-24,
59,
22,
8,
17,
-41,
-14,
-18,
7,
1,
34,
-27,
41,
-22,
19,
17,
-7,
-21,
-26,
28,
36,
-58,
3,
-14,
-26,
-37,
-10,
87,
-25,
-34,
-10,
-29,
-24,
-1,
-9,
42,
11,
29,
22,
13,
-5,
-12,
27,
7,
60,
-22,
9,
-28,
19,
15,
3,
39,
23,
-64,
0,
36,
-29,
-35,
-9,
-1,
-39,
0,
56,
-25,
-22,
11,
77,
-15,
-5,
13,
14,
8,
-2,
16,
11,
43,
-42,
-10,
26,
-9,
-61,
-44,
0,
27,
27,
-10,
-50,
36,
3,
3,
29,
-28,
-15,
-16,
41,
-11,
20,
17,
26,
37,
25,
-1,
-37,
-16,
22,
29,
-17,
8,
-24,
14,
-17,
27,
4,
0,
-34,
51,
6,
-2,
20,
-33,
0,
-37,
-37,
-25,
37,
7,
43,
-33,
50,
-49,
10,
5,
-19,
28,
-30,
-7,
-51,
10,
-24,
11,
-68,
-13,
7,
-35,
-13,
5,
-52,
-17,
-3,
43,
25,
-23,
-35,
-4,
-87,
-16,
-15,
0,
-6,
-4,
25,
-36,
-1,
0,
46,
-16,
5,
12,
42,
-27,
-15,
45,
18,
-9,
6,
-95,
10,
6,
-21,
38,
-21,
18,
-13,
-59,
58,
-46,
11,
5,
6,
14,
10,
-57,
31,
-37,
-65,
5,
-5,
17,
-36,
37,
-36,
30,
-39,
-6,
-6,
-8,
46,
-54,
1,
-27,
-23,
5,
10,
23,
-50,
32,
-41,
25
] |
Danhop, J.
On October 25, 1968 plaintiff filed a motion for judgment on a settlement agreement. The motion stated in part:
“Now comes Charles C. Hill and requests that this court enter its order of judgment on the terms and conditions of a certain settlement agreement entered into by the parties hereto set forth in the form of an agreement, a copy of which is attached hereto, containing 14 pages, having been executed by Charles C. Hill, plaintiff.
“1. This cause was scheduled for trial August 20,‘ 1968, pretrial conference having been held previously.
“2. On August 20, and August 21,1968, the parties and their attorneys and other advisors met and spent many hours discussing settlement of this cause. These discussions culminated in the execution of ‘Memorandum of Understanding’, dated August 21, 1968, executed by plaintiff, Charles C. Hill, and defendant, McGregor Manufacturing Corporation, by its vice-president, Robert L. Clapham, a true copy of which is attached hereto.
“3. Pursuant to the understanding of the parties and the terms and conditions of ‘Memorandum of Understanding’, attorneys for the plaintiff prepared drafts of agreements that embodied the ‘Memorandum of Understanding’. Plaintiff’s attorneys made certain changes in the draft prepared by defendant’s attorneys and submitted a revised agreement to defendant’s attorneys on October 4, 1968.
“4. The agreement prepared by plaintiff sets forth the intention of the parties that was the basis of the settlement of this matter reflected in ‘Memorandum of Understanding’.
“5. Defendant refuses to execute the settlement agreement.”
On December 3, 1968 the lower court signed an order of judgment which stated in part:
“It is ordered, that ‘Memorandum of Understanding’ dated August 21, 1968, a copy of which is attached hereto, be, and the same hereby is, entered as the judgment of this court.”
Defendant corporation has appealed contending that the parties did not intend the one-page “Memorandum of Understanding” to he an enforceable contract but only a memorandum of the day’s negotiations. In support of that position defendant points out, among other things, that the document prepared by two lawyers is captioned “Memorandum of Understanding” rather than “Settlement Agreement” or “Contract,” that the typical formal language of a contract was not used, and that many essential issues were not included.
Defendant’s arguments are persuasive. Additionally, plaintiff’s motion for judgment on a settlement agreement stated that he was requesting relief based on a 14-page agreement drafted and revised after the “Memorandum of Understanding” was written and purportedly incorporating the intent thereof. That position is inconsistent with a claim that plaintiff intended the one-page “Memorandum of Understanding” to be an enforceable settlement agreement.
From the pleadings it is evident that these were complicated lawsuits involving patents, manufacturing rights, use and ownership of hardware, and contribution of the parties. We find the one-page August 21, 1968 “Memorandum of Understanding” so cursory in its treatment of these matters as to convince us that the parties did not intend that document to be an enforceable agreement. Therefore, the lower court erred in entering it as the judgment of the court. See Hansen v. Catsman (1963), 371 Mich 79; and Professional Facilities Corporation v. Marks (1964), 373 Mich 673.
Reversed and remanded for further proceedings not inconsistent with this opinion. Costs to defendant.
J. H. Gillis, P. J., concurred. | [
-27,
-78,
12,
20,
12,
-5,
-8,
9,
-15,
35,
30,
36,
-11,
58,
-20,
-16,
-7,
11,
24,
-16,
27,
-43,
-21,
51,
50,
35,
25,
-83,
37,
23,
-14,
26,
-49,
-59,
-53,
-37,
55,
2,
46,
-15,
10,
-1,
11,
-41,
-50,
-39,
-13,
-25,
31,
-45,
61,
-5,
9,
-31,
-9,
-8,
-19,
-1,
-18,
33,
-4,
-31,
21,
38,
-4,
-16,
13,
-29,
0,
32,
-71,
5,
30,
-24,
50,
-40,
-36,
-8,
-35,
-12,
79,
19,
-7,
0,
19,
40,
18,
-6,
69,
11,
-6,
32,
-6,
45,
-22,
-9,
-29,
0,
-18,
49,
-49,
-12,
-13,
11,
-9,
-12,
-5,
-5,
43,
62,
14,
21,
-15,
-33,
-46,
-57,
23,
-18,
22,
-16,
-6,
-4,
13,
14,
-33,
10,
-35,
-41,
30,
-1,
-3,
15,
-29,
8,
-7,
15,
36,
-38,
-1,
-12,
-25,
-45,
-52,
-37,
-14,
57,
-98,
-39,
-59,
-26,
-1,
-20,
-27,
40,
-17,
-39,
10,
-36,
38,
-4,
32,
13,
15,
10,
-23,
-14,
-49,
-20,
6,
11,
20,
-16,
-6,
-27,
5,
55,
12,
4,
-7,
5,
-15,
-21,
-38,
-35,
-6,
22,
-54,
88,
2,
36,
-12,
-13,
-44,
34,
5,
-4,
-33,
-7,
17,
17,
-36,
-55,
0,
-44,
-32,
-9,
0,
-5,
-11,
-8,
-16,
-41,
-24,
-46,
-11,
29,
41,
-10,
-11,
6,
24,
7,
-44,
16,
-41,
-48,
29,
13,
-12,
-16,
-47,
41,
-29,
22,
59,
31,
14,
36,
24,
46,
32,
-6,
-58,
-2,
10,
35,
5,
16,
44,
-28,
-19,
28,
3,
4,
14,
-24,
-39,
51,
-44,
-22,
12,
44,
-37,
38,
-8,
-14,
-35,
-44,
3,
80,
16,
-1,
-11,
8,
-28,
-32,
-42,
-6,
-9,
-11,
26,
23,
-16,
-59,
-5,
11,
58,
10,
-51,
26,
36,
-59,
0,
-16,
60,
19,
32,
5,
-34,
-48,
-40,
-72,
23,
-30,
5,
-12,
-12,
-2,
-19,
-29,
-21,
-47,
18,
-17,
-15,
-22,
-3,
5,
48,
-55,
-15,
45,
34,
18,
-23,
-20,
56,
-8,
-3,
13,
26,
30,
2,
-18,
19,
-7,
2,
29,
-27,
32,
15,
67,
-9,
1,
-13,
65,
2,
0,
-42,
11,
-7,
-71,
-22,
-10,
13,
-31,
-37,
-36,
-49,
42,
42,
-17,
-21,
-8,
27,
9,
57,
-11,
13,
25,
-2,
40,
-1,
-81,
-32,
-70,
0,
3,
-46,
62,
-23,
8,
51,
13,
70,
-63,
-66,
39,
10,
-4,
-50,
-46,
7,
4,
-2,
7,
22,
25,
-15,
-4,
28,
21,
-6,
-55,
22,
54,
10,
-25,
0,
2,
23,
-15,
-39,
10,
-28,
-27,
50,
-40,
23,
-38,
-45,
-3,
-40,
-17,
-7,
-2,
56,
-26,
-8,
-4,
-29,
66,
46,
-32,
24,
22,
-21,
11,
-25,
6,
3,
2,
22,
40,
37,
-10,
-12,
-14,
7,
8,
4,
9,
7,
-2,
-42,
66,
37,
43,
-41,
-33,
3,
-3,
-12,
-11,
9,
-23,
39,
-25,
-28,
10,
-57,
-30,
51,
54,
-12,
-38,
0,
-27,
-4,
-36,
-15,
73,
-1,
-2,
3,
-8,
0,
-35,
-39,
-15,
9,
-25,
-8,
-44,
-53,
11,
-21,
-14,
-14,
2,
0,
15,
1,
34,
-15,
-18,
-18,
-16,
48,
58,
9,
-40,
29,
15,
-28,
14,
1,
25,
-7,
62,
14,
-53,
-35,
-48,
-41,
-18,
33,
14,
-26,
-21,
43,
8,
3,
-27,
1,
4,
-26,
33,
73,
3,
-24,
-21,
-15,
-5,
-20,
0,
-2,
32,
-11,
9,
39,
-34,
64,
-28,
15,
22,
32,
44,
-2,
-4,
-17,
51,
11,
12,
20,
30,
0,
15,
6,
37,
-27,
12,
51,
34,
4,
-39,
-24,
22,
6,
-14,
-9,
19,
33,
17,
-18,
-33,
68,
9,
-3,
-13,
-38,
7,
-20,
-29,
-6,
-35,
-5,
0,
-30,
17,
27,
8,
-2,
-27,
-49,
-39,
8,
0,
-13,
-61,
-15,
-61,
-54,
8,
-12,
-33,
8,
3,
22,
11,
-30,
8,
3,
-17,
13,
-2,
-38,
33,
3,
61,
7,
-12,
12,
-6,
-5,
32,
-3,
4,
-27,
-40,
-18,
39,
44,
-39,
7,
3,
-20,
28,
20,
16,
-8,
19,
7,
-23,
-20,
-21,
49,
2,
-10,
-9,
0,
-3,
-40,
-17,
14,
-26,
57,
4,
13,
-29,
6,
42,
24,
-21,
-8,
78,
40,
17,
28,
52,
13,
1,
15,
-59,
8,
13,
37,
11,
-12,
63,
-33,
17,
-56,
-10,
13,
8,
23,
19,
27,
-7,
20,
-41,
20,
5,
-11,
-4,
-68,
75,
49,
-19,
32,
0,
-59,
-2,
16,
69,
-7,
20,
-18,
-1,
-6,
33,
72,
1,
-51,
20,
17,
14,
12,
-27,
48,
-5,
-3,
14,
-7,
3,
-24,
-34,
1,
-53,
-8,
-21,
-41,
8,
-3,
40,
-12,
31,
-15,
-35,
8,
-41,
38,
12,
-4,
11,
7,
-13,
-13,
-9,
-14,
-39,
12,
-31,
-21,
59,
74,
-21,
20,
-16,
5,
-13,
-5,
5,
-58,
-30,
2,
12,
20,
1,
-7,
-14,
12,
17,
-52,
-31,
29,
-27,
-4,
56,
7,
-26,
4,
-14,
16,
19,
-27,
36,
-26,
-41,
-23,
-23,
1,
43,
28,
23,
22,
33,
34,
14,
-13,
-18,
5,
-43,
21,
45,
-40,
-12,
2,
12,
-22,
12,
-51,
11,
66,
15,
-46,
-19,
-40,
11,
51,
-65,
2,
-8,
10,
9,
62,
15,
7,
-10,
36,
-35,
-22,
-9,
31,
-1,
-79,
54,
17,
-60,
52,
-9,
-25,
23,
-7,
-23,
-16,
-44,
14,
9,
-27,
-5,
-52,
18,
53,
15,
-72,
7,
43,
14,
43,
-29,
-46,
8,
2,
1,
0,
-33,
30,
-3,
-14,
18,
-1,
2,
-7,
-10,
9,
-9,
8,
15,
-24,
-6,
-4,
36,
-14,
-19,
42,
-15,
8,
20,
28,
11,
27,
15,
-10,
44,
0,
53,
1,
40,
58,
-39,
28,
-9,
-29,
31,
16,
-1,
68,
20,
40,
-24,
-29,
-57,
10,
6,
9,
42,
52,
24,
51,
-25,
74,
-20,
-15,
17,
-16,
-19,
-74,
14,
-41,
-44,
-17,
-21,
6,
-51,
-16,
-77,
45,
0,
-72,
-27,
-31,
25,
-13,
40,
-11,
31,
-2,
-34,
-15,
-4,
2,
-49,
64,
16,
-17,
14,
-20,
-33,
15,
32,
-27,
-18,
40,
3,
41,
-5,
29,
-28,
-7,
-23,
-19,
39,
-12,
45,
10,
25,
8,
-20,
36,
23,
-21,
-2,
3,
-9,
45,
4,
21,
26,
-21,
-30,
18,
55,
-44,
-24,
24,
-4,
-9,
0,
31,
15,
-7,
62,
-6,
37,
-27,
-44,
26,
9,
9,
-57,
-40,
-8
] |
Per Curiam.
Defendant’s jury trial resulted in his conviction of breaking and entering in violation of MCLA § 750.110 (Stat Ann 1968 Cum Supp § 28.305). He was sentenced and he appeals. The substantiality of the appeal is demonstrated by defendant’s first issue and certain facts of record.
Defendant first asks, “Was the court’s denial of defendant’s motion to endorse additional res gestae witnesses error?”. The record indicates that the alleged additional “res gestae” witnesses are two police officers from an adjoining community who were called to a hospital in that community to arrest defendant about two hours after the offense occurred. The offense took place in Macomb County. The hospital where defendant was arrested was in Detroit and all arresting officers were Detroit policemen. There is nothing in the record to indicate that the so-called “res gestae” witnesses had any knowledge of or connection with the offense other than as hereinbefore indicated.
Neither physically nor legally can one raise himself by his own bootstraps. Calling a witness “res gestae” in brief or argument does not make that witness res gestae. That determination is made from facts, and on this record, the alleged “res gestae” witnesses were not such.
At the close of the prosecution’s case, defendant moved to dismiss. On appeal, he contends that denial of this motion was not only error, but it deprived him of due process contrary to US Const, Am 5. On the strength of a conflict in testimony relating to the identification of defendant, he now argues that the essential elements of the crime were not established, hence his motion should have been granted. The resolution of the conflicting testimony with respect to identification was for the jury, and the record contains ample evidence to establish all elements of the offense. The motion was properly denied.
During his examination by the prosecuting attorney, a police officer gave a voluntary and unresponsive answer relating to another witness. Defendant moved for mistrial, which was denied, but the court immediately ordered the answer stricken and instructed the jury to disregard it. The alleged error is no longer a reversible error on this record. People v. Podsiad (1940), 295 Mich 541.
There was ample evidence, if believed by the jury, to establish defendant’s guilt beyond a reasonable doubt.
Affirmed. | [
35,
2,
-20,
-4,
2,
-4,
-7,
-22,
-49,
62,
7,
-3,
41,
-12,
18,
-12,
22,
8,
60,
-45,
26,
-48,
-37,
52,
-43,
-8,
38,
57,
-36,
3,
-7,
3,
10,
-10,
2,
-66,
42,
13,
10,
32,
20,
-31,
-15,
2,
-59,
-27,
-19,
13,
-6,
-26,
54,
-9,
-78,
27,
-13,
34,
8,
-42,
6,
-63,
8,
48,
-22,
-30,
-26,
-8,
18,
13,
-51,
-26,
1,
-1,
12,
-21,
-44,
4,
-10,
1,
-5,
4,
0,
-3,
46,
-5,
56,
-18,
41,
-39,
19,
-42,
38,
-14,
-55,
-32,
-2,
-14,
40,
-12,
38,
1,
-64,
48,
-25,
45,
-15,
0,
-17,
15,
8,
-48,
19,
21,
21,
-28,
2,
8,
2,
-7,
-3,
-7,
-20,
-18,
67,
45,
-10,
19,
45,
-25,
9,
26,
-2,
-16,
38,
9,
6,
-11,
3,
15,
67,
24,
-9,
50,
26,
-18,
20,
-3,
-12,
6,
28,
-9,
3,
26,
-14,
2,
-53,
23,
-41,
-25,
-5,
21,
0,
43,
-52,
-21,
24,
9,
-18,
21,
10,
-28,
10,
-12,
41,
-30,
4,
-12,
-51,
21,
1,
5,
-27,
48,
9,
-38,
29,
-25,
9,
-10,
-1,
-6,
-27,
45,
13,
14,
74,
77,
-36,
19,
18,
-6,
-9,
-7,
-7,
5,
-29,
-10,
39,
-21,
12,
13,
-7,
17,
-20,
-21,
22,
-40,
19,
-4,
-23,
27,
-44,
5,
-19,
17,
12,
-3,
26,
12,
-18,
20,
4,
-18,
-1,
8,
-15,
-37,
3,
14,
41,
19,
-24,
-7,
37,
-11,
-1,
27,
20,
-9,
30,
1,
8,
7,
13,
-15,
-69,
-41,
12,
-1,
-65,
23,
-5,
59,
-15,
24,
-46,
29,
18,
35,
-19,
-31,
-23,
11,
-9,
11,
25,
-37,
-43,
34,
2,
13,
-54,
19,
-13,
5,
-52,
3,
-18,
23,
14,
27,
25,
-18,
-77,
12,
11,
-14,
7,
-7,
-31,
-7,
5,
18,
-24,
-12,
-53,
-43,
0,
-2,
-3,
20,
21,
31,
25,
36,
30,
-1,
-30,
-16,
32,
-29,
-42,
-23,
-8,
-38,
-9,
-3,
0,
-53,
-11,
-15,
-46,
15,
8,
50,
-9,
-9,
-2,
-8,
-6,
16,
22,
-8,
-14,
-33,
-20,
37,
-9,
28,
2,
7,
41,
-17,
55,
4,
16,
4,
-22,
-34,
18,
-11,
14,
3,
-29,
53,
28,
30,
-55,
-23,
14,
48,
-8,
-51,
-14,
12,
-36,
-42,
43,
-61,
12,
33,
-13,
-27,
-4,
-39,
-23,
15,
0,
-40,
-12,
29,
-60,
-24,
11,
-57,
-27,
49,
15,
-3,
20,
24,
-15,
-10,
78,
40,
-27,
-15,
-24,
10,
-15,
14,
-13,
28,
-4,
32,
13,
-40,
11,
-6,
26,
-10,
25,
-35,
7,
-17,
-6,
-20,
-37,
8,
-5,
-23,
26,
23,
6,
-58,
49,
11,
-30,
-3,
-8,
3,
-11,
-13,
-6,
1,
2,
19,
-25,
2,
-25,
-8,
21,
30,
0,
-25,
24,
59,
14,
-1,
19,
-19,
-3,
-57,
-30,
-1,
23,
-1,
-54,
-32,
21,
20,
12,
-5,
-27,
7,
-41,
28,
-13,
16,
-18,
-20,
11,
16,
12,
-33,
-41,
10,
1,
-30,
-11,
19,
-27,
40,
22,
36,
-9,
-7,
-61,
-8,
-6,
-29,
0,
15,
-37,
-1,
-7,
-16,
9,
-40,
0,
10,
-43,
52,
-18,
8,
-16,
-44,
25,
-32,
39,
0,
-1,
-27,
8,
-2,
-26,
11,
-45,
-12,
-12,
8,
99,
-7,
22,
-36,
10,
3,
-18,
3,
6,
27,
5,
27,
8,
0,
23,
-23,
-35,
-24,
8,
36,
13,
-18,
-13,
21,
-10,
-52,
12,
-11,
-4,
-45,
-13,
11,
25,
44,
-5,
-19,
-4,
-4,
36,
-18,
-10,
76,
-24,
-6,
5,
2,
37,
25,
-14,
-26,
-8,
49,
53,
-6,
13,
40,
1,
-6,
-2,
6,
-53,
-2,
20,
-44,
0,
2,
-82,
-27,
35,
22,
86,
10,
-80,
33,
36,
-27,
53,
-6,
19,
-67,
47,
26,
-46,
-13,
-2,
5,
-28,
15,
-24,
80,
-11,
37,
-24,
-13,
-31,
-8,
-26,
-20,
-41,
-18,
-3,
0,
-37,
-40,
-1,
42,
-4,
9,
-29,
6,
32,
27,
29,
-7,
19,
-41,
10,
-21,
20,
-21,
26,
59,
-14,
-51,
46,
-2,
7,
-9,
34,
-25,
-17,
32,
-40,
23,
-6,
23,
-15,
-25,
41,
-5,
17,
13,
19,
3,
14,
-12,
11,
8,
-12,
0,
-5,
-20,
-7,
-29,
15,
-53,
-11,
30,
-1,
22,
-11,
44,
31,
-5,
10,
-29,
27,
32,
-26,
-26,
9,
-1,
7,
0,
-17,
-23,
18,
-7,
-5,
-14,
-24,
23,
-10,
1,
29,
5,
-52,
8,
27,
7,
-50,
30,
-3,
14,
-8,
-15,
24,
-12,
53,
-63,
-8,
-16,
48,
-27,
-3,
4,
11,
-7,
-34,
-11,
-24,
16,
20,
-29,
25,
-41,
37,
-27,
-1,
-1,
26,
16,
5,
53,
-20,
57,
13,
-9,
-30,
9,
41,
16,
-21,
-44,
-47,
-2,
-6,
-20,
41,
35,
-30,
-29,
32,
-13,
-28,
22,
1,
-25,
24,
-6,
29,
36,
4,
-1,
-6,
-16,
-19,
-5,
-60,
-9,
54,
-42,
-70,
6,
58,
6,
17,
-14,
-7,
12,
5,
13,
43,
-29,
-32,
1,
-16,
10,
26,
-27,
32,
-32,
-16,
-27,
-23,
-37,
-18,
-11,
19,
-63,
34,
41,
30,
-52,
-25,
3,
48,
-62,
-8,
30,
10,
0,
26,
54,
13,
-27,
-13,
36,
-20,
10,
24,
0,
10,
57,
50,
42,
-14,
-32,
8,
12,
40,
20,
20,
37,
5,
21,
-11,
6,
-12,
-1,
28,
28,
-33,
-69,
-5,
-23,
-31,
-35,
21,
-2,
58,
1,
8,
48,
1,
4,
21,
29,
0,
2,
13,
-19,
18,
-30,
15,
-2,
12,
-54,
-39,
-9,
20,
79,
10,
0,
-35,
-15,
22,
-25,
32,
15,
4,
-5,
-24,
21,
-5,
-3,
42,
-27,
-26,
24,
7,
-1,
21,
-14,
37,
21,
-29,
-16,
34,
-26,
-16,
73,
15,
-26,
2,
-26,
-36,
27,
-30,
19,
8,
42,
-41,
-35,
11,
13,
31,
-22,
-18,
1,
-5,
-26,
-40,
20,
-29,
14,
-54,
59,
-45,
3,
-31,
-51,
11,
-22,
4,
23,
9,
-49,
-26,
20,
0,
24,
-28,
14,
10,
-6,
-25,
-44,
17,
15,
30,
-22,
15,
-47,
-17,
-14,
-14,
7,
-49,
31,
-2,
-29,
5,
-12,
9,
-37,
-19,
28,
-26,
16,
7,
4,
-14,
2,
-28,
62,
-19,
-67,
13,
29,
-29,
25,
38,
39,
17,
-15,
-4,
-8,
-3,
-14,
28,
-34,
53,
0,
-22,
-2,
-27,
3,
-34,
11,
-17,
54,
5,
17
] |
Per Curiam.
This is an appeal, upon leave granted by this Court, by plaintiffs, Leonard and Magalene De Villez, from an order of the circuit court for the county of Wayne, dismissing plaintiffs’ second count of a two count complaint, against defendant, Anthony Schifano, doing business as the Happy Bar.
The facts are properly stated in plaintiffs’ brief on appeal, vis.:
“The plaintiff Leonard De Villez claims to have been assaulted by one Lonnie Maynard while lawfully upon the premises of the defendant on July 26, 1968. On September 18, 1968, the plaintiff, together with his wife, brought suit against the defendant for injuries and damages allegedly resulting from the assault. Plaintiffs’ complaint contains two counts, the first alleging an unlawful sale of intoxicants to the said Lonnie Maynard which was a proximate cause of the assault and the second alleging a violation of the defendant’s common-law duty to maintain his premises in a reasonably safe condition for business invitees, also a proximate cause of the assault.
“On November 8, 1968, the defendant brought on for hearing a motion to dismiss count two of plaintiffs’ complaint on the basis that the plaintiffs’ sole remedy is under the dramshop act and that the exertion [sic] of the common-law negligence action is improper. The plaintiffs filed an answer to defendant’s motion alleging that the common-law negligence count was properly brought and joined with the dramshop action under Michigan law.
“On December 17, 1968, an order was entered by the trial court dismissing count two of plaintiffs’ complaint, the court being of the opinion that it must be guided by the decision of Kangas v. Suchorski (1964), 372 Mich 396.”
Two issues are presented on this appeal:
1. Whether the remedy of a patron at a bar against the bar owner for injuries suffered from an assault by a fellow patron is limited to an action under the dramshop act?
2. Whether a patron of a bar may join a count based on negligence which is recognized in the common law as a valid cause of action to a count based on the dramshop act?
We deem these issues can be best dealt with together, and we therefore proceed on this basis.
There can be no question but that an action based on an unlawful sale of intoxicants must be brought under the dramshop act, because the action is a creature of statute, not recognized in the common law as a valid cause of action. Jones v. Bourrie (1963), 369 Mich 473; Le Gault v. Klebba (1967), 7 Mich App 640.
It is likewise true that the development of the common law has recognized, on the basis of principles of master and servant relationship and safe premises for business invitees, liability on the part of tavern owners for the violation of certain duties owed to their customers. Included is the right to recover for injuries resulting from the failure of a tavern owner to exercise reasonable care to provide safe premises for his customers. 45 Am Jur 2d, Intoxicating Liquors, §§ 553-557, pp 852-857. Gorby v. Yeomans (1966), 4 Mich App 339. See, also, 70 ALR2d 628.
The allegations of count two of plaintiffs’ complaint in the instant case pleaded an action squarely within the guidelines set out in Gorby, supra, and without reference to an unlawful sale of intoxicants.
The defendant cites three Supreme Court decisions in support of his position that plaintiffs’ second count must fall. Plaintiffs assert in regard to these cases the following: “The cases dealing with the exclusiveness of the remedy have all involved attempts to avoid the lack of one of the prerequisites to recover under the statute by alleging a common-law cause of action. See for example Jones v. Bourrie (1963), 369 Mich 473 and Holland v. Eaton (1964), 373 Mich 34, both dealing with attempts to avoid the two year statute of limitations contained in the dramshop act. See also Kangas v. Suchorski, supra, involving an attempt to avoid the requirement of the dramshop act (as interpreted by the courts) that the plaintiff be an innocent party.”
We note that the Kangas case, supra, involved an appeal after trial by jury which found for the defendant tavern owner. The facts are stated in the opinion, pp 398, 399. These facts established that plaintiff was not an innocent person, and that his cause of action was based on the dramshop act, including an unlawful sale. No proofs were offered by plaintiff to show facts to justify a count based upon common-law negligence.
In the recent case of Baker v. Golematis (1969), 17 Mich App 383, this Court held on pp 384, 385:
“Defendant argues that the dramshop act provides an exclusive remedy, and thus a companion allegation of common-law negligence is improper. Holland v. Eaton (1964), 373 Mich 34; Kangas v. Suchorski (1964), 372 Mich 396. Therefore, defendant contends that the court erred in the husband’s case by denying defendant’s motion to dismiss the allegations of common-law negligence, and in the wife’s case by denying defendant’s motion to require the wife to elect her remedy asserted under the dramshop act.
“The Holland decision and the language cited therefrom by defendant concerned the narrow question of whether suits under the dramshop act are excluded from application' of the savings provisions of the general statutes of limitations. Hence, Holland’s language of exclusive remedy does not support or establish the principle that there is an exclusive remedy under the dramshop act in all barroom brawls. The Kcmgas decision also contains language apparently referring to a dramshop exclusive remedy principle, but the case cited therein also concerned a statute of limitations problem. Thus, neither case cited by defendant supports his position.
“There is no rule that a claim for damages under the dramshop act cannot be brought with a companion action alleging liability for negligence arising out of the same facts. In fact, a bar owner is subject to much more liability for injury to his patrons than that encompassed by the dramshop act for sale of alcoholic beverages to intoxicated persons. Gorby v. Yeomans (1966), 4 Mich App 339. Moreover, the law favors the combination of related claims in one action and penalizes the failure to join all claims arising out of the same transaction or occurrence. GCR 1963,203.”
We hold that the dramshop act affords the exclusive remedy for injuries arising out of an unlawful sale, giving away, or furnishing of intoxicants. King v. Partridge (1968), 9 Mich App 540, 543. However, the act does not control and it does not abrogate actions arising out of unlawful or negligent conduct of a tavern owner other than selling, giving away, or furnishing of intoxicants, provided the unlawful or negligent conduct is recognized as a lawful basis for a cause of action in the common law. We conclude that the second count of plaintiffs’ complaint as pleaded was permissible and shall be reinstated.
Reversed. Costs to plaintiffs.
MCLA § 436.22 (Stat Ann 1970 Cum Supp § 18.993).
“The testimony shows that plaintiff and defendant Exelby drank together in defendant Suehorski’s bar. After Exelby had become in toxieated. Suehorski served him further intoxicants. Plaintiff matched coins with Exelby to determine who was to pay for drinks. Some of the drinks served to Exelby after plaintiff knew that Exelby had become intoxicated were paid for by plaintiff and some for both of them were paid for by Exelby. A dispute arose between them as to whether plaintiff owed Exelby for some of the drinks. Exelby then struck plaintiff, causing the damage for whieh this suit was brought. Because plaintiff paid for some of the beer furnished Exelby while in an intoxicated condition, both courts below held he was not an innocent third party and, therefore, not entitled to recover from the bar owner or his surety under the statute in question.
“Plaintiff stresses that the statute forbids the sale of liquor to an intoxicated person and imposes civil liability upon the retailer for injuries resulting to any person by reason of such selling. He denies that the right to such recovery is limited by the statute to plaintiffs who are ‘innocent persons’.”
See, also, Mwnuel v. Weitzmm, post, p 96.—Beporter. | [
-42,
0,
25,
1,
-29,
-17,
11,
37,
-24,
47,
-16,
1,
9,
53,
57,
13,
21,
17,
-25,
18,
44,
12,
-28,
11,
1,
9,
22,
4,
17,
-5,
-32,
15,
12,
0,
12,
51,
0,
-21,
21,
-3,
-24,
26,
50,
7,
5,
2,
5,
6,
65,
-23,
-21,
10,
-24,
-2,
-6,
-39,
-5,
-9,
42,
7,
-39,
63,
15,
-3,
63,
-31,
5,
-32,
3,
-54,
2,
20,
-41,
-37,
-41,
-30,
-42,
11,
20,
5,
2,
40,
61,
24,
-60,
36,
10,
-23,
-15,
-31,
16,
5,
-29,
-29,
68,
21,
-23,
64,
21,
-16,
14,
-37,
-29,
-6,
-16,
3,
10,
10,
-62,
-65,
-45,
1,
29,
-11,
10,
-10,
9,
-6,
-27,
11,
30,
77,
52,
-14,
-22,
23,
12,
1,
-23,
37,
23,
36,
27,
-10,
-31,
29,
3,
75,
23,
-8,
32,
30,
9,
-25,
12,
41,
-11,
7,
22,
-67,
-31,
0,
-3,
20,
-25,
-3,
28,
-37,
8,
-4,
23,
-31,
10,
26,
4,
-31,
5,
-20,
28,
24,
9,
-46,
-12,
46,
20,
23,
-8,
-30,
-53,
-9,
-19,
-5,
0,
-40,
10,
-16,
3,
-104,
-2,
14,
36,
-42,
-36,
25,
25,
29,
25,
42,
19,
-64,
-24,
-26,
-19,
-13,
32,
-3,
0,
-20,
-20,
-30,
-20,
-18,
-16,
-60,
9,
-50,
38,
-70,
-12,
0,
-66,
-36,
0,
-31,
-3,
-67,
-1,
-75,
7,
-22,
-33,
2,
3,
35,
-3,
-24,
20,
19,
39,
8,
-36,
34,
-42,
-46,
-3,
2,
-8,
35,
23,
50,
49,
23,
-14,
-42,
-16,
-64,
3,
19,
-8,
10,
-23,
54,
5,
-24,
-23,
-16,
10,
17,
-60,
21,
-1,
8,
52,
-17,
-9,
-14,
-14,
61,
80,
23,
16,
-5,
38,
-32,
30,
46,
-35,
9,
-15,
9,
-7,
8,
-79,
-5,
9,
52,
12,
0,
3,
87,
9,
-20,
35,
-7,
-39,
-24,
-53,
-16,
5,
-69,
-26,
29,
-9,
-49,
1,
-42,
-4,
63,
8,
-31,
0,
-6,
-22,
-6,
-49,
-93,
45,
4,
52,
-7,
15,
15,
4,
-70,
-29,
8,
40,
-19,
-44,
-4,
15,
8,
3,
22,
24,
31,
-18,
1,
-24,
-47,
-16,
-19,
31,
67,
42,
50,
-42,
-26,
0,
31,
9,
-14,
-14,
21,
36,
18,
-2,
45,
-16,
66,
-36,
24,
22,
14,
-69,
-67,
10,
-21,
15,
37,
49,
-56,
15,
-37,
22,
-13,
-68,
-73,
7,
24,
-27,
13,
36,
-50,
23,
-3,
-44,
1,
22,
10,
-8,
-12,
18,
35,
-3,
-43,
28,
4,
34,
14,
-37,
-8,
3,
24,
-27,
44,
11,
27,
-42,
10,
44,
-17,
-5,
-90,
54,
-53,
16,
-24,
-6,
28,
-73,
2,
-29,
38,
0,
-38,
-13,
18,
9,
-23,
-52,
-50,
-36,
-19,
36,
43,
-26,
-24,
3,
-11,
13,
-13,
5,
0,
-32,
33,
2,
58,
29,
-13,
24,
-26,
-32,
-9,
0,
10,
-49,
5,
37,
-9,
-33,
-16,
10,
-25,
-13,
52,
28,
31,
-11,
4,
-25,
80,
11,
38,
-46,
-34,
-2,
2,
-52,
-28,
37,
-38,
33,
24,
-20,
-5,
-37,
38,
-72,
18,
-13,
-2,
-55,
51,
46,
-14,
-15,
35,
-7,
61,
-52,
-1,
34,
0,
-65,
-9,
12,
19,
4,
7,
24,
-70,
17,
33,
-25,
-37,
19,
-19,
26,
-21,
18,
-35,
-18,
-76,
10,
22,
32,
-31,
-3,
19,
-11,
28,
22,
11,
28,
27,
7,
-24,
60,
61,
-7,
-9,
-24,
-26,
-14,
41,
-8,
9,
21,
-5,
-10,
-32,
-3,
34,
9,
-9,
45,
-10,
51,
25,
-53,
59,
34,
-36,
-5,
6,
-1,
-38,
-21,
0,
9,
7,
54,
53,
-26,
6,
22,
-30,
19,
-14,
-24,
-6,
17,
16,
27,
-20,
-4,
-9,
17,
21,
8,
-37,
30,
-40,
-24,
-16,
-61,
-6,
-5,
-5,
15,
4,
-32,
-45,
-57,
0,
-32,
-1,
11,
73,
22,
-29,
-26,
59,
-20,
-1,
-19,
-47,
-6,
28,
-66,
-28,
18,
-50,
-12,
43,
20,
30,
-32,
-21,
-48,
57,
-3,
33,
6,
9,
-27,
22,
-42,
5,
-21,
51,
-25,
25,
-17,
-52,
-7,
6,
-10,
-41,
-55,
15,
-27,
51,
-7,
-37,
61,
-9,
-1,
22,
-34,
35,
28,
45,
42,
-43,
-28,
13,
10,
7,
-57,
-16,
61,
-30,
13,
-14,
8,
-18,
-8,
-39,
-42,
33,
5,
-34,
-21,
42,
-17,
1,
3,
-14,
-12,
5,
15,
12,
-9,
33,
-8,
-40,
-19,
-36,
29,
28,
-43,
-22,
31,
0,
-20,
-45,
2,
12,
-64,
-22,
-2,
-23,
12,
17,
-15,
4,
23,
-36,
21,
-18,
19,
-3,
8,
39,
1,
8,
-51,
19,
-9,
-17,
-21,
-40,
43,
-56,
-18,
-6,
14,
27,
-18,
25,
-38,
26,
-10,
1,
7,
-37,
-47,
14,
-34,
5,
13,
-15,
3,
11,
-55,
-5,
38,
-15,
-11,
39,
23,
-67,
-17,
10,
8,
-49,
22,
-1,
7,
-8,
25,
-10,
-6,
-13,
30,
-44,
0,
12,
-6,
-45,
-4,
-23,
-28,
10,
60,
-4,
-11,
-24,
5,
-13,
45,
16,
34,
-2,
1,
-1,
12,
-1,
9,
21,
32,
28,
-34,
33,
-41,
-3,
-22,
-12,
16,
-9,
-15,
13,
-10,
2,
-44,
17,
-46,
-11,
37,
0,
16,
12,
0,
6,
43,
-44,
-21,
-22,
-4,
13,
-21,
77,
65,
-21,
20,
-14,
-48,
-14,
-25,
-40,
-2,
-59,
-16,
24,
-1,
-59,
-12,
38,
78,
22,
4,
16,
-20,
-6,
1,
29,
-6,
72,
21,
-17,
-18,
64,
14,
10,
-32,
-61,
-2,
-62,
-2,
-38,
-1,
-7,
14,
-23,
23,
-13,
-52,
32,
60,
68,
-1,
-2,
2,
12,
-36,
11,
34,
-65,
-17,
10,
-5,
-8,
3,
14,
43,
7,
-44,
34,
-11,
7,
19,
39,
9,
2,
-13,
37,
28,
-5,
50,
30,
-2,
-6,
-31,
-8,
-31,
20,
5,
21,
-39,
-30,
-1,
-32,
-14,
-20,
29,
-2,
24,
-6,
18,
78,
18,
45,
2,
-9,
6,
-6,
18,
8,
-38,
-23,
-9,
16,
7,
-4,
18,
55,
-42,
35,
43,
51,
-26,
47,
-11,
-20,
-7,
15,
29,
0,
-19,
-9,
11,
13,
-33,
1,
-5,
-8,
18,
20,
10,
-44,
-17,
-10,
-27,
28,
-27,
34,
-58,
-5,
-24,
34,
4,
16,
-33,
43,
-12,
4,
-30,
20,
86,
49,
-5,
-4,
64,
-4,
37,
-12,
18,
19,
-23,
10,
58,
-1,
-32,
10,
-6,
3,
-70,
29,
-43,
35,
-38,
7
] |
Neff, P.J.
Plaintiff appeals as of right from an order of the circuit court denying his motion for entry of a qualified domestic relations order (qdro). We affirm.
I
Plaintiff and defendant divorced in 1985 after approximately twenty-four years of marriage. The property settlement provision in the parties’ judgment of divorce provided for the distribution of plaintiff’s pension benefits in the following manner:
It is further ordered and adjudged that the Defendant, Marianne Boonstra, shall be entitled to . . . one-half of Plaintiff’s pension payable upon his retirement.
Neither party contested the validity of any part of the judgment, including this provision.
In 1993, in the course of examining an early-retirement option, plaintiff discovered that Ciba-Geigy Pension Plan, the company processing his pension benefits, interpreted the judgment of divorce as requiring half of the total amount of the monthly pension benefits to be paid to defendant. This amount includes contributions made after the parties’ divorce.
Plaintiff then instituted this postjudgment action claiming that the court could not award post-divorce pension contributions to defendant and seeking to have the court order that defendant was entitled to only those pension contributions made while the parties were married. Plaintiff’s counsel argued that he was not seeking to modify the divorce judgment, but merely to have the judgment properly interpreted.
Defendant argued in response that plaintiff failed to cite any authority that would allow him to bring this action 7½ years after the entry of the judgment of divorce. Defendant also argued that the award was not ambiguous and it needed no interpretation or modification.
The circuit court, in its written opinion, determined that although the 1985 judgment was not ambiguous, and that it awarded defendant postdivorce pension contributions, the court had erred in awarding the postdivorce contributions. The court held that, in spite of this error, it could not award plaintiff’s requested relief under either MCR 2.611 or 2.612(C)(1)(a)-(c), because the time limitations for claiming error under those court rules had expired.
The court went on, however, to examine whether it had jurisdiction to grant this type of pension benefit. According to the court, if it lacked such jurisdiction, it could grant plaintiffs requested relief pursuant to MCR 2.612(C)(1)(d). The court determined that even though it erred in granting the postdivorce contributions, it did have jurisdiction to make the grant on the basis of MCL 552.18(1); MSA 25.98(1). Accordingly, it found its judgment voidable, not void, and determined that plaintiffs attack on the judgment was not timely. The circuit court also denied plaintiffs motion for reconsideration.
II
We first examine whether the circuit court had subject-matter jurisdiction to adjudicate the parties’ rights to postdivorce pension contributions. We find that circuit courts enjoy such jurisdiction.
A court’s jurisdiction in divorce matters is strictly statutory. Stamadianos v Stamadianos, 425 Mich 1, 5; 385 NW2d 604 (1986). Two statutes define the circuit court’s power to distribute pensions. MCL 552.18(1); MSA 25.98(1) provides:
Any rights in and to vested pension, annuity, or retirement benefits, or accumulated contributions in any pension, annuity, or retirement system, payable to or on behalf of a party on account of service credit accrued by the party during marriage shall be considered part of the marital estate subject to award by the court under this chapter.
MCL 552.101(4); MSA 25.131(4) provides:
Each judgment of divorce or judgment of separate maintenance shall determine all rights of the husband and wife in and to all of the following:
(a) Any pension, annuity, or retirement benefits.
(b) Any accumulated contributions in any pension, annuity, or retirement system.
(c) Any right or contingent right in and to unvested pension, annuity, or retirement benefits.
In construing jurisdictional statutes, retention of jurisdiction is presumed, and any intent to divest a court of jurisdiction must be clearly and unambiguously stated. In re Waite, 188 Mich App 189, 202; 468 NW2d 912 (1991).
Plaintiff argues that the language in MCL 552.18(1); MSA 25.98(1) limits the court’s jurisdiction to contributions made "during the marriage.”
We disagree. This language does not expressly restrict the circuit court’s jurisdiction to pension contributions made within the confines of the marriage. Although that statutory provision provides that pension contributions made during the marriage must be considered, it does not expressly provide that contributions made before or after the marriage may not be considered. That is, the language is inclusive and mandates what must be taken into account, but does not exclude consideration of other contributions. See Booth v Booth, 194 Mich App 284, 291; 486 NW2d 116 (1992). Nothing in the language of the two statutes can be construed as a clear and unambiguous divestiture of jurisdiction.
We are in agreement with the opinion of Murphy, J., concurring in part and dissenting in part, in Kurz v Kurz, 178 Mich App 284, 299-301; 443 NW2d 782 (1989), and adopt his reasoning as our own. Pension benefits are assets to be considered part of the marital estate subject to distribution in the discretion of the circuit court. See Sands v Sands, 442 Mich 30, 34; 497 NW2d 493 (1993). To hold otherwise would be to restrict the ability of the trial court to reach one of the primary objectives of any divorce proceeding: to arrive at a property settlement that is fair and equitable in light of all the circumstances. Ackerman v Ackerman, 163 Mich App 796, 807; 414 NW2d 919 (1987). In order to ensure that equity can be done, the trial court’s discretion must not be restricted unduly with regard to the distribution of assets, including premarriage and postdivorce pension contributions.
Accordingly, we conclude that the circuit court had the jurisdiction to consider postdivorce pension contributions in its award.
III
Plaintiff also argues that the circuit court erred in refusing to grant his requested relief pursuant to MCR 2.612(C)(1)(f). We find no error in the court’s ruling.
We already have determined that courts may properly consider postdivorce pension contributions. Thus, whether the court erred in this specific grant, for instance if it failed to properly apply MCL 552.23(1); MSA 25.103(1), is not before us. Plaintiff’s 7½-year delay in bringing this action has put any such error beyond our review. See MCR 7.204 and Altman v Nelson, 197 Mich App 467, 478; 495 NW2d 826 (1992).
We conclude that the circuit court properly denied plaintiff his requested relief.
Affirmed.
Although the title on plaintiffs motion suggests it was for entry of a qdro, the relief plaintiff actually sought was an amendment of the judgment of divorce.
Plaintiff did not request his relief based on these court rules, the court considered them sua sponte.
See n 2, supra. | [
-5,
-23,
-33,
37,
-20,
-15,
14,
50,
-15,
20,
-47,
4,
47,
39,
9,
1,
14,
-6,
-30,
17,
-23,
-7,
-41,
76,
25,
32,
-5,
3,
41,
19,
32,
-5,
-30,
-27,
-49,
-25,
-57,
5,
28,
42,
15,
-86,
24,
35,
-59,
1,
-28,
-33,
7,
-46,
-5,
24,
22,
14,
34,
13,
-15,
-9,
-13,
-35,
-27,
1,
-8,
2,
37,
30,
18,
42,
-27,
-7,
-13,
-56,
-12,
-19,
-8,
-47,
19,
44,
22,
0,
34,
-42,
-28,
-30,
0,
1,
7,
30,
0,
32,
-44,
40,
-26,
-21,
-59,
13,
-20,
29,
54,
100,
-4,
-54,
26,
2,
38,
3,
21,
-9,
27,
-18,
16,
6,
6,
-33,
-1,
-22,
-37,
-10,
33,
-25,
0,
-13,
30,
20,
62,
-1,
32,
-6,
-43,
30,
0,
24,
4,
-75,
17,
-49,
11,
-3,
-35,
1,
25,
-6,
24,
-63,
32,
13,
10,
-35,
-24,
-21,
-12,
0,
-8,
39,
-14,
-13,
11,
-31,
57,
-46,
15,
26,
-3,
49,
-17,
-28,
24,
35,
12,
-29,
27,
29,
-29,
-42,
35,
14,
16,
-32,
-2,
23,
-7,
30,
0,
14,
-23,
0,
-9,
-14,
22,
47,
0,
-54,
49,
26,
-23,
3,
36,
67,
18,
-1,
-20,
-42,
33,
53,
2,
-19,
29,
-41,
-29,
-43,
2,
-5,
16,
-68,
-40,
-50,
14,
-27,
-31,
2,
1,
-2,
-18,
5,
-60,
-52,
-19,
-52,
0,
-28,
-49,
9,
16,
48,
-22,
-50,
-9,
47,
14,
-10,
2,
-17,
-12,
-16,
-14,
-5,
-27,
9,
-8,
34,
-61,
-36,
15,
41,
10,
-35,
-69,
24,
26,
35,
19,
58,
-31,
2,
15,
2,
6,
9,
2,
3,
36,
6,
16,
4,
-9,
-58,
-61,
27,
-25,
12,
-17,
68,
-43,
-26,
-26,
2,
-19,
-22,
1,
41,
13,
-18,
2,
30,
31,
9,
-17,
1,
19,
11,
-16,
13,
36,
-11,
26,
-27,
-16,
-33,
-25,
-16,
41,
-35,
21,
-22,
27,
14,
-32,
-8,
-12,
-56,
-26,
26,
39,
12,
30,
-1,
15,
-11,
-30,
41,
-73,
14,
-15,
9,
46,
-45,
12,
41,
-23,
-20,
0,
20,
44,
-28,
16,
20,
20,
-25,
46,
-3,
-33,
31,
44,
-31,
-4,
36,
34,
-77,
-11,
23,
18,
39,
6,
-62,
13,
28,
24,
-31,
-22,
13,
8,
37,
1,
-44,
-14,
21,
-28,
44,
-32,
56,
-21,
-10,
19,
-20,
23,
-5,
-79,
-22,
3,
-40,
-44,
-26,
24,
-15,
-5,
52,
31,
-1,
26,
23,
10,
9,
-2,
-1,
-25,
-28,
-17,
-51,
-66,
40,
38,
-15,
34,
27,
11,
1,
52,
-31,
19,
34,
24,
-13,
-26,
24,
-19,
-55,
15,
2,
-4,
0,
-50,
18,
-7,
-66,
39,
29,
-30,
-21,
-53,
54,
12,
12,
48,
-2,
7,
1,
-31,
1,
23,
19,
5,
-19,
6,
23,
-32,
-85,
28,
10,
-43,
-19,
31,
-3,
11,
-9,
39,
-45,
-47,
34,
21,
19,
-48,
0,
-15,
25,
-10,
34,
-1,
-7,
-20,
-3,
3,
27,
-9,
-33,
-19,
4,
-17,
-27,
-35,
-23,
-11,
-14,
28,
-5,
10,
-52,
-19,
16,
-12,
-52,
26,
13,
64,
26,
20,
-56,
-13,
-36,
-6,
29,
-38,
-30,
26,
15,
19,
-13,
25,
-20,
67,
23,
0,
-99,
-29,
-26,
-3,
47,
9,
28,
31,
-3,
12,
-5,
22,
-30,
25,
23,
-10,
9,
-34,
-43,
-7,
48,
-14,
47,
-6,
35,
3,
20,
-12,
0,
16,
-31,
-2,
34,
16,
-32,
1,
35,
31,
-64,
34,
43,
2,
49,
-34,
-48,
-24,
-31,
-9,
-9,
-10,
-6,
-2,
12,
36,
14,
38,
-14,
-38,
-30,
-16,
35,
54,
-10,
-26,
0,
27,
17,
34,
7,
-41,
13,
33,
7,
34,
-45,
6,
3,
-47,
7,
34,
1,
-64,
-38,
-47,
-28,
-4,
34,
-9,
0,
0,
41,
-11,
-1,
28,
-40,
-7,
-39,
-4,
33,
32,
46,
-25,
-25,
-40,
-17,
28,
13,
2,
54,
61,
-75,
25,
-19,
40,
50,
-59,
0,
-1,
-16,
33,
32,
23,
38,
11,
-30,
16,
27,
17,
-22,
6,
115,
-18,
33,
-2,
-41,
17,
-5,
5,
-19,
-32,
-31,
13,
25,
-1,
52,
2,
11,
-30,
-27,
13,
-31,
24,
54,
69,
-3,
-15,
7,
-53,
16,
-73,
-39,
-12,
-4,
1,
49,
-14,
-11,
51,
-7,
24,
3,
12,
-8,
-25,
-7,
-5,
-4,
15,
6,
1,
25,
-3,
-3,
-24,
-35,
-22,
-7,
-18,
8,
-14,
13,
1,
-31,
-22,
-33,
19,
-71,
-9,
-51,
5,
13,
-57,
-16,
-7,
20,
-19,
30,
35,
-42,
-14,
18,
-3,
0,
-51,
53,
19,
-38,
-28,
-9,
42,
22,
37,
22,
-13,
20,
17,
27,
0,
20,
-17,
5,
18,
-14,
26,
22,
3,
37,
22,
-11,
-55,
-36,
-20,
1,
-39,
-25,
-16,
3,
20,
27,
-15,
1,
49,
-21,
4,
18,
20,
3,
14,
18,
-13,
28,
46,
0,
29,
-29,
35,
-63,
4,
19,
-12,
-87,
-19,
-57,
47,
12,
6,
-5,
26,
-53,
-3,
3,
-16,
-19,
0,
44,
4,
21,
2,
-17,
12,
-16,
35,
76,
0,
41,
1,
15,
-32,
-65,
14,
29,
-33,
41,
25,
28,
27,
-32,
-14,
39,
-20,
-40,
14,
17,
-26,
-18,
14,
38,
-2,
-9,
-21,
-50,
-25,
37,
62,
29,
-53,
22,
3,
-25,
17,
-61,
2,
2,
7,
19,
-42,
-7,
-3,
-9,
-10,
37,
31,
-2,
19,
-42,
-68,
-2,
39,
-16,
-11,
0,
-12,
-7,
-10,
52,
14,
20,
-7,
-21,
-40,
-5,
-13,
-71,
-15,
21,
-2,
60,
-41,
5,
17,
21,
-6,
-21,
-35,
-10,
-4,
-11,
28,
4,
6,
-8,
-45,
-43,
30,
-2,
10,
-10,
-4,
-5,
22,
-10,
24,
-23,
44,
4,
60,
12,
-7,
33,
-13,
21,
-58,
-27,
-16,
-23,
50,
0,
-31,
35,
37,
-15,
12,
14,
30,
5,
-35,
35,
22,
5,
-8,
-46,
-53,
-22,
12,
-8,
-22,
-22,
29,
11,
-27,
-57,
17,
17,
1,
-28,
12,
-13,
-35,
0,
-35,
39,
13,
14,
75,
-24,
24,
-17,
-65,
20,
10,
-67,
-11,
-65,
-10,
-63,
38,
16,
-14,
-46,
47,
7,
-9,
9,
0,
12,
-29,
15,
-34,
-13,
28,
-22,
16,
26,
2,
7,
15,
5,
45,
20,
14,
19,
4,
-24,
22,
-49,
-29,
37,
-26,
30,
12,
-12,
-10,
6,
20,
43,
-41,
12,
-8,
-30,
-19,
-19,
-14,
-7
] |
McAlvay, J.
Suit was brought by plaintiff upon a fire-insurance policy of the Michigan standard form for the sum of $600, issued by defendant to plaintiff November 29, 1902, for one year, and covered the ice houses of plaintiff on Detroit river in Wyandotte, Mich. The application for insurance was verbal. The lots upon which the buildings stood were not owned by plaintiff, but were occupied by it as lessee. The land belonged to the Marx estate when the policy was issued and was subsequently partitioned. Nothing was said by either party at the time the policy issued relative to the title or interest of plaintiff in and to the land upon which the property was located. Marx, president of defendant company, accepted the policy without reading or examining it, placed it in his safe and retained it, and claimed he never knew its contents. Upon the partition proceedings Nicholas Marx and John Marx each acquired title to one of these lots. They were brothers of Frank Marx, president of plaintiff company, who purchased John’s lot. He was unable to agree with Nicholas as to the rent, which was to be thereafter paid by plaintiff, for the ground on which one of the ice houses stood. Nicholas Marx ordered the ice house removed from his lot. Plaintiff agreed to do this by December 1, 1903. The fire which destroyed the ice houses occurred November 17, 1903. After the fire there was attached to the policy the following rider:
‘ ‘ It is hereby understood and agreed that the interest of the Wyandotte Brewing Co. covered in policy number 20,919 is assigned to Frank Marx * * * and is his property exclusively.”
The same statement was made in the proofs of the loss. The declaration in the case alleged relative to the foregoing assignment that this “indorsement attached to said policy of insurance was attached by defendant’s agent under a mistaken idea of the facts in the case, and said indorsement was not authorized by the plaintiff or its officers until after said fire had occurred. *
Defendant denied plaintiff’s right to recover, upon the following grounds:
1. Because the building insured was upon “ground not owned by the insured in fee simple,” and no written “ agreement ” thereof was indorsed on the policy as required by the terms thereof.
2. Because title to the ground on which the insured buildings stood changed after issuance of the policy and no written “agreement” of the change was indorsed on the policy, as required by the terms thereof.
3. Because the policy had been assigned before suit to Frank Marx; a bill in equity is necessary to correct the claimed mistake before liability of defendant to plaintiff becomes fixed.
4. No proofs of loss were furnished within the time required by the policy.
At the close of the case each party moved the court for an instructed verdict, which was denied. It appearing that the questions involved were questions of law, by stipulation the jury were excused, and the parties agreed that the case be submitted on briefs to the court to be determined by him, and a verdict entered, as if the jury were present. The court directed a verdict in favor of plaintiff, and judgment was entered for the amount of the policy and interest.
The principal error relied upon by defendant as a reason for reversing this judgment is that the court erred in not holding that the policy was void for the reason that the building insured was “ on ground not owned by the insured in fee simple, and no written agreement thereof was indorsed on the policy as required by its terms.”' The policy sued upon was the regular Michigan standard policy, and the clause relied upon by defendant reads:
“ This entire policy unless otherwise provided by agreement indorsed hereon, or added hereto, shall be void * * * if the subject of insurance be a building on ground not owned by the insured in fee simple. ”
. It is an admitted fact in this case that plaintiff never owned the ground upon which the buildings were located. The buildings, as the proofs show, were owned by plaintiff, and were located on leased ground. At the time the insurance was placed, nothing at all was said by either party as to the title to the ground. No questions were asked by defendant’s agent, and no representations made by plaintiff. There was no written application. As far-as the record shows, defendant or its agent had no knowledge of the condition of the title to the ground. The-court, in his decision, held that the case at bar was controlled by the cases of Hall v. Insurance Co., 93 Mich. 184 (18 L. R. A. 135), and Hoose v. Insurance Co., 84 Mich. 309 (11 L. R. A. 340). The contention of defendant is that the case is distinguishable from these cases; that the application was verbal; that the policy was issued by defendant and accepted by plaintiff without objection and that he is bound by the terms of his contract — citing Wierengo v. Insurance Co., 98 Mich. 621.
The cases above mentioned and other cases before this court have discussed this clause of the Michigan standard ■policy referred to. The question in the Wierengo Case appears to be the same question involved in this suit. The insurance in that case was secured upon a verbal application. No terms of the contract were mentioned except the amount. Upon the receipt of the policy neither the insured nor her agent read it, and did not read it until after the fire. The policy was the Michigan standard policy for $1,000 containing the same clause as to title to land and mortgages on personalty as in this case. It covered a stock of merchandise upon which, at the time, there was a chattel mortgage for over $1,200. Neither defendant nor its agent had any knowledge of this mortgage at the time the policy issued. Justice Grant, speaking for the court, said:
“In this case, where there was no written application nor any terms of the policy agreed upon by parol except the amount, the insured must be charged with knowledge that the policy he receives cohtains the contract, binding upon him as well as the insurer. He must knQW that the policy, which is the contract, contains the usual terms of such instruments. He may not lay it aside without reading, and when he seeks to recover upon it, and finds that, under its plain provisions, he cannot recover, say: ' I did not read it. The insurer did not tell me what it contained. I did not know that it was necessary to tell him about the title and condition of my property, and therefore I am not bound by its terms.’ Had Mr. Pearson or his principal read the contract — which he could have done in a few moments — they would at once have known these plain and important conditions, which the defendant had the clear right to insert, and to make a condition of .its valid ity. Certainly the insured must be held to some degree of diligence in obtaining knowledge of the contracts to which they are parties. Ignorance will not relieve a party from his contract obligations. The law only relieves him therefrom in cases of fraud, mistake, waiver, or estoppel. An insurer is not required by the law to inquire into the condition of the title to the property insured, or to inform the insured of all the conditions and terms of the policy to be issued, or to read it to him, or inform him of its contents. When received and accepted without objection, he must be bound by its terms unless these terms are waived by the insurer. This is the law of contracts, and there is no reason or authority for holding that an insurance contract is an exception thereto.”
We think this is decisive of the question before us, and unless the cases relied upon by the court, and other cases cited by counsel for plaintiff, overrule it, we consider the question as to the construction of the part of the contract under consideration settled in this State. The fact that in this case the question is as to the title to the ground upon which the insured buildings were situated, and in the case just cited was as to a chattel mortgage on personal property makes no difference. • Each requirement is of equal binding force as a part of the same stipulation in the contract. The only distinction being as to the class of property to which each applies. The following author-
ities are in accord with the opinion above quoted: Security Ins. Co. v. Mette, 27 Ill. App. 324; Phenix Ins. Co. v. Searles, 100 Ga. 97; Dumas v. Insurance Co., 12 App. Cas. (D. C.) 245 (40 L. R. A. 358).
A review of the cases claimed by plaintiff as contrary to or overruling the Wierengo Case, supra, will, we think, disclose that such is not the fact. In Hoose v. Insurance Co., supra, opinion by Champlin, C. J., defendant, among other reasons, denied plaintiff’s right to recover because she was not sole and unconditional owner of the property and did not own the ground, upon which the insured building stood, in fee simple, in violation of the conditions of ' the policy. The policy covered the building, stock of groceries, and so forth, and store furniture and fixtures contained in the building. The policy as to the real estate interest reads:
“ Insure Mrs. Margaret Hoose to the amount of * * * one thousand dollars on the tworstory frame building occupied as a grocery store and dwelling situated on the northwest corner of Milwaukee and Beaubien Sts., Detroit, Mich., * * * against all such immediate loss or damage sustained by the assured as may occur by fire to the property above specified, but not exceeding the interest of the assured in the property.”
At the time the insurance was written, she held under a land contract and there was a mortgage on the premises. The application was verbal, and it was claimed, and the jury found specially, that defendant’s agent had been told, and knew at the time the policy issued, the condition of the'title. This court held that such verbal statements became a part of the contract, and the finding of the jury was conclusive upon defendant that it had knowledge of the condition of the title. In construing the clause in the policy relative to the title to the ground on which the building stood, which is the same as in the policy in the suit at bar, the court says:
“ In construing this portion of the policy the whole must be taken together. Now the object sought to be accomplished“by the person applying for insurance was to obtain indemnity against loss by fire of her interest in the building. If the insurance company which made out this policy, upon the verbal application to its agent, had desired to know what interest it was insuring in should have stated it in that part of the policy pertaining to the risk.”
And further:
“Construing this portion of the policy with the testimony in the case, and with the fact that the company issued the policy to Mrs. Hoose without stating in the policy what her interest was, but insuring the building against loss by fire to an amount not exceeding the interest of the assured in the property, we think it must be held that the defendant understood the condition of the title and intended to insure whatever interest Mrs. Hoose had which was insurable, not exceeding the amount named in the' policy.”
The court also held that the requirements of the policy as to indorsements of changes of title referred only to such changes as arose after its delivery and acceptance.
In Hall v. Insurance Co. (opinion by McGrath, J.), supra, the suit was brought by an assignee of the policy. This assignment was made by the consent of the company and defendant’s agent was told that the insured had assigned his interest in the policy to plaintiff. The court held that the defendant, by consenting to the assignment, had made a contract with plaintiff, and was estopped from defending against the assignee on account of prior breaches unknown to either party; that the information it received at the time of the assignment was sufficient to put it upon inquiry. It also held that the assignor had an insurable interest. In this case the application was verbal. No statement as to the condition of the title was asked for or given. In its reference to the Hoose Case, the court was in error as to its statement that the facts were precisely the same. In the Hoose Case, as above already stated, defendant company was informed of the exact condition of title when the insurance was written. This case, however, was not determined and decided upon that question, as already appears.
In Guest v. Insurance Co., 66 Mich. 98, opinion by Campbell, C. J., the application was verbal, and the insured stated he held under a land contract. The policy read: “Lot held by virtue of a land contract.”
In Gristock v. Insurance Co., 87 Mich. 428, opinion by Grant, J., the application was not in writing and defendant’s agent was informed of a mortgage.'
In Miotke v. Insurance Co., 113 Mich. 166, opinion by Hooker, J., insured was a foreigner unable to write and speak English. He stated that he held the land on which the house was situated on contract. The contract was, in fact, to himself and wife jointly.
The most recent case before this court, bearing upon' the question under consideration, is Brunswick-Balke-Collender Co. v. Assurance Co., 142 Mich. 29, opinion hy Blair, J. Plaintiff was the owner of certain saloon furniture and fixtures, billiard and pool tables, of which it had made a conditional sale retaining title in the property, and also upon which it had taken a chattel mortgage to secure the title notes. The application was verbal and the record does not show that any specific representations were made as to title. The court said:
“ In the case at bar the plaintiff had an insurable interest. It had' the legal title and was the owner of the property insured subject to the rights of Rawson Bros, to acquire its title by performance of its contract of sale. The only actual description of their interest in the property contained in the policy was the language ‘ $1,100 on their saloon furniture and fixtures, etc.’ This was a true description, and defendant cannot complain because of its own negligence in failing to, require a more specific description.”
The cases cited in the opinion have already been discussed. The case decides that the description of the property in the policy was not untrue; that the owner of the legal title of personal property need not disclose the fact that he had agreed to sell such insured property upon ■conditions reserving title. This is supported by authority. A conditional sale in the law of fire insurance is not an .alienation. 3 Joyce on Insurance, § 2284, and cases cited. Earlier Michigan cases cited by plaintiff to the point that the insured need not disclose the state of title to the property insured are not in point, for the reason that the insurance contracts did not so require, or the facts showed waiver or estoppel. In the cases discussed, where the opinion'of this court has not been given, enough of the facts of each case has been stated to show some knowledge as to title, or waiver on the part of the insurer. This court has never in terms overruled the case of Wierengo v. Insurance Co., supra, and it is evident such has not been the intention. Some members of the court who con curred in that case have sat in all the cases herein above considered, except the Quest Case, and in no instance has the decision in that case been referred to or questioned, for the undoubted reason that these cases were distinguished by them.
In this case, at the time that the policy issued, plaintiff was not the owner of the land in fee simple. The burden of the proof to show knowledge in the defendant of this .fact was upon the plaintiff. This it failed to do. The defendant had no such knowledge, therefore the policy was void. The court should have directed a verdict for defendant. We find no other errors in the case.
Judgment is reversed, and a new trial ordered.
Grant, Ostrander, Hooker, and Moore, JJ., concurred. | [
-15,
7,
-16,
-17,
77,
26,
21,
-22,
-17,
-17,
-12,
4,
69,
-24,
45,
6,
-34,
-4,
18,
-11,
-1,
-22,
-80,
12,
-13,
-7,
14,
0,
24,
26,
-10,
41,
-58,
-4,
-34,
21,
-36,
-25,
-61,
-8,
24,
-31,
23,
5,
-7,
-6,
-13,
-15,
70,
-10,
31,
-3,
19,
19,
-19,
-25,
2,
23,
-22,
4,
-6,
-33,
29,
6,
24,
16,
15,
18,
-33,
16,
54,
16,
-3,
26,
-17,
22,
-32,
2,
2,
-13,
1,
4,
4,
-16,
-29,
36,
-34,
-31,
-16,
34,
-58,
-14,
-19,
22,
6,
17,
22,
67,
-37,
50,
45,
18,
-8,
27,
8,
8,
31,
6,
-42,
19,
14,
-17,
41,
-6,
37,
14,
29,
-22,
-21,
48,
28,
-26,
-4,
-39,
-44,
35,
0,
30,
-3,
-17,
21,
54,
-7,
2,
57,
-33,
9,
-7,
33,
24,
7,
-21,
-43,
-5,
-10,
36,
-18,
-60,
-18,
-42,
-24,
11,
24,
-25,
-40,
9,
39,
-33,
-2,
-73,
16,
-46,
-3,
23,
-47,
-8,
2,
-7,
-15,
-13,
4,
-83,
-5,
-21,
-14,
-3,
10,
-12,
-44,
-9,
16,
-26,
42,
8,
13,
-33,
-5,
-15,
-7,
12,
80,
-64,
-29,
42,
-15,
6,
50,
61,
30,
-18,
68,
0,
-34,
-46,
38,
-4,
5,
33,
-7,
-20,
-12,
13,
-45,
-70,
28,
8,
18,
-14,
-7,
-70,
-5,
2,
-24,
18,
-14,
-61,
-17,
11,
51,
-26,
-15,
15,
48,
32,
-2,
2,
8,
0,
15,
9,
26,
34,
-33,
-16,
42,
2,
-12,
18,
-32,
18,
12,
-71,
12,
-14,
-19,
-27,
-13,
28,
-29,
16,
-29,
18,
-39,
27,
56,
10,
-6,
0,
-8,
21,
28,
-7,
30,
-19,
-54,
-47,
-47,
33,
-21,
17,
20,
0,
-46,
1,
-6,
22,
36,
8,
-48,
-5,
-5,
0,
26,
-25,
12,
-13,
-17,
-30,
-5,
24,
-46,
26,
29,
-12,
-26,
-37,
-53,
-23,
36,
1,
-29,
34,
-33,
-34,
58,
-33,
-8,
59,
-31,
-33,
46,
20,
-10,
-30,
-17,
-34,
48,
3,
17,
36,
-27,
-41,
1,
36,
-59,
8,
21,
13,
27,
-24,
34,
18,
58,
-38,
-33,
37,
13,
-14,
12,
-37,
-21,
-34,
24,
9,
-39,
39,
11,
29,
-22,
23,
27,
54,
-6,
39,
-6,
2,
-54,
-1,
-26,
17,
10,
15,
-22,
-1,
16,
6,
-60,
46,
-60,
30,
43,
-80,
6,
25,
73,
-3,
-31,
-50,
-43,
-30,
-77,
-15,
-14,
26,
3,
1,
-1,
-55,
-19,
-10,
95,
32,
-5,
-12,
-30,
-53,
-14,
-18,
-8,
6,
-11,
-1,
0,
-56,
-19,
25,
8,
3,
0,
30,
-1,
-17,
28,
-27,
8,
-76,
58,
44,
-26,
-21,
-22,
-12,
-10,
-4,
15,
9,
-89,
-18,
-11,
20,
7,
19,
-17,
-7,
6,
-25,
-60,
6,
7,
-32,
-9,
59,
-7,
8,
-47,
49,
0,
-47,
28,
-30,
-1,
-18,
18,
8,
-36,
-15,
-10,
-1,
11,
-3,
0,
-4,
-62,
-38,
-37,
-2,
-6,
-33,
-40,
40,
-24,
34,
72,
-20,
-42,
-49,
7,
8,
12,
-6,
38,
22,
58,
-32,
-17,
-1,
-28,
28,
7,
-34,
-17,
-6,
-23,
9,
4,
15,
0,
-26,
33,
63,
34,
-64,
21,
20,
36,
59,
-26,
-9,
47,
-15,
6,
-47,
-36,
5,
-8,
-19,
13,
0,
26,
-6,
31,
-54,
21,
-3,
-48,
51,
63,
45,
2,
17,
4,
4,
14,
2,
-33,
-32,
-6,
15,
-9,
6,
16,
-35,
12,
25,
-1,
45,
32,
-25,
10,
15,
-11,
8,
20,
-28,
-9,
-42,
3,
6,
24,
-23,
-64,
-2,
57,
-25,
-37,
6,
-11,
-31,
-42,
60,
-42,
-19,
3,
-20,
4,
38,
2,
18,
-13,
26,
17,
32,
-63,
8,
35,
-2,
9,
35,
9,
-6,
24,
-62,
-51,
-46,
-3,
0,
-12,
-6,
-12,
17,
-4,
-6,
-25,
-4,
9,
30,
16,
21,
49,
14,
39,
5,
11,
7,
-32,
10,
4,
-7,
-35,
81,
14,
-37,
-27,
-18,
61,
-54,
12,
48,
21,
1,
-52,
-14,
-7,
30,
-28,
10,
-15,
-33,
-10,
-22,
-11,
5,
14,
25,
-55,
-36,
-20,
-1,
33,
-16,
-40,
-17,
-33,
33,
-43,
-16,
90,
-45,
25,
11,
71,
11,
15,
22,
-44,
-35,
-17,
42,
25,
65,
17,
-38,
5,
57,
44,
-6,
-22,
18,
14,
-18,
31,
-15,
-7,
-13,
-3,
50,
18,
-5,
40,
-56,
-15,
2,
55,
-42,
-41,
18,
10,
-70,
7,
12,
32,
27,
29,
-11,
13,
67,
7,
15,
5,
-21,
9,
-51,
47,
0,
-11,
17,
-28,
-14,
-28,
-22,
1,
-25,
3,
5,
32,
32,
31,
16,
-21,
-12,
18,
-3,
40,
32,
-45,
-23,
1,
20,
20,
10,
-58,
9,
-12,
41,
7,
-3,
-29,
36,
-23,
-10,
1,
-13,
-10,
-17,
-17,
0,
40,
-7,
10,
-59,
-4,
-5,
-7,
-32,
-2,
27,
39,
-20,
-29,
-11,
5,
3,
7,
-42,
-55,
-21,
34,
-21,
39,
3,
-22,
15,
-20,
-31,
-82,
2,
0,
-23,
-21,
-12,
-55,
-27,
-6,
-18,
3,
-4,
-7,
34,
15,
4,
-17,
2,
-3,
-7,
-17,
68,
-48,
41,
-32,
14,
-20,
49,
10,
31,
22,
-7,
11,
15,
7,
-49,
22,
-40,
-18,
36,
16,
24,
7,
-15,
-34,
-37,
28,
-23,
-11,
68,
0,
-20,
-25,
20,
-16,
-10,
-28,
-10,
-1,
71,
-8,
-29,
7,
5,
36,
7,
35,
-23,
-9,
3,
37,
4,
-23,
-29,
-18,
40,
3,
15,
-30,
-28,
-17,
61,
-22,
-84,
37,
-26,
40,
6,
11,
-23,
-42,
-3,
31,
-9,
-17,
71,
54,
16,
3,
36,
-58,
-8,
-21,
24,
58,
-37,
-29,
-32,
9,
19,
-2,
1,
36,
-8,
28,
3,
12,
-63,
36,
-39,
-33,
47,
-10,
50,
-33,
49,
-5,
21,
-29,
-69,
-65,
15,
33,
66,
10,
43,
1,
-2,
25,
76,
45,
-27,
30,
-25,
-16,
-13,
5,
-31,
41,
-10,
-23,
13,
63,
-72,
16,
80,
-11,
-56,
6,
43,
-44,
-2,
-2,
8,
-52,
-7,
12,
17,
-20,
-6,
11,
-11,
46,
3,
-2,
-33,
-1,
36,
50,
-19,
-32,
-3,
8,
0,
0,
-18,
31,
-13,
-61,
29,
-5,
0,
15,
-18,
-33,
-12,
28,
24,
-22,
12,
12,
23,
27,
46,
-44,
10,
44,
33,
18,
11,
9,
15,
10,
10,
33,
14,
-29,
-11,
25,
8,
-4,
14,
-45,
16,
6,
-58,
22,
-15,
-3,
34
] |
Carpenter, C. J.
Relator, a stockholder in the Detroit & Kent County Oil & Gas Company, Limited — a corporation organized under the laws of the Territory of. Arizona — filed a bill of complaint against said corporation in the circuit court for the county of Wayne, in chancery, praying, among other things, that said corporation, ‘ ‘ its officers, agents, trustees, attorneys, and counselors, may be both temporarily and permanently enjoined and restrained from selling, transferring, or otherwise disposing-of the options, leases, lands, properties, and utilities owned or controlled by the said company.” A temporary injunction in accordance with this prayer was issued. The defendant corporation, after a general appearance in the case, filed a plea to the jurisdiction of the court, and relator filed a replication to this plea. Upon this issue testimony was taken before respondent who found the material facts in the plea to be true and entered a final decree dismissing relator’s bill of complaint. Relator thereupon instituted these proceedings asking for a mandamus to compel said respondent to set aside said decree. We are of the opinion that relator has mistaken his remedy. It is clear that relator can review the order complained of by appealing therefrom to this court. Under these circumstances, according to our recent decisions, that is his only method of obtaining relief (see Cattermole v. Ionia Circuit Judge, 136 Mich. 274, and cases there cited), and he is not, therefore, entitled to a writ of mandamus.
It is argued in his brief that relator is entitled to a writ of mandamus under the rule laid down in Michigan Mut. Fire-Ins. Co. v. Wayne Circuit Judge, 112 Mich. 270:
‘ The writ will be entertained when the court has refused to retain jurisdiction, supposing it had no jurisdiction when it had jurisdiction in fact, because, if the writ was not entertained under such circumstances, the party would be without remedy.”
It is quite apparent from this entire language that we were attempting to describe cases in which the trial court refused to make a final order which might be reviewed by appeal or writ of error. If such an order is made, even though made upon the erroneous notion that the trial court has not jurisdiction, mandamus will not lie. See Cattermole v. Ionia Circuit Judge, supra.
Relator urges that if the mandamus sought be not granted, the defendant corporation will, before this case can be heard upon an appeal, improperly dispose of all its assets and leave him without remedy. If relator has just ground for this apprehension, we can perceive no good reason why he may not at once appeal, and procure from this court an injunction which will preserve the corporate assets until the appeal is determined. See Kent v. Mahaffy, 2 Ohio St. 498.
The application for the writ of mandamus is denied.
McAlvay, Grant, Blair, Montgomery, Ostrander, Hooker, and Moore, JJ., concurred. | [
20,
-7,
27,
17,
4,
10,
34,
0,
-24,
45,
53,
-33,
-13,
29,
18,
-62,
65,
40,
4,
-1,
-23,
-11,
-18,
37,
-5,
-21,
3,
-26,
29,
-17,
-46,
-27,
-19,
14,
0,
2,
-9,
2,
12,
24,
-4,
11,
44,
1,
-14,
-26,
7,
-12,
17,
-26,
45,
42,
-32,
34,
-38,
-25,
-5,
2,
28,
-28,
-10,
4,
-25,
22,
4,
19,
-18,
18,
19,
6,
-19,
-4,
41,
2,
0,
-15,
-9,
-45,
61,
25,
-7,
6,
6,
-26,
-17,
36,
-15,
23,
-12,
-48,
-28,
-17,
-82,
9,
18,
20,
11,
7,
-9,
15,
12,
22,
-34,
12,
-25,
-1,
-1,
-44,
29,
1,
9,
54,
-8,
-23,
-17,
-14,
-55,
-35,
22,
-41,
-24,
-55,
11,
18,
14,
2,
1,
-17,
-6,
22,
-9,
-13,
16,
-7,
10,
-6,
35,
29,
-10,
23,
16,
-1,
43,
-2,
-5,
30,
56,
-6,
-33,
29,
62,
31,
15,
58,
-3,
-16,
7,
-6,
34,
-6,
50,
7,
-32,
23,
-30,
0,
1,
-11,
-66,
3,
8,
9,
-30,
0,
-24,
-26,
-41,
-13,
-60,
-23,
-1,
26,
-29,
-32,
41,
0,
54,
-6,
1,
-22,
28,
0,
-9,
46,
16,
11,
-42,
53,
-7,
18,
-27,
0,
-35,
20,
-22,
-54,
11,
0,
-2,
1,
-21,
19,
-28,
-52,
-23,
-43,
5,
-30,
3,
12,
21,
0,
35,
35,
-26,
-28,
25,
28,
-15,
14,
43,
-59,
-12,
0,
-32,
-12,
68,
2,
38,
-28,
-22,
48,
19,
-12,
47,
-1,
-14,
15,
-32,
-10,
-41,
-26,
17,
-9,
-45,
-48,
-45,
17,
-45,
-21,
25,
0,
-72,
-14,
2,
-46,
7,
-15,
3,
-20,
-5,
4,
26,
-12,
-10,
-9,
2,
0,
37,
-8,
-13,
-6,
-36,
0,
-36,
75,
5,
16,
-35,
-13,
0,
-13,
13,
23,
2,
25,
15,
-65,
31,
1,
-16,
9,
-15,
27,
-2,
23,
-22,
14,
-34,
0,
31,
-27,
-1,
23,
-13,
-18,
11,
33,
8,
-58,
57,
70,
1,
-3,
-19,
10,
56,
-14,
18,
-1,
-1,
-28,
-33,
17,
-38,
22,
7,
10,
-38,
21,
9,
-24,
-9,
14,
6,
29,
23,
-36,
-6,
-9,
-26,
-5,
-5,
26,
17,
-56,
-4,
-42,
-37,
18,
16,
-26,
-65,
-26,
43,
14,
-20,
12,
17,
37,
25,
1,
13,
-9,
9,
-40,
-53,
0,
-37,
21,
-8,
-48,
48,
-31,
42,
-38,
-45,
1,
-29,
-28,
-49,
34,
16,
10,
-21,
-22,
20,
0,
13,
53,
30,
9,
14,
23,
-13,
-9,
7,
36,
-49,
12,
26,
5,
4,
8,
-24,
23,
-2,
33,
51,
-19,
29,
-25,
4,
-66,
26,
-13,
-4,
-14,
-14,
-1,
-14,
4,
33,
32,
-18,
22,
-31,
-30,
-32,
8,
-21,
-12,
-31,
-45,
20,
-49,
-15,
9,
51,
6,
21,
44,
-20,
-13,
-43,
41,
-7,
-8,
28,
-33,
31,
-23,
-4,
15,
16,
-49,
43,
28,
26,
9,
-22,
-11,
-12,
46,
-34,
-18,
-27,
-4,
0,
-5,
-30,
15,
-28,
-10,
12,
15,
13,
-18,
-12,
33,
-26,
7,
31,
-7,
-17,
-14,
-15,
23,
6,
28,
30,
0,
7,
-4,
62,
23,
-4,
-10,
-8,
23,
-29,
-17,
46,
19,
5,
40,
13,
40,
42,
7,
3,
-39,
-29,
-15,
-54,
3,
-29,
17,
36,
6,
20,
-58,
5,
10,
-21,
50,
-21,
6,
24,
-32,
-28,
39,
-8,
8,
14,
15,
-30,
21,
-7,
1,
-29,
-22,
-5,
-9,
36,
29,
14,
-14,
3,
20,
20,
14,
29,
-27,
14,
1,
-29,
-47,
10,
24,
2,
37,
40,
25,
5,
-21,
-23,
-1,
-16,
-20,
-26,
-2,
32,
-51,
-17,
-23,
-18,
-45,
25,
-46,
-31,
26,
4,
-45,
2,
32,
29,
0,
25,
28,
-14,
21,
-17,
-16,
11,
28,
26,
31,
17,
0,
-17,
25,
-51,
2,
-2,
57,
1,
-8,
15,
46,
2,
-22,
-7,
22,
-5,
-32,
39,
-32,
-13,
11,
-49,
-9,
-1,
-14,
16,
-11,
-27,
18,
-58,
-2,
-17,
-12,
6,
-25,
34,
-12,
17,
49,
0,
15,
0,
19,
36,
32,
-13,
-30,
6,
-5,
29,
-5,
12,
-36,
-15,
-14,
3,
-27,
0,
14,
44,
-3,
0,
-25,
10,
-12,
8,
-33,
-27,
-28,
9,
61,
-23,
23,
-18,
-43,
60,
-4,
29,
11,
-7,
15,
-26,
-10,
2,
25,
-17,
3,
9,
23,
-1,
-32,
-27,
22,
44,
34,
-9,
0,
2,
-10,
40,
-35,
33,
-48,
12,
4,
-1,
24,
46,
-65,
-47,
-18,
-1,
-17,
-31,
-15,
53,
17,
-14,
-15,
-15,
-9,
35,
3,
42,
-33,
8,
21,
13,
-66,
-32,
21,
0,
-5,
0,
-36,
-22,
8,
39,
20,
8,
-25,
30,
-2,
10,
30,
0,
7,
-37,
-44,
-20,
11,
39,
-24,
15,
-5,
-5,
-19,
-53,
-48,
9,
-19,
23,
-16,
-2,
-14,
13,
32,
23,
44,
-6,
-31,
7,
-13,
-9,
12,
-23,
-76,
21,
-17,
-12,
-3,
32,
-32,
20,
-76,
0,
-12,
15,
11,
-15,
5,
8,
11,
32,
32,
24,
4,
-14,
-18,
25,
13,
-16,
-3,
-7,
6,
44,
-7,
-32,
5,
-38,
-30,
-13,
-26,
3,
-40,
-18,
0,
8,
30,
-15,
90,
40,
-48,
-35,
72,
-2,
-22,
40,
-11,
30,
-57,
37,
-43,
-39,
7,
-20,
-11,
-52,
-3,
-66,
39,
2,
17,
-52,
5,
-9,
-47,
24,
29,
-43,
39,
26,
66,
-5,
-43,
6,
-43,
-36,
22,
4,
-6,
25,
-13,
-14,
23,
15,
0,
24,
-31,
-28,
0,
-10,
47,
27,
-1,
-30,
14,
32,
-1,
-38,
33,
30,
0,
-54,
18,
29,
-5,
-14,
-61,
-67,
-28,
-52,
11,
0,
26,
26,
17,
-9,
-26,
-19,
38,
22,
25,
-17,
37,
-26,
21,
8,
4,
-20,
18,
3,
56,
-19,
-8,
-53,
6,
14,
49,
49,
32,
29,
-25,
-23,
-13,
6,
-54,
4,
-5,
0,
-20,
-12,
-6,
-2,
18,
7,
0,
-7,
-7,
-50,
26,
-76,
-11,
27,
18,
-36,
-11,
-7,
7,
-23,
-34,
-63,
32,
-14,
44,
-24,
20,
-56,
-3,
-10,
-34,
36,
-3,
-14,
9,
-11,
39,
-6,
-17,
8,
32,
3,
-1,
6,
15,
25,
-6,
0,
-11,
-18,
-47,
61,
53,
32,
-9,
26,
40,
-11,
7,
0,
-17,
-16,
-26,
0,
-7,
29,
2,
7,
4,
40,
8,
0,
-4,
49,
19,
-4,
26,
0,
6,
13,
41,
8,
-8,
-9,
-3
] |
McAlvay, J.
The question in this case arose in the probate court of Wayne county, in the matter of the estate of Charles F. Jaeserich, deceased. Plaintiff Hering is the executor named in the last will and testament of the deceased, who died in the city of Detroit. Defendant Mosher is the guardian of Carl S. Jaeserich, of the age of seven years (son and only child of the deceased), duly appointed by the probate court of Hillsdale county, April 7, 1903. He is also the maternal grandfather of said minor child. After the appointment of Mosher as such guardian, Hering appealed to the circuit court of Hills-dale county, where, after a trial, judgment was entered confirming the appointment. From this judgment no appeal had been taken.
On April 7, 1903, being the same date Mosher was appointed guardian of the minor child by the said probate court," Hering filed a sworn petition for probate of a will in the probate court of Wayne county, in the matter of the estate of Charles F. Jaeserich, deceased, alleging, among other things, that said deceased had died April 2, 1903, naming petitioner, executor; that deceased was a resident of Detroit and left an estate in Wayne county of the value of $500 and upwards; leaving as his heir Carl S. Jaeserich, a son aged seven, residing at Hillsdale, Mich. Upon the hearing, June 5, 1903, the probate court found that deceased at the time of his death was not a resident of Wayne county, but was a resident of Hillsdale county, ordered the proceedings dismissed, and the will- transferred to the judge of probate of Hillsdale county. From this order Hering appealed to the circuit court of Wayne county, where, upon trial, a jury found that Jaeserich, at the time of his death, was a resident of Wayne county, and judgment was entered reversing the order of the probate court.
The contention of the appellant is that the judgment of the circuit court of Hillsdale county is res adjudicata of the question of the domicile of Charles F. Jaeserich, that question being necessarily involved and determined in that suit, and that the trial judge erred in not so holding and instructing a yerdict for appellant.
In order to understand the situation it will be necessary to state the facts, briefly, relative to the child and his care and custody. The mother of this child died in May, 1898, when he was about two years old. He was then placed by his father in the care and custody of his grandparents, Mosher and wife, in Hillsdale, to be cared for and reared by them. All of these parties had their domicile at that place for several years. It was the domicile of the child’s origin and continued to be the domicile of the father, at least until he, failing in health, went to Detroit a few months before his death, in April, 1903, the child remaining with the grandparents in whose custody he was at the time of the father’s death.
Both parties to this controversy insist that the determination of the circuit court of Hillsdale county in confirming the appointment of the grandfather Mosher as the child’s guardian was a proper one. The appellant, because that was the domicile of the father at the time of his death, and the appellee, for the reason that the grandparent, having lawful custody of the child at the time of its father’s death, had the power to fix and change the domicile of the infant after such death although at the time of his death the father’s domicile was in Wayne county. There is no question of any property rights of the infant involved in this case.
We accept the doctrine, as a general proposition, that the domicile of a child is that of its origin, or of its last surviving parent. There may be circumstances, however, where it would not remain so, if rights are exercised by other parties for the benefit of the child. A grandparent may lawfully have the care 'and custody of a grandchild whose parents are deceased. We know of no rule of law which would prevent such an bne from fixing and changing the child’s domicile to his own, no question of property rights being involved. In Re Benton, 92 Iowa, 202, the court says:
“Guardians by nature have the right to change the domicile of their wards if done in good faith. And while the next of kin may not change it, so as to affect the rights of succession or of property, yet if the change is made in good faith a new domicile may be acquired, which will give a probate court jurisdiction to appoint a guardian at law for them. In this case the grandfather is living with, and is a member of, the petitioner’s family, and he signed the petition for the appointment of David M. Benton as guardian in the Wisconsin county court. The children, or one of them, were taken by David Benton to Wisconsin at the request of the grandfather; and the paternal grandfather, petitioner, and the children all live together in one family. These facts distinguish the present case from Jenkins v. Clark, 71 Iowa, 552, and In re Johnson, 87 Iowa, 130, and sustain the jurisdiction of the Wisconsin court.”
This was a case of a change of domicile to.another State. See, also, Lamar v. Micou, 114 U. S. 218.
Courts do not look with disfavor upon a change of municipal domicile.
“A change of national or quasi national domicil involves, as we have seen, consequences of a very serious character. But with municipal domicil, it is different. The question of a change of the latter is generally raised for the purpose of determining the place of the exercise of rights, and the performance of duties which may or must be exercised somewhere within the State. * * * As might be expected, therefore, the courts lean strongly in favor of allowing the freest change of municipal domicil, and frequently hold such changes to have been accomplished upon very slight circumstances.” Jacobs on Domicil, § 180.
In the case at bar the grandfather had the custody of this child for years with the father’s express consent and desire, in the domicile of the child’s origin. The father went to Wayne county, and died in three months. If he gained a domicile there, conceding the general rule to apply, it became in law the domicile of this child. The grandfather lawfully continuing such custody changed such.-legal domicile of the child to his own domicile in Hillsdale county, made application in that jurisdiction, and was appointed guardian. We think he had a right to do so. In determining whether the question of the last place of residence of • Jaeserich, deceased, was necessarily involved in the determination of the case before the Hills-dale circuit court, we may further consider the acts and conduct of the deceased father, which involves the question whether a parent may not fix the domicile of his infant child at a place different from his own domicile. In this case the circuit judge of Hillsdale county found that before the mother died it was agreed between the parents that the child should be placed with the grandparents to be cared for and reared; that the father fulfilled this agreement; that the child remained there during all the years since that time; that Jaeserich, failing iñ health, being afflicted with consumption, went to Detroit for treatment and died shortly after. Whether Jaeserich changed his domicile or not is a question of fact not proper for us to determine. He left the child where it had been placed by him to be reared, with its nearest of kin, and those alone except himself who had any affection for or attachment to it, thereby clearly indicating that he fixed its domicile with them. A parent may give his child domicile different from his own by consenting to its adoption; that he may do so by less formal proceedings we consider equally permissible. Upon either view of the case the question of the domicile of the father at the time of his death was not a necessary and determining one involved in the case before the Hillsdale circuit court. That judgment was, therefore, not res adjudicata of that fact. It will not be necessary, therefore, to consider the capacities in which Hering appeared in these suits.
The judgment and determination of the Hillsdale circuit court is res adjudicata as to the appointment of Mosher as guardian of the minor child, Carl S. Jaeserich, that court having obtained jurisdiction of the subject-matter and the parties to that suit. That a fact not material and decisive of the issue was found by the court does not militate against the validity of that judgment. The Wayne circuit judge did not err in holding that the record, proceedings, and judgment of the circuit court for Hillsdale were not res adj udicata of the question of the domicile of Charles F. Jaeserich at the time of his death, and properly left such question as one of fact in this case to be determined by the jury.
The judgment is affirmed.
Grant, Blair, Hooker, and Moore, JJ., concurred. | [
-21,
-28,
-3,
-31,
1,
6,
14,
3,
-33,
-30,
-45,
-62,
16,
77,
-42,
-46,
-5,
26,
-17,
-14,
18,
6,
-25,
25,
-37,
10,
-16,
1,
-16,
-49,
-40,
-31,
-3,
-4,
16,
-17,
7,
-27,
60,
-1,
1,
-16,
54,
-8,
-33,
21,
24,
-1,
-2,
-15,
-18,
-5,
7,
-1,
25,
-17,
57,
2,
-52,
-8,
-3,
-19,
0,
25,
17,
18,
18,
7,
-1,
13,
5,
-15,
-6,
28,
-16,
-8,
-22,
-40,
37,
-3,
-6,
-5,
-1,
-31,
-50,
-31,
-18,
-5,
-34,
67,
0,
43,
-21,
42,
6,
53,
-7,
12,
9,
25,
0,
-11,
28,
52,
-16,
-2,
-18,
-9,
-21,
23,
58,
4,
57,
27,
-3,
39,
-11,
28,
-1,
26,
-21,
-42,
32,
-33,
-8,
13,
13,
20,
39,
40,
36,
36,
20,
-25,
-29,
57,
-3,
-19,
22,
14,
25,
-37,
21,
-3,
-8,
3,
25,
-21,
-20,
-102,
-33,
-5,
8,
-4,
2,
-6,
27,
-31,
30,
8,
-2,
-22,
17,
-45,
-54,
-8,
-3,
0,
-33,
-1,
2,
37,
36,
-35,
-22,
-2,
-23,
39,
-25,
19,
-12,
0,
7,
-66,
0,
-17,
49,
0,
-43,
8,
-4,
-51,
13,
18,
-25,
74,
12,
-14,
-16,
3,
-6,
-13,
27,
-12,
7,
-18,
5,
-34,
-48,
-76,
-3,
-15,
-18,
-6,
2,
0,
-9,
-18,
3,
26,
45,
-26,
15,
8,
-18,
-27,
-11,
-45,
43,
-55,
23,
-38,
26,
70,
0,
-9,
0,
7,
-22,
-29,
15,
-8,
13,
18,
-17,
19,
25,
51,
-35,
14,
13,
-58,
19,
14,
-2,
-11,
-27,
31,
8,
3,
-27,
86,
-43,
-14,
-16,
26,
14,
-41,
-5,
-16,
-30,
-15,
40,
-3,
-4,
-21,
-7,
13,
13,
-5,
13,
-6,
-27,
-11,
6,
61,
-32,
-11,
12,
46,
-44,
-26,
22,
-1,
30,
-41,
22,
-94,
13,
-29,
-18,
45,
13,
2,
-7,
-51,
-7,
3,
13,
16,
17,
-3,
-16,
-18,
28,
-12,
-48,
-29,
77,
7,
14,
-35,
-54,
-28,
-23,
-20,
15,
0,
-39,
31,
0,
0,
23,
-12,
-46,
-12,
7,
37,
-17,
-9,
31,
2,
0,
34,
22,
-13,
44,
-10,
30,
-24,
2,
4,
49,
3,
-15,
7,
27,
-30,
-2,
0,
19,
18,
-17,
31,
-47,
-50,
-5,
-6,
34,
1,
26,
15,
-42,
34,
8,
21,
-3,
-12,
-5,
56,
4,
-6,
-26,
17,
48,
-20,
-2,
35,
-20,
27,
-37,
13,
14,
-5,
-14,
-30,
-3,
12,
-30,
-34,
21,
38,
26,
37,
0,
21,
-49,
19,
12,
26,
-51,
6,
-13,
0,
99,
10,
-18,
-17,
-28,
17,
26,
42,
-4,
-33,
10,
-36,
0,
4,
11,
-19,
20,
34,
24,
22,
44,
-39,
-34,
21,
1,
47,
-21,
-24,
57,
22,
-12,
5,
-14,
27,
13,
-46,
37,
20,
-25,
27,
6,
2,
-7,
-19,
-35,
-10,
15,
-56,
-15,
-35,
-64,
17,
28,
31,
35,
-3,
-16,
2,
-33,
-24,
9,
8,
19,
-6,
-4,
1,
14,
9,
0,
-43,
-27,
21,
17,
-32,
-44,
21,
-32,
-20,
9,
-12,
24,
-19,
-24,
41,
-3,
-21,
27,
15,
15,
68,
-21,
-28,
-3,
-24,
-22,
16,
33,
-41,
-34,
62,
-41,
40,
5,
39,
52,
6,
45,
-36,
-22,
24,
12,
48,
38,
21,
-10,
-7,
11,
-14,
-16,
14,
-5,
-24,
-5,
35,
38,
5,
-17,
-17,
6,
-45,
-34,
11,
-8,
-33,
-2,
-12,
-7,
-61,
-37,
-7,
17,
-18,
3,
-51,
12,
-32,
-2,
-33,
-14,
-16,
78,
-50,
-5,
-23,
7,
9,
3,
20,
30,
-9,
43,
-17,
35,
19,
-42,
-25,
5,
22,
0,
-37,
9,
55,
7,
-16,
31,
51,
-34,
-20,
-6,
-12,
-26,
-36,
-10,
2,
88,
-63,
22,
-2,
10,
6,
-32,
-9,
-21,
13,
26,
-38,
5,
-12,
-61,
-14,
-18,
25,
-8,
-27,
21,
24,
-9,
26,
31,
-10,
-7,
8,
-25,
-19,
-31,
10,
-14,
-20,
-55,
-1,
15,
35,
40,
-11,
-27,
-31,
-15,
18,
-11,
-16,
23,
-30,
7,
-42,
23,
12,
0,
33,
-53,
32,
-60,
3,
37,
-46,
21,
15,
39,
-8,
-53,
-13,
2,
33,
0,
33,
29,
-37,
19,
7,
26,
-75,
-36,
12,
-12,
27,
92,
45,
-58,
4,
-14,
5,
28,
-38,
-15,
41,
-7,
-13,
-12,
-52,
24,
0,
-48,
9,
-8,
37,
-10,
-17,
-16,
40,
-23,
1,
-56,
12,
-1,
-34,
-29,
-85,
-63,
30,
13,
-9,
-44,
50,
82,
-35,
-2,
45,
5,
-51,
-22,
-32,
24,
0,
-36,
-17,
-12,
-26,
48,
-3,
26,
15,
59,
-25,
1,
-23,
-64,
-10,
19,
-13,
-71,
-8,
-8,
-21,
42,
36,
-22,
33,
-3,
8,
5,
28,
22,
-18,
29,
20,
-9,
19,
-21,
6,
46,
-33,
22,
27,
-15,
-7,
-9,
5,
19,
36,
-3,
-24,
-22,
-9,
-39,
-17,
-1,
-39,
-18,
29,
49,
-14,
-24,
14,
1,
-4,
18,
23,
-10,
0,
5,
17,
-12,
-13,
55,
38,
76,
-9,
24,
34,
28,
33,
18,
-15,
-41,
-3,
27,
44,
34,
10,
21,
-12,
-6,
7,
-7,
7,
-53,
-2,
11,
-7,
15,
-3,
-52,
-16,
5,
35,
-28,
42,
18,
-56,
-33,
0,
-13,
-28,
-10,
70,
-37,
-51,
34,
0,
-29,
32,
-23,
26,
21,
-7,
15,
9,
6,
-7,
-15,
22,
-20,
-1,
-35,
-19,
-3,
22,
14,
5,
13,
-61,
23,
3,
0,
-26,
8,
9,
16,
0,
-41,
-46,
-20,
-40,
-9,
18,
12,
-27,
27,
28,
21,
-18,
-20,
-9,
91,
4,
10,
10,
10,
-12,
-29,
39,
-61,
22,
-17,
0,
33,
-18,
-9,
-14,
15,
-19,
-29,
-4,
13,
82,
11,
23,
-32,
-16,
3,
1,
6,
-8,
-1,
11,
27,
-37,
-13,
10,
7,
-23,
-35,
-45,
39,
13,
-36,
23,
1,
0,
-17,
-15,
28,
5,
52,
22,
-2,
-24,
13,
-21,
-2,
11,
3,
52,
48,
-24,
-58,
62,
17,
-40,
-19,
4,
-64,
34,
-18,
-42,
-16,
12,
21,
-19,
34,
29,
31,
-41,
-17,
-60,
36,
6,
-30,
29,
19,
-27,
-14,
-20,
18,
9,
35,
-25,
26,
-46,
-53,
37,
0,
17,
31,
-26,
-62,
-9,
17,
18,
12,
-27,
-4,
7,
10,
3,
7,
37,
32,
11,
9,
22,
37,
0,
-13,
2,
-35,
20,
24,
6,
3,
0,
5,
-35,
12,
8,
8,
19,
20,
-62,
-14,
0
] |
Moore, J.
This action is ejectment. The lands in question were formerly owned by Silas W. and Fred B. Tyler, from whom both parties claim to derive title; the plaintiff, under their deed to him, made May 27, 1897, and recorded two days later; the defendants, through a sheriff’s sale made May. 31, 1902, under an execution against the Tylers in favor of Daniel H. Slater, which was issued and levied May 7, 1897. All of the defendants xelv upon this deed to Mr. Slater, and the chief question Fere is whether or not he apqúired any title under it, as against the plaintiff, who bought 20 days after the levy was made and 5 years and 4 days before the execution sale. The circuit judge held Mr. Slater acquired no title, and directed a verdict in^favor of plaintiff. The case is brought here by writ of error.
Section 9233, 3 Comp. Laws, reads:
“ That each and every levy by execution on real estate heretofore made shall cease to be a lien on such real estate at the expiration of five years from the time when this act shall become a law, unless such real estate be sooner sold thereon; and all liens by execution on real estate hereafter to be made shall become and be void at and after the expiration of five years from the making of such levy, unless such real estate be sooner sold thereon.”'
Counsel for defendants say that the judgment and the execution remained, and that therefore the sale should be upheld, citing Ward v. Citizens’ Bank, 46 Mich. 332, and Ludeman v. Hirth, 96 Mich. 19. An examination of these cases will disclose that the execution sales therein were made before section 9233, 3 Comp. Laws, as it now reads was enacted. The language of the statute is not ambiguous, and we think it should be given effect. Stearns v. Perrin, 130 Mich. 456; Peters v. Trust Co., 131 Mich. 322. If the lien, established by making the levy before the deed to plaintiff, became void because of a failure to make a sale thereunder, it is difficult to see how plaintiff’s deed could be defeated by a sale under the execution levy made after the lien created by the levy had by virtue of the statute become void.
Error is assigned because the court said to counsel that he did not think it competent in this action to call witnesses to show that the deed was fraudulent as to creditors. Without discussing whether the record is in shape to properly present the question, it may be said that the title of the plaintiff was upon the record perfect, and it could not be attacked, for the reasons stated, in an ejectment suit. See Moran v. Moran, 106 Mich., at page 10; Daniel v. Palmer, 124 Mich. 335; Spring v. Raymond, 134 Mich. 84.
Judgment is affirmed.
McAlvay, Grant, Montgomery, and Hooker, JJ.. concurred. | [
-16,
81,
25,
-8,
0,
26,
48,
35,
29,
24,
-17,
24,
16,
40,
27,
8,
38,
34,
-30,
54,
14,
-27,
-38,
24,
7,
-55,
11,
7,
0,
61,
30,
2,
-17,
13,
28,
8,
-40,
-12,
42,
4,
-19,
72,
-37,
12,
0,
-29,
14,
-28,
12,
-4,
2,
-39,
35,
-18,
-19,
-21,
-2,
-19,
7,
-3,
-13,
-39,
-2,
29,
-9,
-3,
-17,
12,
21,
-28,
-16,
6,
2,
7,
0,
21,
-16,
23,
-16,
-54,
-34,
9,
56,
-40,
-36,
8,
-8,
0,
13,
28,
2,
4,
-24,
-12,
13,
44,
73,
-9,
-37,
-36,
-21,
28,
-10,
39,
-18,
-5,
-11,
-37,
-11,
-14,
-25,
-19,
23,
-30,
-44,
-33,
-33,
-13,
17,
-14,
22,
-53,
29,
-2,
-14,
21,
-43,
31,
-12,
21,
7,
11,
-4,
9,
-51,
4,
-3,
-5,
17,
-29,
-6,
-23,
-12,
-74,
-2,
-1,
73,
-14,
-12,
16,
-48,
55,
6,
36,
-28,
-24,
47,
3,
8,
-26,
49,
-8,
26,
14,
7,
17,
-23,
-45,
-51,
-7,
7,
14,
-5,
-10,
30,
2,
30,
-14,
-4,
-7,
-16,
14,
-1,
-14,
-17,
-54,
50,
-38,
-1,
-21,
13,
14,
35,
37,
-28,
5,
-28,
18,
22,
-10,
-16,
-76,
8,
1,
-33,
-2,
34,
1,
31,
13,
-57,
-5,
-11,
-22,
-34,
15,
6,
15,
27,
-36,
6,
19,
-6,
34,
5,
-66,
44,
-24,
-3,
18,
0,
15,
5,
49,
-43,
-10,
5,
-10,
-52,
10,
-9,
7,
-41,
11,
-20,
0,
38,
-7,
3,
-9,
-47,
-35,
-17,
36,
26,
21,
-16,
-26,
3,
4,
3,
42,
-36,
-8,
23,
1,
-23,
-31,
-20,
-4,
19,
-8,
20,
35,
0,
-24,
-32,
-22,
1,
-50,
31,
1,
24,
17,
-40,
46,
-1,
44,
-21,
0,
2,
-8,
-28,
25,
-24,
36,
62,
-12,
89,
-22,
-12,
-16,
11,
21,
51,
-22,
11,
11,
2,
22,
7,
23,
10,
14,
4,
9,
-11,
-32,
21,
-39,
38,
-12,
3,
11,
31,
14,
52,
-24,
-48,
50,
43,
-6,
7,
-7,
13,
28,
16,
-46,
-45,
-14,
-1,
2,
8,
16,
47,
-2,
4,
-12,
-12,
43,
-32,
-35,
-17,
50,
-34,
-23,
38,
-30,
-13,
38,
34,
0,
-6,
14,
-17,
-1,
-41,
-26,
44,
28,
17,
40,
-11,
22,
-11,
20,
-7,
-33,
-21,
14,
-2,
-12,
25,
6,
46,
53,
-30,
-35,
6,
-15,
-39,
-11,
-14,
0,
-8,
-56,
0,
7,
-10,
-45,
-3,
-3,
-29,
-33,
-40,
15,
-19,
1,
17,
47,
13,
-10,
33,
-32,
-6,
8,
27,
1,
64,
28,
13,
-43,
5,
-78,
-12,
-28,
-4,
40,
-19,
16,
-22,
53,
7,
-21,
30,
34,
-37,
-8,
-29,
22,
10,
50,
-1,
1,
17,
-26,
-3,
-47,
33,
0,
-4,
3,
-23,
-57,
-22,
17,
26,
-51,
29,
-39,
49,
-38,
-5,
-45,
-5,
-10,
-28,
-40,
5,
-25,
-16,
21,
-4,
-6,
0,
22,
3,
-19,
-11,
10,
-6,
21,
-16,
-29,
-31,
-36,
-29,
6,
1,
-29,
36,
2,
33,
4,
-3,
-24,
-40,
11,
16,
10,
29,
26,
-1,
48,
-37,
2,
-11,
-24,
-2,
42,
3,
-17,
5,
17,
26,
36,
18,
-18,
33,
-3,
15,
-16,
-66,
-3,
1,
-10,
9,
25,
-4,
-20,
22,
-43,
-8,
0,
-24,
4,
-16,
25,
-38,
-32,
-27,
32,
-2,
71,
-50,
53,
17,
-13,
-3,
-25,
-61,
-20,
-10,
7,
-14,
-15,
12,
-87,
-8,
-25,
6,
-6,
2,
-55,
33,
-34,
18,
-47,
-49,
29,
-23,
-28,
21,
-30,
-8,
-31,
3,
-30,
14,
18,
-45,
-14,
16,
-19,
24,
17,
11,
41,
3,
-1,
23,
-43,
-10,
-8,
32,
-5,
-23,
35,
31,
15,
-31,
27,
-20,
-16,
40,
-23,
20,
-5,
35,
24,
8,
28,
39,
24,
44,
58,
45,
-36,
-5,
51,
32,
38,
-5,
1,
17,
2,
-2,
-1,
-68,
21,
6,
18,
2,
8,
-35,
11,
12,
24,
27,
-50,
-23,
3,
-2,
-28,
21,
-16,
-46,
-5,
57,
10,
-45,
2,
-29,
-6,
33,
-11,
-8,
-49,
40,
-8,
34,
4,
-24,
29,
2,
-30,
33,
-33,
6,
2,
7,
-10,
15,
-24,
-18,
52,
26,
49,
49,
51,
23,
-16,
-9,
-1,
-17,
-19,
30,
10,
10,
34,
-25,
15,
-14,
-9,
-40,
25,
-6,
11,
12,
-6,
27,
48,
-25,
45,
-33,
2,
4,
-10,
-27,
-51,
-17,
23,
51,
3,
9,
59,
39,
-48,
-23,
-30,
11,
-45,
-1,
-68,
39,
-5,
47,
11,
9,
-10,
6,
44,
-3,
42,
22,
20,
-2,
25,
-44,
-42,
-33,
-8,
-55,
8,
-10,
-45,
-19,
20,
49,
-34,
36,
-15,
48,
45,
25,
-7,
-19,
-9,
-32,
-18,
-25,
-2,
-16,
24,
17,
-30,
-22,
-41,
19,
-40,
-7,
-21,
-74,
7,
10,
11,
-1,
-13,
23,
-8,
35,
-15,
-33,
-55,
-9,
-24,
12,
-25,
45,
25,
-10,
-15,
-18,
27,
-77,
10,
29,
-11,
0,
-28,
-3,
6,
-6,
24,
-5,
32,
-19,
25,
-1,
-23,
39,
-26,
-6,
-12,
2,
-11,
-16,
72,
-14,
-4,
-7,
15,
-3,
-40,
-31,
32,
34,
2,
-74,
42,
55,
-28,
1,
29,
58,
-48,
25,
5,
6,
-36,
-24,
-50,
20,
3,
-11,
37,
20,
9,
-31,
13,
-33,
-39,
0,
-38,
-61,
9,
1,
1,
1,
-9,
76,
-18,
-12,
-12,
21,
-37,
2,
17,
11,
59,
19,
3,
-25,
16,
-12,
21,
-24,
-1,
33,
18,
15,
6,
-43,
23,
-60,
-20,
0,
-59,
-56,
16,
-22,
-13,
-63,
12,
-14,
-21,
55,
-16,
25,
-35,
-17,
-3,
10,
17,
1,
-21,
36,
29,
18,
-22,
9,
10,
-8,
-37,
-64,
5,
-14,
-51,
30,
3,
34,
48,
-53,
-36,
-17,
-19,
-16,
21,
-12,
11,
-48,
43,
-45,
-18,
-40,
-22,
41,
-43,
-6,
12,
-15,
-11,
26,
48,
-29,
16,
37,
12,
-3,
-3,
-1,
19,
64,
20,
-56,
-23,
-64,
-9,
-37,
-17,
-9,
4,
5,
-77,
40,
13,
57,
8,
-12,
-20,
-1,
-14,
28,
-1,
35,
-7,
47,
11,
-20,
0,
3,
15,
-28,
5,
20,
-7,
35,
11,
-9,
-37,
18,
21,
19,
30,
-8,
-14,
-17,
18,
-53,
-8,
27,
-4,
46,
8,
13,
-19,
40,
5,
44,
-47,
-76,
-14,
47,
20,
-32,
36,
-9,
60,
2,
7,
14,
4,
-27,
17
] |
Carpenter, C. J.
Plaintiff brought this action of replevin to recover from defendant the possession of a buggy. Her testimony tended to prove her ownership of the buggy; that by her direction the buggy was left with one Wes. Baker with instructions to sell the same; that defendant took the buggy (but under what claim the record does not show) and refused to deliver it to plaintiff when she demanded its possession. The trial court refused to permit defendant to prove that “Mrs. Sanford (plaintiff) is not the owner of this buggy, was not originally the owner of it, did not purchase it in the first instance and never was the owner of the buggy, and that her husband was the owner of the buggy,” and directed a verdict in plaintiff’s favor.
Defendant contends that the judgment entered upon said verdict should be reversed' because the court erred in ex-eluding the testimony tending to prove that the buggy was owned by plaintiff’s husband. Tb- entitle a plaintiff to recover in an action of replevin, he must establish his right to the possession of the property replevined. This he may do by proving that he was in actual and undisputed possession when defendant took the property. If he had no such possession, he must prove title. ..If he bases his right to recover upon proof of title; defendant may defeat his recovery by proving title in a third person. Nicholson v. Dyer, 45 Mich. 610; Upham v. Caldwell, 100 Mich. 264. If, however, the property was taken from the actual and undisputed possession of plaintiff, defendant cannot defeat recovery by proving title in a third person. He must in that case prove that he himself has a title superior "to that of the plaintiff. Rose v. Eaton, 77 Mich. 255; Conely v. Dudley, 111 Mich. 122; Van Baalen v. Dean, 27 Mich. 106.
Since the possession of her agent may be treated as her possession, the buggy while it was in the custody of Baker was in the possession of plaintiff. It may be inferred, too, that that possession was actual, exclusive, and undisputed. Defendant contends that there is no testimony tending to prove that this possession continued at the time he took the buggy. This testimony is supplied by the presumption that a condition once shown to exist is presumed to continue until the contrary is proved.
Defendant also contends that it may not be assumed that he would not have proved a title in himself superior to that of plaintiff had he been permitted to introduce the excluded testimony. The trial court had a right to assume that defendant in stating what he intended to prove, stated all he intended to prove. It was therefore proper to assume that he did not intend to prove a title in himself superior to that of plaintiff.
We think the trial court did not err in excluding the proffered testimony, and that the judgment should be affirmed.
McAlvay, Grant, Blair, and Mooríe, JJ., concurred. | [
19,
-37,
-59,
-4,
22,
-10,
6,
0,
16,
27,
-2,
-4,
2,
9,
38,
-41,
61,
27,
-1,
-26,
-30,
-16,
-24,
-20,
-14,
-34,
37,
-44,
-24,
22,
15,
-29,
-3,
20,
-6,
-12,
35,
73,
21,
35,
16,
3,
25,
-46,
-6,
-9,
33,
-13,
30,
-25,
50,
-28,
-6,
-25,
0,
-32,
21,
-8,
-21,
14,
-12,
15,
10,
-21,
-46,
-1,
17,
-21,
-59,
-67,
-31,
-27,
-19,
-13,
-81,
-47,
-35,
67,
2,
41,
34,
-13,
65,
-77,
2,
15,
5,
-15,
-55,
-40,
-54,
37,
-48,
19,
28,
7,
-8,
-25,
51,
5,
-19,
3,
13,
17,
-13,
10,
-22,
-85,
-51,
0,
25,
23,
48,
-24,
28,
-28,
-12,
-38,
1,
-1,
40,
-35,
-5,
-57,
-9,
18,
-2,
-21,
52,
25,
26,
48,
21,
8,
-5,
-10,
-4,
-6,
5,
-4,
44,
26,
-3,
-51,
5,
-7,
11,
22,
-20,
31,
20,
34,
-8,
-12,
-4,
15,
4,
-4,
43,
-10,
-19,
-31,
-16,
-21,
-1,
-5,
39,
1,
0,
0,
11,
9,
0,
-9,
24,
54,
-24,
22,
-34,
-32,
14,
12,
36,
-1,
-69,
-47,
-4,
29,
10,
8,
13,
21,
-18,
29,
-7,
53,
-64,
15,
-17,
6,
-12,
-16,
-20,
-50,
-10,
-38,
72,
-31,
14,
13,
-16,
11,
1,
-48,
-11,
-12,
49,
-13,
-22,
-6,
15,
-23,
42,
2,
-45,
-16,
8,
25,
50,
36,
36,
12,
-3,
18,
-54,
-32,
4,
-76,
67,
-35,
33,
14,
3,
-47,
-12,
-27,
-51,
44,
0,
10,
-13,
-21,
-28,
50,
-11,
-38,
2,
-4,
-14,
11,
-8,
41,
-28,
-38,
1,
18,
58,
11,
5,
-7,
18,
14,
-5,
32,
-13,
-3,
-47,
23,
32,
-9,
15,
11,
4,
-14,
4,
-4,
-12,
49,
23,
-45,
50,
-12,
21,
-41,
-23,
38,
-33,
7,
-54,
29,
5,
-15,
-33,
49,
20,
-27,
11,
3,
-6,
0,
-40,
9,
40,
-44,
56,
9,
-8,
-7,
-43,
56,
-35,
28,
-46,
6,
33,
-19,
-1,
17,
-23,
13,
-1,
-3,
-24,
24,
20,
0,
20,
-24,
-1,
15,
8,
39,
11,
-8,
10,
5,
0,
-20,
-1,
0,
-28,
-22,
-13,
-26,
4,
-18,
11,
0,
-19,
10,
11,
-4,
12,
4,
13,
17,
-6,
31,
-3,
34,
13,
-24,
-13,
8,
-51,
-70,
-54,
-21,
-13,
7,
-9,
-21,
-11,
-23,
25,
-26,
-30,
-45,
-34,
20,
-43,
-1,
44,
-1,
-50,
-8,
2,
-8,
2,
33,
-27,
55,
-2,
0,
-63,
16,
16,
21,
-36,
13,
-9,
28,
-20,
24,
33,
2,
33,
11,
-11,
4,
0,
-3,
-11,
-27,
27,
-30,
10,
5,
10,
0,
-6,
-40,
49,
-19,
27,
-22,
1,
-40,
21,
31,
-19,
-13,
-34,
-24,
8,
74,
17,
-6,
6,
3,
-4,
4,
-8,
-8,
53,
43,
50,
-14,
-12,
-32,
4,
-37,
13,
22,
61,
-63,
35,
-50,
-17,
11,
27,
22,
18,
0,
-23,
17,
-12,
-4,
-22,
46,
-15,
68,
17,
-12,
-10,
-32,
-30,
-29,
15,
-12,
6,
14,
-10,
35,
-57,
2,
-12,
35,
-31,
22,
-5,
29,
-19,
12,
49,
28,
68,
-2,
19,
26,
-24,
45,
24,
3,
-9,
-16,
13,
16,
16,
29,
-36,
5,
-26,
8,
-26,
21,
51,
24,
-29,
39,
39,
10,
23,
34,
0,
37,
31,
27,
24,
-30,
-37,
57,
-8,
-45,
-39,
-14,
17,
-8,
7,
14,
5,
-11,
10,
7,
33,
11,
6,
-17,
-36,
40,
13,
-1,
27,
6,
48,
-27,
9,
5,
41,
27,
-25,
-28,
-4,
-9,
-33,
28,
2,
2,
-44,
-13,
-5,
7,
12,
-56,
-32,
17,
-15,
38,
61,
-8,
-4,
-16,
1,
-66,
-36,
2,
-1,
-24,
-23,
-18,
6,
-5,
-39,
23,
27,
31,
-7,
26,
-19,
30,
41,
28,
-10,
-13,
5,
33,
-22,
14,
-5,
13,
5,
10,
-26,
7,
-24,
-64,
-18,
-28,
41,
-47,
7,
-3,
-16,
39,
-36,
-20,
-16,
11,
-42,
-27,
-6,
8,
-17,
-9,
-7,
-20,
-1,
-9,
-49,
-54,
-64,
43,
-12,
12,
24,
-23,
-12,
-27,
-28,
-28,
-16,
-53,
-62,
-39,
16,
-14,
-6,
-47,
-15,
-2,
32,
-60,
35,
67,
9,
44,
-17,
51,
-3,
18,
9,
-39,
31,
-44,
-20,
-7,
70,
14,
3,
-31,
0,
-12,
34,
23,
-44,
-6,
11,
-3,
12,
0,
-31,
10,
-7,
20,
-8,
-7,
-8,
14,
-13,
-10,
14,
55,
0,
-65,
10,
50,
6,
-24,
-5,
-32,
-31,
-19,
9,
-56,
27,
0,
11,
-27,
19,
-58,
66,
-7,
-40,
-43,
-10,
34,
62,
3,
36,
-12,
-44,
25,
43,
-26,
-34,
-9,
0,
-12,
34,
46,
25,
-24,
16,
48,
8,
13,
12,
-12,
-50,
-2,
14,
-2,
-27,
-35,
18,
53,
-29,
-76,
45,
-27,
-40,
22,
30,
-42,
-14,
19,
30,
55,
32,
-9,
27,
-64,
-27,
38,
-26,
-22,
66,
-31,
38,
17,
5,
11,
-10,
-10,
21,
4,
41,
3,
-10,
-30,
-26,
3,
-18,
-12,
25,
0,
39,
36,
-38,
-6,
4,
-35,
-1,
-62,
20,
25,
55,
47,
-4,
30,
3,
14,
-61,
-52,
-15,
-39,
41,
-28,
-43,
-21,
-5,
-45,
1,
13,
0,
15,
19,
-25,
16,
28,
28,
20,
-1,
36,
48,
-23,
-9,
-5,
4,
-25,
1,
21,
-3,
40,
-65,
-12,
0,
49,
2,
-15,
-47,
8,
-28,
13,
53,
-40,
12,
1,
29,
39,
31,
12,
-57,
42,
49,
-25,
34,
-20,
-16,
40,
36,
0,
-45,
43,
-67,
-14,
14,
-31,
-53,
-22,
-16,
59,
58,
-1,
-38,
1,
24,
-16,
-5,
-75,
-38,
5,
-20,
10,
46,
-30,
-8,
-23,
-53,
4,
21,
-20,
-18,
11,
18,
-21,
-29,
-22,
29,
29,
37,
15,
-11,
-31,
-14,
-12,
-15,
12,
-38,
49,
0,
-5,
33,
33,
36,
-13,
15,
-30,
-5,
16,
20,
-20,
-31,
-4,
-18,
-45,
18,
13,
-5,
-10,
-23,
29,
63,
32,
9,
-9,
29,
7,
-45,
-9,
-11,
29,
20,
0,
12,
24,
-11,
31,
-24,
23,
27,
15,
0,
-26,
-41,
30,
13,
26,
-17,
61,
-23,
-61,
-83,
42,
18,
-38,
-4,
-23,
-76,
-27,
0,
20,
38,
18,
-67,
-30,
0,
-26,
6,
27,
-58,
-48,
25,
-15,
20,
-49,
31,
27,
-15,
-8,
-50,
12,
7,
10,
27,
15,
-47,
21,
-4,
-2,
-24,
48,
69,
18
] |
McAlvay, J.
Complainants are the executors of the last will and testament of Richard H. Connor, deceased, joined with the legatees under said will. Defendants are Bryant Walker, the custodian of a certain deed hereinafter referred to, and the children by a former marriage of the deceased wife of said Richard H. Connor. Both Mr. and Mrs. Connor had been previously married, and each had children when married and children were also born to them. On February 20, 1886, said Richard H. Con-nor made and executed a certain deed, duly acknowledged by him March 1, 1886, of seven lots of land situated in the town of Grosse Pointe, Wayne county, Mich., and deposited said deed with the law firm of Walker & Walker, of Detroit, who were his attorneys. This deed was witnessed and acknowledged by and before E. C. Walker, the senior member of the firm. It was placed in an envelope, upon which was written the following indorsement:
“Deed to be delivered in case of death of R. H. Con-nor, grantor.
“Walker & Walker.”
It was deposited in the safe, and there remained in the custody of Walker & Walker, and of Bryant Walker, the successor of said law firm, after the death of his father. Catherine Connor, the grantee in said deed, was not a party to this transaction and had no knowledge that such deed had been made until December 16, 1893, nearly eight years afterwards. Catherine Connor died in December, 1893; Richard H. Connor died August 10, 1903. Complainants in this suit first learned of the existence of this deed, and that it was in the custody of Bryant Walker, December 9, 1903. This suit was commenced December 14, 1903. The bill of complaint, among other things, alleges the interest of complainants; the facts relative to making this deed; that it was deposited subject to the control and dominion of Mr. Connor, to be delivered in case Catherine survived him, if not previously recalled or revoked; that her death terminated all authority in Walker & Walker to deliver said déed; that the property described in said deed belongs to the estate of Connor; that Bryant Walker intends to deliver said deed to defendants, the heirs of Catherine Connor; that such delivery would be a fraud upon complainants, and a cloud upon their title — and prays that said deed may be decreed to have no legal effect, and may be set aside and declared void, and said Walker may be decreed to surrender the same to be destroyed, and also for an injunction against him, restraining him from delivering the same. Defendant Walker appeared, admitting that he had the deed in question, and disclaimed any interest in the suit, and alleged that he held the deed to be produced and delivered as the court might direct. The bill was taken as confessed by defendant Theodore B. Rivard. The other defendants answered, claiming that a delivery of this deed was actually made by the grantor to the grantee, December 16, 1893. Upon the hearing the court found the facts against defendants, and granted a decree in favor of complainants.
The proofs show that on December 16, 1893, Richard H. Connor and Catherine Connor his wife were both very sick with pneumonia at their home in Grosse Pointe; that Judge Henry N. Brevoort, was sent for and went to see them. As a witness for complainants he testifies that he found them both sick in bed in the same room. Mr. Connor was in the southwest corner, and Mrs. Connor in the northwest corner, of the large room they occupied. He states that he dictated a statement of what occurred at this interview, and presumes he did so on the same day. This statement was copied by a typewriter, and by the witness deposited with Mr. Walker. It was produced in evidence and identified by the witness, and sworn to be a true statement of what occurred. He testified:
‘‘ I rely more specifically upon my memoranda than upon my memory of it. It is more to be relied upon.
“ Q. So you offer all the facts as contained in this memoranda, marked ‘Exhibit 3,’ this typewritten memoranda, as the facts exactly as they were and as they occurred at that time?
“A. Yes, sir; as I have already stated, that these facts do not deviate from the exact circumstances as they •existed at that time.”
This statement (Exhibit 3), which witness used to refresh his recollection and from which he testified, is as follows:
“Saturday, December 16th,-1893, I was called upon by Mr. Frank St. Aubin with the request that I was wanted up to Mr. Connor’s house at Grosse Pointe. The carriage being in waiting at the Griswold street entrance, we drove up, and I was told by Mrs. Mary Moran that her mother wanted to see me. She stepped out of the room, leaving me alone with Mr. and Mrs. Connor, both being at the time sick in bed in the same room.
“Mrs. Connor said: ‘Years ago Mr. Connor bought some property [pointing across the street] with my money, and I want him to give me a deed of it.’
“ I asked her if she had asked him to do so, and she said she had a number of times.
“I said, ‘What did he say?’and she said, ‘He said, “ No.” ’
“ I said, ‘ When did you speak to him last about it ? ’ and she replied, ‘About three weeks ago, and he said, “No.” ’
“I stepped from her bedside to Mr. Connor’s bedside and said, ‘ Mr. Connor, your wife claims that some property in this vicinity has been bought with her money, and she would like to have you give her a deed of it.’ He replied, ‘ I attended to that years ago, 12 years ago. The deed is at Mr. Walker’s office.’
‘ ‘ I then said to her, ‘ He says he has attended to this years ago, and that the deed is at Mr. Walker’s office in the Moffat building.’ I again turned to Mr. Connor and said, ‘ Mr. Connor, if that is a fact, will you permit me to go and get the deed ? ’ He said, ‘ Certainly, I have trusted you before, and I can do so again. Go and get it.’
“ I left the house, and went directly to the office of Walker & Walker, obtained the deed, gave my receipt therefor, and returned again to Mr. Connor’s house. Both Mr. and Mrs. Connor appeared to be very sick. Holding the deed in my hand, I stated to Mr. Connor, ‘ I went down to the office and obtained the deed, and have returned here with it.’ I said, ‘ Shall I show it to Mrs. Connor and read it to her ? ’ He made no reply. I turned, opened the deed, and read the description of the property to her. It was witnessed by E. C. Walker .and John Higgs, presumably a clerk in the office. The instrument was acknowledged on the 1st of March, 1886, and the acknowledgment taken by E. C. Walker, a notary public. I said, ‘ Now, Mrs. Connor, this deed is all right, because I know that some of the pieces of property mentioned in the deed are part of the old Connor farm.’
“I said, ‘ Mr. Connor, this is the deed which you executed in Mr. Walker’s office ? ’ and he said, ‘Yes, sir.’
“I said, ‘ Is this the property you want to give your wife ? ’ and he said, ‘ Yes, sir.’
“ I said, ‘Mrs. Connor, do you wish to keep this deed, or shall I keep it ? ’ She said, ‘ You had better keep it.’ And Mr. Connor says, * Keep it, and when we are well we will go down to your office and attend to it together.’ “No one else was present. I was alone with them during the entire conversation.”
Witness returned the deed at once to Mr. Walker, to whom he had receipted for it. Catherine Connor died within one week after this occurrence. Richard H. Con-nor recovered, and lived about 10 years. Evidence was received showing his treatment of this property after his wife’s death. He made a will in January following his sickness, which was drawn by Judge Brevoort, by which he disposed of all of his estate, at which time he said, with reference to the deed to his wife, that she was dead now, and the deed was no good, or of no consequence. He afterwards paid taxes upon this land, and interest upon a mortgage, and also entered into a contract of sale of part of it. If there was a delivery of this deed, it occurred at the time these parties were sick, on December 16, 1893, and it must rest upon the statements, acts, and intention of the grantor at that time. The memorandum of Judge Brevoort is the record of that transaction. From this memorandum it appears that Mr. Connor was willing that his wife should know relative to this deed, and had confidence enough in Judge Brevoort to allow him to bring it to the house. He identified the deed and the property ■described in it. He did not consent that it should be shown or read to his wife. Judge Brevoort’s statement to the wife, “ Do you wish to keep this deed, or shall I keep it ? ” was voluntary on his part and unauthorized. Connor said to him, “ Keep it, and when we get well we will go down to your office and attend to it together.” No delivery can be implied from what occurred. Instead of making a delivery of this deed, it is clear to us, from this last statement of Mr. Connor, that his express intention was not to do so. The evidence offered relative to subsequent statements of Mr. Connor, and his dealings with this land, need not be considered.
The decree of the circuit court is affirmed, with costs.
Grant, Blair, Montgomery, and Ostrander, JJ., concurred. | [
-26,
28,
30,
-15,
13,
4,
47,
31,
25,
-19,
-24,
-46,
3,
66,
-26,
0,
-25,
-16,
0,
-23,
-11,
-3,
1,
-26,
39,
8,
36,
19,
5,
-30,
-31,
9,
-33,
5,
52,
-26,
40,
-19,
-1,
-7,
-9,
-15,
24,
4,
7,
35,
40,
11,
25,
-21,
-4,
13,
5,
15,
21,
12,
-20,
2,
2,
-2,
-12,
-35,
18,
-21,
-52,
-28,
1,
20,
-9,
-42,
28,
20,
29,
-9,
-28,
10,
-11,
-43,
1,
18,
10,
-56,
43,
7,
-41,
5,
-33,
-28,
-7,
11,
-12,
21,
20,
8,
28,
39,
16,
22,
-33,
12,
-3,
11,
-3,
30,
15,
-11,
27,
-61,
-25,
10,
-38,
0,
60,
30,
-9,
-1,
14,
-32,
-11,
23,
-8,
-9,
20,
-68,
-52,
51,
2,
9,
11,
63,
51,
-8,
-51,
-5,
-21,
25,
-43,
-8,
51,
7,
43,
14,
-12,
-72,
-7,
2,
-65,
-19,
-15,
-32,
3,
3,
-6,
13,
48,
-32,
27,
12,
70,
-13,
76,
-30,
16,
-74,
-62,
-9,
-1,
18,
7,
23,
49,
-21,
-48,
-18,
19,
-36,
7,
4,
-34,
-27,
52,
15,
15,
-45,
11,
-33,
29,
-3,
-44,
36,
-17,
-29,
27,
35,
-11,
5,
17,
-35,
8,
18,
-13,
-34,
2,
-49,
-26,
-42,
6,
-2,
-44,
22,
0,
-32,
-13,
-23,
-23,
-10,
33,
-62,
-83,
-10,
20,
29,
17,
-12,
-3,
-43,
19,
-54,
-45,
14,
31,
11,
-18,
36,
-42,
-35,
-2,
-2,
-21,
-37,
-2,
22,
-30,
-10,
-41,
48,
-62,
0,
-7,
4,
3,
-7,
0,
11,
26,
10,
-4,
0,
34,
5,
-65,
24,
-61,
42,
9,
24,
13,
-7,
-10,
8,
36,
-24,
48,
-15,
-16,
-40,
9,
15,
-61,
-9,
12,
-35,
6,
15,
14,
40,
-28,
27,
-42,
-1,
-10,
-5,
16,
16,
25,
5,
-32,
-29,
9,
-30,
-28,
27,
38,
0,
-34,
-13,
9,
-45,
77,
24,
8,
0,
12,
-40,
43,
15,
-28,
-9,
62,
11,
8,
1,
-14,
-40,
25,
0,
21,
-6,
15,
16,
-10,
-2,
26,
-38,
-25,
-9,
50,
-10,
-17,
-34,
34,
20,
-1,
-20,
-10,
-6,
36,
-34,
-5,
37,
2,
-27,
-3,
33,
-43,
8,
59,
1,
-26,
41,
30,
2,
-43,
34,
35,
18,
-26,
-17,
10,
15,
17,
0,
9,
49,
-12,
-10,
-93,
33,
20,
37,
-18,
-31,
-8,
41,
50,
-17,
-46,
0,
-5,
88,
-45,
25,
13,
-6,
-28,
-26,
-46,
9,
-62,
-4,
16,
56,
-3,
48,
-66,
17,
-22,
-21,
26,
-10,
-15,
-26,
58,
-17,
10,
1,
9,
-36,
33,
16,
40,
29,
-8,
-41,
4,
-3,
33,
40,
-10,
-31,
-5,
10,
30,
26,
38,
2,
-23,
24,
11,
21,
36,
10,
32,
-3,
-1,
15,
2,
5,
35,
-2,
43,
54,
-24,
56,
0,
-23,
44,
11,
0,
-17,
19,
-15,
35,
49,
0,
18,
-11,
-15,
15,
22,
-38,
10,
-10,
-39,
-16,
-10,
22,
16,
-4,
-11,
15,
2,
-8,
34,
-24,
-48,
5,
-7,
-54,
-54,
44,
-41,
-21,
50,
3,
-6,
-27,
-47,
4,
-15,
-3,
1,
11,
67,
-17,
-12,
-48,
7,
7,
58,
-17,
-22,
25,
-6,
-22,
95,
62,
-8,
48,
-5,
22,
-47,
-87,
-9,
-10,
17,
54,
18,
42,
7,
-32,
2,
-7,
6,
-42,
-23,
-15,
25,
10,
4,
32,
51,
88,
20,
-12,
28,
-27,
-10,
38,
14,
-16,
-54,
1,
10,
-8,
31,
58,
-27,
-1,
53,
-18,
7,
6,
-44,
44,
-20,
37,
-39,
-3,
3,
-23,
37,
39,
-32,
-16,
14,
5,
-52,
-42,
-12,
0,
8,
-8,
-34,
68,
42,
52,
30,
-37,
48,
0,
-27,
-54,
-43,
-27,
-5,
-27,
30,
48,
6,
-3,
-47,
-27,
-20,
-24,
-29,
-35,
22,
9,
-41,
-11,
-34,
4,
25,
-9,
9,
-24,
-47,
23,
1,
15,
11,
42,
15,
10,
-11,
19,
-20,
-27,
68,
-26,
-7,
-21,
41,
2,
20,
2,
26,
-27,
-18,
-73,
6,
-38,
0,
13,
13,
-22,
14,
-16,
-16,
-52,
4,
23,
19,
-35,
-47,
31,
13,
11,
-11,
26,
-31,
-10,
4,
48,
10,
22,
-3,
-6,
33,
9,
-26,
-34,
-27,
-36,
32,
-26,
13,
73,
0,
18,
-14,
-2,
35,
36,
-83,
-18,
-16,
-27,
16,
-6,
-55,
-3,
-11,
-62,
18,
16,
-15,
47,
10,
-20,
76,
-25,
38,
13,
-14,
-9,
1,
-34,
-33,
-9,
-18,
14,
-54,
-24,
63,
37,
4,
-2,
0,
-25,
-10,
28,
-55,
12,
-16,
13,
-22,
-17,
0,
-6,
17,
-2,
-2,
3,
-36,
0,
-34,
-34,
16,
-9,
-54,
-28,
6,
28,
-45,
5,
44,
10,
-19,
24,
15,
-40,
32,
31,
-53,
-25,
-11,
7,
2,
24,
-24,
56,
-26,
10,
-31,
-36,
-8,
28,
-15,
0,
37,
0,
4,
-16,
10,
1,
13,
30,
-17,
11,
-38,
9,
4,
-19,
3,
-15,
-12,
38,
30,
38,
-5,
7,
3,
-44,
-24,
-20,
-45,
-26,
-12,
-6,
27,
-30,
41,
0,
-49,
-18,
-5,
13,
45,
0,
-49,
-19,
-18,
-40,
28,
-15,
46,
9,
46,
-1,
29,
35,
10,
-1,
-14,
33,
52,
-33,
11,
22,
-62,
-9,
22,
5,
-34,
19,
21,
17,
-13,
-7,
18,
-35,
21,
2,
14,
-2,
21,
34,
-15,
-14,
4,
-18,
42,
-29,
-66,
-23,
0,
-27,
13,
50,
-2,
-20,
-61,
-50,
27,
16,
-45,
34,
-9,
-10,
-2,
-69,
1,
42,
-6,
19,
-47,
-11,
-11,
18,
18,
-23,
-26,
-26,
32,
46,
-29,
-45,
21,
14,
0,
-29,
40,
-14,
-3,
18,
-46,
68,
-4,
-21,
-34,
-56,
-50,
-51,
-22,
8,
51,
-4,
-18,
24,
-79,
-21,
-3,
-51,
-21,
5,
-2,
-22,
4,
1,
-32,
-21,
-17,
-14,
-4,
8,
20,
9,
29,
4,
-3,
-22,
0,
23,
9,
0,
-39,
0,
13,
94,
1,
18,
-10,
-2,
0,
36,
-5,
-5,
37,
28,
-24,
32,
42,
10,
97,
-17,
-63,
-30,
43,
-4,
-15,
5,
0,
42,
-4,
-13,
12,
16,
5,
-15,
-11,
-33,
-67,
-12,
7,
31,
23,
41,
-58,
26,
-48,
-16,
29,
4,
17,
43,
-54,
-35,
-6,
21,
20,
0,
-34,
-17,
6,
14,
-30,
-30,
-3,
10,
-37,
19,
-13,
23,
-18,
25,
0,
17,
-33,
-43,
24,
19,
23,
-18,
17,
35,
38,
16,
-4,
-8,
-29,
6,
24
] |
McAlvay, J.
Complainant and Nellie Haynes, her sister, on July 6, 1899, acquired title to lot 62 in the village of Dundee, in Monroe county, from Joseph S. Dickerson and wife, the material provisions of which were as follows: •
“This indenture, made the 6th day of July in the year of our Lord one thousand eight hundred and ninety-nine, between Joseph S. Dickerson and Ella T. Dickerson, his wife, both of the village of Dundee, county of Monroe, and State of Michigan, of the first part, and Nejlie Haynes, of the same place, and Cora Finch, of the city of Lansing, Ingham county, and State of Michigan, and the survivor of them, of the second part,
“ Witnesseth, That the said party of the first part, for and in consideration of the sum of one dollar, love, and affection and other considerations to them in hand paid by the said parties of the second part, the receipt whereof is hereby confessed and acknowledged, do by these presents, grant, bargain, sell, remise, release, and forever quitclaim unto said parties of the second part and the survivor of them, and to their heirs and assigns, forever, all that certain piece or parcel of land, situated in the village of Dundee in Monroe county, and State of Michigan, known and described as follows: * * *
“ Together with all and singular the hereditaments and appurtenances thereunto belonging or in anywise appertaining. To have and to hold the said premises as above described to the parties of the second part and the survivor of them, and to their heirs and assigns, to the sole and only proper use, benefit, and behoof of the parties of the second part, and the survivor of them, and their heirs and assigns, forever.”
On April 9, 1904, Nellie Haynes quitclaimed to defendant, her husband, all her right, title, and interest in said premises, described as an undivided one-half. She died May 16, 1905. During her lifetime defendant acted as agent of these two sisters in renting this property and collecting the rents for them. After the death of his wife, defendant placed his quitclaim deed on record, May 22, 1905, and thereafter claimed to be a tenant in common with complainant in said premises, owning an undivided one-half thereof, and entitled to one-half of the rents.
Complainant filed her bill in the circuit court for Monroe county, in chancery, setting forth the above facts, claiming as survivor to be sole and absolute owner in fee of said premises, and praying that she be decreed to be such owner, that the cloud of said deed upon her title be removed; and for an accounting-with defendant for rents received by him. Defendant demurred to this bill of complaint for the following reasons: That by conveyance to complainant and Nellie Haynes, the latter received title to an undivided one-half of the premises and a lawful right to convey the same; that by the deed to him he took title to such undivided one-half interest, and was entitled to possession and rents and profits thereof. The demurrer was overruled and defendant’s counsel having stated upon the argument that in such case they did not desire to answer the bill of complaint, a decree was entered for complainant granting the relief prayed.
Defendant asks this court to reverse this decree for the reasons set forth in the demurrer. The case must be determined upon the construction of the deed from Dickerson and wife to complainant and her sister. The intent of the grantor, as clearly expressed in the deed, was to convey a moiety to each of these parties for life, with remainder to the survivor in fee. This is expressed in the premises, in the granting-clause, and in the habendum. By a conveyance of her interest, could either of the grantees in this deed create a tenancy in common, so as to cut off the contingent remainder ? The case of Midgley v. Walker, 101 Mich. 583, is urged as authority that this might be done. That was a case where the interest of one of two joint tenants under a deed, where the right of survivorship was expressly granted, Was purchased under an execution sale upon judgment against him, and this court held that such interest was subject to levy and sale. The decision goes no further than that. No greater estate can be alienated, either by the act of a party or by operation of law, than such party has in the real estate. In Midgley v. Walker, supra, this court quotes with approval 1 Washburn on Real Property (6th Ed.), § 862:
“No charge, therefore, like a rent, or a right of way, or a judgment, created by one co-tenant, can bind the estate in the hands of the survivor, unless the charge be created by “the one who becomes such survivor, or the creator of the -charge releases his estate to a co-tenant, who, as releasee, •accepts, with that part of the estate, the charge inhering "therein by his own act.”
In the case at- bar neither grantee could convey her •interest in the estate so as to cut off the remainder. The ■deed which we are construing conveys to the grantees, “to them and the survivor of them, and to their heirs and assigns forever. ” The use of the words ‘ ‘ their heirs ” ■does not obscure the plain intent of the grantor. The fact that the plural is often used where the singular was intended is recognized. If the deed under consideration had as defendant contends made the grantees therein named joint tenants of the fee, either of those grantees ■could, by conveyance in her lifetime, have deprived the other of the right of survivorship. 1 Washburn on Real .Property (6th Ed.), § 864; 1? Am. & Eng. Enc. Law (2d Ed.), p. 650. But that deed did not make the grantees joint, tenants of the fee.
“ Deeds and devises are often made to two or more, and to the survivor of them and his heirs, the effect of which is to make them joint tenants for life with a contingent remainder in fee to the one who survives.” 1 Washburn on .Real Property (6th Ed.), § 866.
In such cases — and this is such a case — it is settled (see Schulz v. Brohl, 116 Mich. 603; Ewing's Heirs v. Savary, 3 Bibb [Ky.], 235) that no joint tenant can, by his •conveyance or otherwise, affect the right of survivorship.
The decree of the circuit court is affirmed, with costs.
Carpenter, C. J., and Blair, Ostrander, and .Moore, JJ., concurred. | [
-56,
40,
-6,
-27,
-23,
41,
-23,
4,
20,
-52,
-60,
-25,
-10,
24,
-9,
27,
5,
4,
-1,
12,
-18,
-11,
-50,
-15,
-7,
-11,
-3,
30,
-3,
-55,
-44,
69,
-43,
8,
70,
-15,
-16,
-14,
-43,
-39,
-35,
-42,
-18,
31,
14,
20,
-11,
-2,
56,
9,
-10,
-9,
13,
32,
-23,
2,
-45,
17,
19,
21,
-24,
-47,
-25,
-23,
-26,
-13,
54,
-16,
-2,
-28,
97,
-53,
13,
-60,
-15,
33,
-11,
14,
-23,
15,
18,
-33,
25,
31,
-44,
-14,
-5,
-21,
-18,
-19,
8,
-5,
-6,
46,
32,
-10,
21,
56,
-16,
-14,
-7,
12,
43,
55,
20,
-32,
2,
-1,
-51,
1,
-30,
-12,
101,
-12,
31,
17,
9,
-30,
-28,
43,
1,
-44,
-22,
-58,
-9,
37,
-36,
23,
56,
-29,
49,
-51,
-37,
-22,
4,
-28,
-12,
33,
76,
7,
24,
66,
-49,
-22,
-57,
-3,
-75,
-60,
-22,
-75,
-44,
31,
-24,
-10,
7,
-65,
83,
0,
13,
-12,
29,
-20,
28,
-47,
-87,
-26,
9,
-4,
53,
47,
36,
-70,
-73,
0,
1,
-29,
15,
-39,
-20,
2,
-4,
-4,
-10,
-71,
-22,
-87,
16,
-8,
-16,
29,
22,
-20,
13,
6,
-22,
48,
19,
-39,
-36,
66,
58,
-35,
-11,
-69,
-9,
-43,
37,
29,
-10,
-20,
-6,
-17,
-44,
1,
-58,
19,
16,
45,
-40,
-14,
-2,
-30,
15,
-21,
3,
-51,
26,
-28,
4,
-2,
-4,
-8,
4,
51,
-13,
-16,
-17,
16,
-4,
22,
-1,
-31,
0,
-28,
49,
30,
-34,
3,
-38,
39,
-25,
-6,
-15,
5,
11,
-17,
3,
41,
-7,
25,
-38,
28,
-7,
-21,
19,
-19,
13,
-13,
-10,
5,
22,
10,
24,
13,
-13,
-21,
11,
31,
1,
-1,
47,
-43,
-31,
-6,
33,
5,
-21,
50,
-45,
18,
-29,
25,
1,
20,
-8,
-4,
-4,
-30,
49,
16,
-43,
37,
-10,
3,
-14,
-7,
-8,
-8,
38,
0,
42,
-1,
34,
-6,
29,
-1,
-16,
-19,
-2,
60,
4,
-17,
-2,
0,
-24,
39,
-14,
-17,
-19,
42,
16,
10,
-9,
-21,
-3,
14,
27,
37,
-4,
-84,
22,
35,
-20,
11,
-15,
-47,
17,
-4,
5,
20,
-3,
-23,
49,
27,
-28,
42,
41,
46,
-21,
14,
51,
68,
10,
40,
19,
5,
13,
-26,
9,
-20,
94,
6,
23,
31,
20,
-3,
-38,
8,
36,
46,
31,
-22,
-7,
57,
-4,
24,
-25,
-51,
-43,
28,
-60,
29,
-13,
-4,
26,
-54,
22,
5,
-21,
-54,
-15,
24,
-4,
8,
-42,
18,
-11,
26,
1,
27,
8,
-37,
0,
-41,
32,
-47,
-43,
-12,
0,
35,
38,
3,
35,
-63,
-38,
-25,
-2,
21,
19,
-26,
15,
25,
34,
49,
17,
20,
-44,
33,
37,
65,
63,
-3,
47,
-8,
-12,
-23,
-19,
-33,
26,
-23,
31,
42,
-48,
-23,
46,
7,
-12,
-7,
16,
41,
9,
0,
12,
75,
13,
-3,
-5,
-51,
6,
51,
-22,
43,
4,
-101,
27,
-6,
30,
9,
36,
-3,
52,
-37,
-7,
-6,
-14,
-23,
13,
-30,
10,
-9,
56,
-21,
-15,
48,
-30,
-38,
5,
-3,
57,
1,
7,
26,
20,
25,
-13,
9,
-32,
17,
-43,
17,
-29,
-17,
14,
20,
-37,
61,
42,
-14,
20,
-6,
-44,
16,
-56,
24,
40,
5,
57,
4,
27,
24,
-3,
-5,
-22,
35,
-17,
7,
4,
32,
39,
12,
49,
11,
33,
0,
-34,
13,
-2,
-28,
-15,
-22,
8,
-49,
-42,
-5,
-8,
18,
9,
-49,
10,
-11,
-8,
-63,
34,
-81,
36,
-51,
20,
-9,
18,
10,
-67,
17,
41,
-40,
11,
-22,
-31,
-27,
-17,
71,
-2,
-22,
-14,
4,
25,
-17,
-38,
7,
-9,
54,
9,
12,
-43,
-6,
38,
-43,
24,
57,
23,
-67,
-36,
-9,
-28,
19,
-30,
16,
30,
-40,
10,
-37,
-30,
34,
-6,
5,
14,
25,
9,
-67,
26,
23,
47,
16,
19,
15,
24,
6,
28,
19,
-40,
16,
-7,
0,
2,
25,
-33,
0,
-8,
0,
21,
2,
-47,
-15,
-45,
26,
-34,
0,
-3,
-55,
-28,
-6,
-37,
31,
42,
-28,
-9,
-32,
37,
24,
34,
-5,
56,
15,
-35,
67,
20,
-2,
54,
35,
40,
20,
10,
-27,
13,
-3,
-33,
6,
-1,
19,
45,
22,
41,
15,
4,
27,
64,
-15,
8,
-6,
-54,
10,
8,
-16,
18,
16,
5,
-27,
-4,
28,
34,
1,
8,
92,
13,
19,
-44,
15,
8,
-59,
3,
-2,
-50,
0,
88,
-11,
-31,
105,
0,
40,
30,
-12,
20,
-25,
-25,
-12,
44,
-21,
-3,
-69,
-28,
-17,
56,
43,
-34,
-17,
27,
-18,
-8,
43,
-18,
53,
-6,
-68,
-38,
27,
-19,
-20,
15,
12,
3,
-8,
-41,
-10,
23,
35,
23,
-42,
6,
-9,
-34,
-9,
-17,
61,
29,
14,
-19,
1,
-36,
-15,
-16,
-3,
-15,
18,
-48,
-1,
-6,
7,
9,
0,
-28,
-15,
37,
-18,
7,
-54,
-22,
2,
26,
-11,
60,
5,
-13,
-8,
48,
17,
-79,
-18,
-20,
-27,
-34,
-13,
-60,
2,
-39,
11,
52,
2,
-20,
16,
-26,
66,
-18,
18,
4,
-23,
-26,
1,
-38,
53,
-42,
47,
8,
5,
-20,
-21,
-29,
-6,
55,
-19,
-43,
-2,
71,
-6,
-29,
-8,
-5,
-1,
6,
37,
41,
11,
-45,
-2,
-37,
-10,
63,
-7,
38,
-36,
0,
-27,
-18,
-18,
-18,
-1,
-79,
-55,
-11,
-18,
28,
-2,
59,
-51,
-56,
-78,
-59,
9,
25,
-30,
0,
24,
5,
0,
-38,
-34,
20,
-8,
9,
-52,
18,
-25,
-25,
-33,
-8,
34,
-28,
27,
28,
-20,
-14,
3,
42,
69,
14,
41,
-5,
14,
22,
-10,
14,
-16,
-17,
23,
-18,
2,
-28,
-8,
-13,
65,
33,
-1,
-57,
-60,
-59,
-30,
-31,
-18,
-97,
-6,
-56,
27,
3,
-26,
-21,
-12,
-19,
-7,
7,
24,
-32,
32,
-10,
47,
-51,
-14,
5,
39,
-25,
-90,
-23,
2,
8,
15,
35,
1,
12,
54,
55,
40,
-12,
0,
-46,
-35,
72,
54,
-37,
4,
-24,
2,
16,
52,
76,
27,
41,
6,
29,
-42,
17,
54,
51,
-13,
-25,
0,
-3,
-25,
-22,
12,
43,
-16,
15,
-58,
13,
-32,
-42,
43,
5,
-36,
44,
-5,
-54,
-30,
15,
-54,
2,
12,
0,
2,
11,
0,
-31,
33,
42,
-45,
25,
-6,
-8,
-32,
51,
-67,
-16,
21,
-58,
-24,
65,
5,
45,
-8,
29,
54,
0,
8,
8,
-30,
-30,
6
] |
Moore, J.
Act No. 79, Pub. Acts 1905, amended section 2622, 1 Comp. Laws, by adding thereto the following :
“ The county surveyor shall keep the field notes and other county surveyor’s records in a fireproof vault, in an,’ office at the county seat, to be designated by the board of supervisors as a depository for the same, excepting that this shall not apply to the fieldbooks which are required to be used in the field by the surveyor in making his surveys, during the time when such books are thus being used. The field notes and records required by this act shall be accessible to the public at any time, subject to such regulations as may be provided by the board of supervisors. The county surveyor and his deputies shall keep the records of their surveys required by this act written up in full for each month within seven days after the close of the month.”
Acting under its provisions the board of supervisors of Grand Traverse county, on the 13th of October, 1905, adopted the following resolutions:
“Whereas, by Act No. 79 of the Public Acts of 1905, which refers to the safekeeping of the books and records of the county surveyor, it becomes the duty of this board to designate a depository for the safekeeping of said books and records: It is therefore resolved that the register of deeds’vault is hereby designated as such depository.”
The respondent declined to keep the field notes and other records of his office in the depository designated in the resolutions so adopted. The relator sued Out a writ of mandamus in the circuit court to .compel the county sur-' veyor to keep the field notes and other records of his office in such depository. A hearing was had and the judge issued an order, the material parts of which read:
“ We, therefore, being willing that due and speedy justice should be done the said board of supervisors in the premises, do command and firmly enjoin you that immediately upon receipt of this, ourwrit, you do, without delay, deposit the field notes and other county surveyor’s records ■of the said county of Grand Traverse in the fireproof vault in the register of deeds’ office in said county of Grand Traverse, which has been so designated as a depository for the same as aforesaid, and that you keep such records in such depository, except during business hours when said records are by law required to be kept open to the inspection of the public, and also excepting the fieldbooks which are required to be used in the field by the county surveyor in making his surveys, during the time when such books are thus being used.”
The respondent seeks to review this order by certiorari.
It is the claim of the respondent (we quote from the brief of counsel):
“1. That the circuit court had no jurisdiction to render judgment against respondent because no provision was made for the access to or inspection of the books and records of the county surveyor’s office by the public as provided by law.
“2. That by the final order, the books and records of the surveyor’s office were removed out of his custody and control and required to be kept in the register of deeds’ office without giving any facilities to the surveyor for keeping his books open in his office for the inspection of the public as provided by the statute.
“3. That the county surveyor is under bonds for the custody and safekeeping of these books, and that by the final order they are taken out of his possession and custody without any security to the surveyor that the books shall be properly cared for.
“4. That there is no provision made by the board by which the surveyor himself can have access to the books at times adequate and necessary for the carrying on of his business.
“5. That it is shown by the undisputed testimony in the case that the facilities that could be given by the register of deeds’ office as the same is carried on for the use of said books are so limited that it will greatly cripple the said surveyor in carrying on' the business of his office, and thereby greatly inconvenience the public who do business through his office.
• “6. That the plain provisions of the statute that the board of supervisors should provide a fireproof vault for the use of the respondent and successors, to be under his care and control in an office at the 'county seat, was entirely ignored by the judgment of said court.”
We think the county surveyor and his counsel magnify the difficulties of the situation. The intention of the legislature in passing the amendment was to seek a place of safety for the field notes and records pertaining to the office of county surveyor, when they were not in use by him. There can be no doubt of the right of the legislature to enact legislation of this character, nor of the board of supervisors to make the provision required by the statute. The order of the circuit judge is so broad as not to interfere with the custody of the records and field notes during the hours when they are by law required to be kept open to the inspection of the public, nor when they are needed by the county surveyor in the pursuit of his official ■duties.
We decline to interfere with the action of the circuit judge.
. Carpenter, C. J., and McAlvay, Grant, and Blair, JJ., concurred. | [
-17,
-18,
42,
-32,
35,
72,
53,
40,
35,
66,
-2,
6,
37,
2,
-8,
-24,
-5,
38,
-21,
30,
-17,
16,
0,
-12,
9,
5,
6,
23,
-15,
-14,
-25,
30,
-94,
-15,
51,
-28,
4,
31,
48,
0,
-14,
10,
48,
3,
-18,
-56,
28,
33,
-15,
-68,
7,
21,
-2,
-16,
-13,
15,
-9,
-25,
3,
-11,
-19,
23,
3,
62,
17,
38,
-54,
-19,
37,
-51,
-13,
23,
-28,
-33,
35,
1,
25,
40,
-38,
21,
5,
-17,
-13,
28,
3,
-16,
-30,
-46,
18,
-38,
-21,
-2,
-21,
9,
57,
-22,
-5,
-1,
44,
37,
-13,
53,
-24,
33,
21,
6,
-59,
-18,
-3,
-67,
-2,
-50,
-18,
-45,
9,
19,
17,
51,
74,
-40,
-31,
0,
-7,
-42,
-60,
-30,
29,
-17,
0,
-26,
-28,
-26,
-5,
-42,
-15,
-8,
-6,
-56,
-5,
-56,
-22,
5,
71,
-24,
-12,
21,
-34,
-43,
-20,
28,
-22,
13,
23,
-6,
15,
-11,
-33,
-31,
-3,
10,
-52,
15,
0,
-36,
-42,
55,
41,
-25,
-27,
17,
14,
45,
-9,
47,
-2,
-67,
18,
11,
-14,
41,
60,
-47,
11,
-7,
-64,
11,
-50,
41,
0,
16,
6,
6,
29,
-63,
-16,
-16,
-15,
33,
-36,
-69,
-9,
1,
15,
32,
-38,
30,
-8,
27,
12,
21,
13,
-10,
-78,
-9,
11,
19,
11,
-16,
9,
-21,
-15,
-6,
28,
21,
25,
56,
9,
2,
-34,
-11,
41,
44,
3,
-23,
-16,
55,
-6,
34,
20,
91,
20,
-20,
-72,
-6,
33,
22,
-9,
-50,
12,
17,
-26,
-6,
-79,
-19,
-19,
-49,
15,
42,
-57,
13,
14,
31,
32,
3,
-17,
23,
4,
15,
7,
-6,
15,
7,
27,
5,
-62,
1,
56,
-21,
-91,
-17,
18,
-61,
-20,
-4,
6,
-16,
-32,
-11,
-16,
-17,
-24,
16,
-34,
37,
-21,
23,
22,
-22,
48,
-24,
-41,
-5,
-65,
-49,
39,
-33,
-99,
-51,
-18,
-14,
55,
33,
-4,
2,
3,
-27,
51,
-10,
53,
41,
39,
18,
-4,
40,
-56,
61,
57,
27,
26,
30,
8,
-27,
13,
-15,
18,
43,
-30,
-5,
-4,
-39,
34,
-16,
21,
44,
-28,
-5,
-59,
5,
-44,
-25,
31,
67,
35,
43,
-10,
-19,
5,
20,
-17,
32,
23,
74,
32,
26,
-8,
-12,
-60,
-40,
73,
-36,
-9,
5,
30,
44,
-17,
3,
41,
-12,
-4,
9,
-31,
41,
-22,
31,
-5,
-28,
43,
-32,
-9,
-15,
-4,
-34,
-28,
17,
-26,
-5,
70,
22,
-31,
-16,
-12,
64,
-25,
27,
58,
48,
5,
-13,
46,
57,
36,
21,
-50,
-13,
23,
39,
49,
-25,
18,
-35,
25,
10,
-96,
-29,
-15,
-53,
-27,
39,
-16,
7,
-41,
0,
33,
29,
0,
-29,
-59,
20,
-4,
-63,
-48,
-22,
-18,
-16,
-25,
-25,
-4,
32,
45,
-13,
37,
83,
-71,
35,
-39,
24,
68,
-3,
-20,
-18,
-28,
20,
-11,
-5,
-35,
13,
-11,
-74,
-3,
29,
-50,
1,
-8,
-34,
10,
-61,
16,
-25,
-7,
-4,
18,
33,
5,
22,
-33,
-89,
-53,
28,
-42,
-36,
60,
-24,
-14,
30,
47,
41,
-9,
-17,
31,
25,
3,
19,
-6,
31,
-21,
16,
14,
44,
19,
36,
-1,
-36,
54,
3,
-15,
19,
8,
-44,
-45,
-5,
-18,
-9,
-15,
-27,
30,
68,
-13,
43,
27,
52,
-29,
2,
0,
6,
-8,
2,
4,
88,
-7,
-11,
39,
-58,
22,
58,
17,
15,
-56,
-21,
-80,
-39,
22,
-7,
-26,
-3,
-46,
25,
-1,
43,
19,
-11,
-26,
-38,
-7,
-56,
20,
44,
-16,
12,
5,
-18,
15,
-31,
42,
-24,
19,
12,
-17,
-22,
44,
50,
-4,
11,
17,
18,
16,
-19,
-33,
-6,
-13,
11,
-28,
27,
-82,
36,
-36,
-10,
-30,
72,
-29,
-36,
-18,
-12,
40,
49,
-7,
11,
17,
-29,
23,
-48,
-17,
-63,
-29,
28,
-28,
20,
40,
-34,
20,
3,
7,
-43,
41,
-16,
-6,
-5,
24,
57,
9,
26,
-22,
-15,
14,
21,
47,
-37,
37,
23,
18,
-30,
11,
24,
-7,
-30,
20,
2,
40,
-22,
26,
-12,
-15,
47,
-43,
0,
11,
-32,
-8,
-23,
70,
33,
49,
-24,
-12,
63,
11,
13,
-15,
-22,
107,
12,
12,
-8,
-51,
-19,
-16,
-56,
6,
26,
56,
-37,
32,
43,
-17,
14,
66,
-61,
17,
32,
-27,
45,
26,
45,
-29,
68,
-19,
-62,
-3,
34,
13,
-44,
6,
2,
25,
12,
-4,
-12,
-32,
-17,
-1,
-53,
-58,
19,
46,
-7,
-29,
-2,
-7,
2,
19,
-29,
9,
-43,
-39,
1,
-34,
35,
-2,
4,
-51,
-28,
0,
-11,
-63,
-27,
30,
-18,
20,
58,
22,
-36,
14,
-38,
1,
-36,
0,
24,
31,
23,
-100,
29,
6,
9,
13,
4,
-3,
-21,
9,
30,
3,
5,
26,
-12,
-19,
-5,
21,
-20,
17,
-3,
12,
-46,
50,
26,
-27,
-10,
-51,
-4,
-10,
-19,
19,
-21,
3,
-12,
13,
-34,
14,
-11,
-60,
-22,
62,
4,
-28,
-8,
-7,
-2,
10,
30,
-4,
-15,
-44,
15,
21,
-28,
-44,
23,
19,
8,
-35,
31,
-45,
52,
24,
3,
-11,
-45,
9,
-26,
-5,
44,
-22,
-38,
4,
0,
33,
-19,
-34,
11,
-5,
-34,
-21,
15,
48,
54,
-27,
-45,
35,
-102,
-19,
13,
-21,
15,
14,
-12,
-17,
-48,
-80,
-71,
-33,
31,
20,
-6,
-27,
-7,
4,
2,
24,
39,
55,
-17,
23,
29,
12,
-7,
15,
16,
17,
23,
-18,
-17,
-24,
13,
-7,
-12,
-24,
23,
-40,
11,
27,
-17,
-64,
21,
-9,
53,
-6,
-35,
-42,
-22,
13,
-30,
44,
8,
-40,
-20,
-69,
37,
27,
-19,
30,
7,
-54,
-53,
-17,
-10,
-19,
59,
19,
6,
22,
-14,
86,
34,
-6,
23,
-68,
-30,
-40,
-81,
9,
-61,
-61,
23,
39,
-28,
-11,
-13,
-10,
25,
-8,
38,
-2,
35,
4,
5,
8,
14,
13,
38,
8,
-11,
26,
-24,
-4,
-32,
-7,
47,
75,
7,
-30,
51,
-3,
-19,
-4,
31,
42,
42,
13,
91,
-69,
-49,
13,
43,
-53,
0,
31,
2,
-53,
-67,
-8,
-17,
-33,
7,
47,
-23,
25,
27,
48,
22,
-2,
63,
33,
-29,
-43,
-27,
66,
3,
-15,
28,
-33,
2,
37,
7,
-7,
-20,
-15,
14,
3,
-45,
-47,
-14,
-63,
44,
29,
-19,
-83,
1,
43,
-11,
12,
-41,
-10,
0,
-3,
-7,
-1,
39,
25,
24,
12,
48,
-10,
2,
30,
-22,
-75,
4
] |
Ostrander, J.
(after stating the facts). The questions proper to be considered and determined arise upon the practice followed and upon the information and plea. Extended statements of facts, entirely outside of the record presented to this court, appear in the briefs, and are made the basis for much that is said by way of argument. As an example, a quotation from the brief for respondent is here given:
“The closing appeal in relator’s brief, though untrue in statement of facts, does at last get down to the real question here. That question is: Shall respondent be dissolved and be prevented from using the- mails in closing up its business, solely because the new illegal corporation wants the exclusive use of the name, Grand Rapids Sticky Fly Paper Company ? All other questions raised by relator are mere masks behind which the real question has always lurked. Dickinson et al. got their money for their stock, and then Dickinson and perhaps some of the others went into the same business, as they lawfully might. But they illegally assumed respondent’s name for their new company. ' When the post office refused to deliver to the new company mail that came addressed ‘Grand Rapids Sticky Fly Paper Company,’ and when, after a contest in the post office department, it adhered to that decision, then this suit was brought in the -name of the people on relation of the attorney general, not to test the right of the respondent to the exclusive use of its name, but on the pretense that respondent had violated the antitrust laws. And then, having got into court, this pretense was abandoned. (We do not say that the attorney general was at all a party to this conduct.) The case is here in control of the new illegal corporation. Its counsel have had the sole management of it.” '
In various ways the briefs afford the information that an animated contest was made upon the hearing of the motion for leave to file the information.' None of the matters then produced, unless it may be the information itself, are before this court. The statute provides:
“It shall be the duty of the attorney general, whenever he shall have good reason to believe that the same can be established by proof, to file such information in every case of public interest; and also, in every other case in which satisfactory security shall be given to indemnify the people of this State against all costs and expenses to be incurred thereby.” 3 Comp. Laws, § 9950.
It is assumed that the information was filed upon the authority of the last clause of the section of the statute quoted.
It is complained that judgment was rendered on the motion of relator, and that the demurrer of respondent to certain parts of the information' was not regularly brought on for hearing; that the motion for a judgment amounted to .abandonment by relator of all charges in which the public has an interest, and that the case should be treated by this court, for this reason, as one not of pub-' lie interest, and as one now resting upon charges which would not have warranted the interposition of the attorney general nor have secured permission to file the information. These objections relator answers by saying that the plea of respondent admits facts which may be, and by the court were, treated as conclusive evidence of acts of surrender, misuser, and nonuser; that, if this court is of opinion that the admitted facts sustain a forfeiture, the judgment of the trial court must be affirmed, even though this court would not, as a court of original jurisdiction, have declared the forfeiture. Precisely what questions are open to review on error in proceedings of this nature, where the attorney general and the court "below have both exercised discretion in permitting the institution of the proceeding, we need not determine. We are of opinion that in this case the plea confesses acts, of respondent which are by statute made ground for its dissolution. It is charged that it became, and for a period of more than one year remained, insolvent. The fact is. admitted by the plea. It is provided by the statute (3 Comp. Laws, § 9762) that as a consequence “it shall be deemed to have surrendered the rights, privileges and franchises granted by any act of incorporation, or acquired under the laws of this State, and shall be adjudged to be dissolved.” There is statute sanction for the filing of an information against a corporation “whenever it shall have done or omitted any acts which amount to a surrender of its corporate rights, privileges and franchises.” 3 Comp.- Laws, § 9950. And 3 Comp. Laws, § 9961, states the judgment which shall, in such a case, be rendered. See People, ex rel. Attorney General, v. Bank of Pontiac, 12 Mich. 527.
The motion for judgment may be treated as a demurrer to the plea. The facts admitted by the plea amount, in law, to a surrender by respondent of its corporate privileges, generally, and it cannot be held that it was error on the part of the trial court to so determine. People, ex rel. Crawford, v. Molitor, 23 Mich. 341. The judgment is, therefore, affirmed.
It is proper to add, in view of the averments in the information and the plea, concerning a corporation organized in November, 1904, which assumed the name of respondent, that the. judgment in this proceeding does not determine or establish the rights or privileges of that corporation. - Whether the provisions of 3 Comp. Laws, § 8534, do or do not insure to a corporation, dissolved by order of court, the use of its name in closing its affairs, is' a question which does not arise upon this record.
Blair, Montgomery, Hooker, and Moore, JJ., concurred. | [
54,
-27,
65,
15,
35,
0,
-11,
31,
-21,
13,
28,
3,
-14,
50,
-6,
13,
32,
20,
40,
-27,
-10,
8,
6,
-3,
2,
-85,
18,
-9,
23,
-10,
1,
22,
-12,
-8,
-7,
-10,
-9,
0,
12,
2,
-26,
-4,
82,
-75,
-30,
45,
17,
38,
-13,
-42,
80,
71,
-48,
13,
52,
-4,
15,
24,
46,
7,
-28,
-15,
-3,
-34,
5,
24,
-3,
-4,
7,
4,
-23,
-32,
0,
-13,
11,
-55,
4,
37,
25,
38,
-25,
44,
19,
-53,
-50,
40,
16,
-34,
26,
-19,
11,
-66,
-30,
-44,
-3,
-4,
7,
11,
-26,
41,
35,
16,
13,
8,
-33,
56,
0,
-28,
0,
-3,
-26,
45,
-21,
-33,
-37,
-37,
16,
2,
-28,
-47,
-44,
10,
5,
43,
11,
5,
-36,
7,
-61,
22,
6,
11,
-2,
38,
44,
37,
15,
-17,
-12,
-16,
-4,
34,
10,
28,
-16,
-2,
34,
14,
-16,
13,
2,
-19,
-11,
9,
-33,
-28,
9,
-60,
47,
-41,
61,
49,
-6,
1,
-11,
41,
-19,
-2,
-22,
-9,
1,
33,
2,
34,
-10,
-18,
-37,
-9,
3,
15,
0,
26,
-28,
17,
0,
-15,
6,
18,
9,
-11,
20,
-27,
16,
36,
3,
-14,
-41,
69,
31,
-32,
-7,
8,
-26,
25,
8,
20,
-61,
-23,
-8,
18,
11,
21,
-6,
-42,
-6,
-71,
-64,
-44,
20,
11,
-16,
12,
-23,
32,
-17,
-18,
19,
-1,
-42,
22,
-35,
27,
-25,
23,
-20,
-23,
19,
-29,
46,
-7,
11,
11,
-3,
-13,
8,
0,
22,
-25,
-8,
17,
10,
0,
25,
51,
-59,
-5,
-20,
-17,
2,
-53,
42,
12,
-24,
31,
-23,
-33,
-20,
30,
-79,
-5,
-7,
2,
-6,
-80,
-26,
-22,
-20,
-29,
15,
-23,
-4,
31,
5,
-26,
-76,
49,
-14,
36,
-23,
17,
59,
43,
-35,
-16,
50,
22,
10,
19,
-15,
-8,
11,
-19,
45,
-2,
-19,
14,
0,
6,
-64,
-25,
14,
-6,
-2,
-10,
1,
-8,
19,
16,
70,
-25,
-4,
59,
15,
0,
-13,
-17,
40,
-48,
51,
-25,
-41,
13,
0,
4,
18,
13,
13,
-57,
0,
10,
6,
-38,
-62,
-32,
21,
48,
0,
-9,
6,
-38,
44,
37,
-30,
25,
35,
-51,
-41,
3,
-53,
-40,
-12,
32,
0,
-33,
-7,
34,
-10,
14,
-4,
31,
-57,
-65,
0,
-13,
21,
-43,
-28,
-8,
-6,
-12,
-58,
-21,
35,
-15,
14,
45,
-12,
-14,
14,
-19,
12,
-16,
-16,
20,
-77,
-18,
-6,
12,
41,
1,
-13,
44,
9,
12,
-22,
-7,
16,
-20,
-31,
12,
4,
46,
0,
21,
-31,
-12,
-42,
-10,
49,
-10,
-3,
-19,
-21,
-21,
29,
-3,
-9,
17,
-40,
-12,
-4,
9,
-21,
-41,
-51,
31,
-7,
28,
-23,
2,
-52,
10,
-54,
31,
-20,
-4,
-15,
0,
28,
-27,
-32,
44,
11,
-14,
-2,
29,
15,
-8,
49,
30,
35,
-12,
27,
-43,
-6,
-24,
27,
-24,
29,
23,
-18,
-4,
25,
26,
-30,
15,
9,
38,
-31,
-4,
-40,
-7,
19,
-39,
-33,
42,
-11,
-8,
44,
16,
-7,
37,
-16,
1,
-86,
13,
-5,
3,
24,
39,
-6,
-9,
4,
-4,
37,
37,
1,
-5,
42,
16,
11,
13,
31,
72,
16,
44,
19,
4,
-50,
-1,
-13,
-42,
-10,
-22,
-7,
6,
24,
6,
-11,
-19,
30,
18,
23,
-86,
21,
52,
21,
-49,
7,
-8,
-24,
20,
-1,
11,
-35,
-23,
14,
-14,
0,
-35,
-74,
16,
-9,
39,
0,
18,
-19,
-70,
-15,
-16,
-33,
4,
0,
6,
35,
-63,
-27,
-8,
12,
16,
29,
-40,
34,
64,
-30,
20,
63,
-18,
6,
-28,
4,
-6,
-18,
-52,
-46,
-34,
15,
-22,
53,
-24,
41,
5,
-17,
-45,
-4,
-33,
10,
-24,
20,
-5,
-17,
49,
-40,
-28,
-16,
-17,
4,
30,
7,
-15,
-12,
0,
-9,
-19,
-7,
8,
-5,
-11,
27,
39,
40,
16,
-24,
7,
-7,
-19,
13,
33,
14,
29,
-40,
-41,
-27,
17,
-7,
-24,
2,
24,
-16,
-49,
19,
2,
-5,
-28,
5,
-57,
12,
45,
36,
36,
17,
12,
57,
-59,
15,
-7,
-42,
50,
-2,
-28,
-30,
-14,
24,
-10,
18,
6,
8,
8,
14,
-32,
30,
-12,
-36,
24,
64,
-40,
18,
-62,
27,
74,
35,
-2,
3,
-29,
20,
68,
16,
-33,
-2,
9,
17,
-26,
-21,
-3,
-5,
3,
4,
-2,
39,
-36,
17,
-16,
-25,
3,
-29,
-28,
20,
4,
50,
72,
34,
19,
1,
-16,
-72,
6,
-6,
21,
-35,
0,
-24,
-7,
-16,
-29,
-4,
35,
21,
-17,
6,
-15,
0,
-27,
13,
-19,
-25,
45,
26,
-73,
3,
18,
-12,
-9,
40,
5,
0,
61,
46,
-14,
8,
-1,
48,
0,
42,
0,
2,
37,
-20,
-27,
-20,
-36,
8,
-35,
-62,
-20,
-57,
6,
-34,
-25,
1,
-28,
-23,
-17,
12,
-8,
-19,
79,
55,
-34,
72,
11,
35,
-13,
-39,
32,
1,
-51,
-1,
17,
12,
-19,
27,
-21,
25,
-25,
-17,
30,
7,
29,
-10,
-9,
12,
5,
-10,
6,
-19,
32,
-19,
27,
64,
-22,
-23,
-39,
0,
-28,
-9,
-21,
-27,
6,
-38,
-35,
-45,
2,
69,
-14,
-25,
7,
5,
1,
49,
16,
41,
-17,
-29,
27,
-28,
42,
41,
19,
-8,
-40,
53,
-30,
6,
0,
-2,
17,
4,
10,
-21,
-78,
-13,
4,
21,
35,
9,
-13,
-15,
57,
25,
57,
28,
32,
3,
29,
20,
-37,
-44,
0,
35,
-45,
43,
18,
29,
-21,
16,
-36,
-69,
-2,
-16,
-6,
18,
8,
22,
6,
-41,
-27,
44,
-36,
-4,
-1,
30,
8,
6,
19,
52,
-18,
49,
-43,
9,
39,
-43,
1,
3,
12,
15,
22,
-6,
-23,
-9,
43,
17,
-15,
55,
-25,
-13,
-21,
44,
13,
-19,
-13,
-5,
-10,
7,
12,
-22,
15,
16,
34,
-10,
61,
7,
-33,
-26,
19,
43,
-36,
-73,
20,
11,
20,
-29,
0,
-10,
33,
-30,
-38,
-17,
-9,
3,
-28,
-28,
23,
0,
5,
-7,
-18,
19,
3,
-60,
10,
4,
15,
-16,
38,
-31,
28,
13,
15,
3,
-15,
-25,
9,
-2,
-2,
-41,
7,
36,
-67,
11,
28,
17,
-19,
14,
8,
-34,
-3,
2,
53,
21,
-21,
3,
-16,
2,
-15,
-19,
-38,
-31,
21,
6,
-73,
-3,
-23,
-1,
-8,
5,
-49,
-19,
5,
-3,
13,
-30,
-49,
27,
11,
1,
1,
4,
15,
-20,
4,
-42,
22,
-24,
1
] |
Moore, J.
August Bender had a policy of insurance in complainant company. He died as a result of a shot from a revolver. The insurance company declined to pay the insurance, claiming it was obtained by means of false statements made in the application, and also because Mr. Bender committed suicide, which avoided the policy. Suit was commenced upon the law side of the court to recover the amount claimed to be due under the policy. The complainant then filed the bill of complaint in this case to restrain the action at law and tb cancel the policy. In addition to filing an answer to the bill of complaint, the defendant filed a cross-bill, in which it claimed the policy of insurance was valid, that August Bender died as the result of an accidental shooting, and asked that the insurance company.be required to answer the cross-bill, that a subpoena might issue to it, and that a decree might be entered against it for the full amount of the policy. To this cross-bill the insurance company interposed an answer. The defendant filed a replication, and later demanded “that a jury be impaneled to try the issues of fact involved in the above-entitled cause in accordance with section 462, 1 Comp. Laws of 1897.” A jury was impaneled and testimony taken, which has resulted in a printed record of nearly 700 pages. The jury found that August Bender committed suicide. The circuit judge who heard the case expressed himself as satisfied that the jury reached a correct result upon the question of suicide, and entered a decree in favor of complainant. From a decree in favor of complainant, the case is brought here by appeal. .
The first question involved is whether the court in chancery should entertain a bill of complaint of this character after the suit at law was begun. It is the claim of the solicitors that it is a well-settled rule of law that a court of equity will not usually enjoin an action at law on grounds which may be urged as a defense to such action, and that this was such a case. To sustain this claim of counsel it would be necessary to overrule John Hancock Mut. Life-Ins. Co. v. Dick, 114 Mich. 337 (43 L. R. A. 566), and Mactavish v. Kent Circuit Judge, 122 Mich. 242. Counsel ask us to do this. In the opinion in the last-named case, it was said of the opinion in the former case that it was carefully considered, and we are still of that opinion and are not inclined to overrule it. See, also, the opinions in Fred Macey Co. v. Macey, 143 Mich. 138.
We do not wish to be understood as holding that a circuit judge is imperatively required to interfere by in june tion to restrain proceedings at law in every case where the equity jurisdiction is invoked. The authority to do so exists, but whether a preliminary injunction should issue depends upon the circumstances of each case and rests in the legal discretion of the circuit judge.
“Where the existence of a concurrent jurisdiction is recognized, whether it will be exercised or declined rests largely in the discretion of the court; considerations as to the adequacy of the legal remedy controlling the exercise of such discretion.” 10 Cyc. p. 36.
We now come to the other questions, but we think a conclusion as to one will make a consideration of the others unnecessary. Did August Bender commit suicide? The jury answered the question affirmatively. The circuit judge thought they answered it correctly. It would profit no one for us to select from the long record the testimony tending to show suicide, and that supporting the theory of an accidental shooting. We shall content ourselves by saying that a careful study of this record satisfies us that the jury and the circuit judge were right in their answers to the question.
The decree is affirmed, with costs.
Blair, Montgomery, Ostrander, and Hooker, JJ., concurred. | [
0,
-26,
7,
35,
9,
-19,
57,
-65,
36,
15,
28,
-5,
5,
-2,
21,
-8,
26,
4,
-18,
-9,
-31,
0,
-19,
0,
-20,
-11,
5,
-11,
-51,
-11,
47,
51,
-63,
22,
19,
-9,
-3,
-39,
8,
25,
11,
-53,
65,
-17,
19,
-9,
19,
-1,
41,
27,
28,
-8,
-9,
10,
-59,
-73,
42,
43,
6,
-6,
-37,
-47,
1,
-57,
8,
0,
-19,
33,
-12,
-17,
-28,
40,
18,
41,
-9,
-27,
-24,
-56,
-2,
-29,
-28,
-15,
14,
-25,
-30,
13,
8,
8,
11,
7,
-68,
39,
-30,
-79,
23,
2,
71,
27,
12,
23,
79,
-8,
-88,
-31,
15,
33,
-8,
19,
-15,
-9,
30,
67,
-1,
2,
-2,
-20,
5,
44,
-13,
-39,
-32,
43,
50,
-9,
1,
35,
22,
-11,
-15,
53,
-19,
1,
15,
1,
-12,
-10,
35,
-27,
-30,
-2,
-23,
16,
20,
-39,
-58,
85,
26,
-9,
58,
-38,
-6,
42,
1,
8,
-13,
-36,
-20,
-59,
34,
-49,
52,
-36,
11,
15,
0,
15,
-25,
1,
-4,
11,
-25,
15,
34,
51,
13,
36,
44,
-46,
-29,
8,
7,
4,
-25,
-10,
44,
-18,
48,
-29,
39,
-13,
57,
-33,
-49,
9,
10,
-15,
35,
15,
74,
8,
34,
-33,
16,
-3,
12,
17,
-2,
1,
-28,
-19,
73,
2,
-33,
-29,
-19,
28,
-44,
-34,
-10,
-25,
-64,
15,
-8,
14,
-7,
-111,
-14,
-14,
-46,
-55,
17,
-51,
16,
29,
6,
17,
0,
-41,
15,
17,
-24,
65,
11,
-39,
24,
-8,
-5,
24,
15,
-28,
5,
25,
29,
63,
-1,
17,
-9,
0,
-39,
-4,
7,
21,
-24,
-10,
37,
12,
0,
-52,
36,
-11,
49,
-32,
49,
-23,
39,
-48,
-22,
17,
33,
-17,
31,
33,
-8,
-22,
-58,
0,
-12,
36,
-26,
-43,
34,
-70,
18,
-30,
-14,
45,
17,
19,
6,
-21,
54,
10,
-8,
-42,
-26,
10,
-18,
-41,
-48,
-14,
-86,
23,
-11,
-11,
62,
-1,
4,
-7,
33,
8,
29,
17,
-37,
0,
-59,
-6,
11,
27,
9,
54,
-62,
17,
25,
0,
1,
-44,
4,
12,
-27,
12,
37,
-14,
-13,
-11,
-27,
47,
66,
42,
-12,
-25,
-39,
-21,
-61,
-6,
2,
11,
49,
-22,
-21,
19,
-15,
33,
-52,
15,
24,
-32,
-49,
-19,
13,
50,
20,
-30,
-35,
-71,
-20,
-13,
18,
65,
-23,
3,
11,
40,
-22,
-18,
0,
13,
-14,
-41,
15,
9,
-22,
-5,
31,
-36,
-19,
21,
-39,
-4,
-35,
51,
-13,
23,
-2,
-12,
-6,
35,
-26,
-12,
-34,
20,
-25,
-5,
33,
-28,
2,
61,
6,
-19,
42,
-3,
33,
-12,
23,
-23,
-26,
-28,
40,
13,
-22,
-5,
2,
15,
-13,
-26,
22,
-28,
-57,
-30,
41,
19,
-44,
24,
-20,
-12,
13,
-2,
-37,
34,
27,
-28,
0,
-11,
39,
29,
-20,
50,
-11,
-13,
-34,
-6,
46,
-21,
-62,
-27,
9,
14,
-16,
64,
27,
-57,
2,
-92,
-43,
-38,
24,
1,
32,
-8,
-34,
11,
-40,
-21,
33,
-5,
-43,
-81,
36,
11,
20,
-51,
8,
-31,
-68,
-22,
-24,
-16,
-33,
17,
-41,
-18,
-3,
20,
20,
-3,
7,
-22,
14,
-5,
4,
13,
-16,
-16,
-34,
21,
42,
30,
-35,
3,
-10,
-53,
6,
-40,
-18,
5,
-16,
-57,
-33,
3,
-14,
-38,
21,
10,
-28,
-99,
-7,
20,
-34,
-36,
-10,
-22,
5,
42,
31,
29,
1,
15,
-2,
49,
75,
-43,
9,
-50,
24,
9,
12,
3,
30,
-18,
-19,
-3,
2,
-32,
-16,
3,
-11,
0,
23,
-14,
38,
-4,
-22,
10,
17,
-26,
-71,
21,
-6,
3,
38,
33,
6,
-46,
9,
-18,
-28,
-16,
-22,
-1,
-51,
-4,
23,
25,
47,
4,
-15,
-13,
54,
-30,
25,
31,
-19,
-1,
-14,
4,
-6,
58,
-41,
-12,
27,
1,
32,
1,
18,
-24,
14,
27,
36,
-3,
12,
-12,
38,
17,
25,
25,
1,
-1,
-17,
23,
7,
50,
-2,
-12,
4,
-45,
-41,
16,
-10,
50,
-3,
38,
-27,
-27,
49,
-46,
-65,
62,
10,
8,
-3,
-27,
4,
14,
3,
31,
-14,
-34,
15,
26,
-17,
14,
-27,
-11,
-25,
31,
-6,
45,
59,
-38,
-13,
30,
46,
11,
20,
-20,
17,
-15,
-8,
38,
-18,
54,
-8,
-22,
30,
30,
2,
24,
0,
0,
24,
-46,
7,
-59,
-39,
-19,
-7,
40,
4,
20,
36,
-43,
4,
-14,
-36,
7,
-10,
-5,
0,
-17,
-13,
29,
1,
29,
6,
-8,
-4,
9,
38,
-57,
-2,
-54,
12,
-1,
44,
-14,
42,
20,
52,
42,
-12,
-19,
-20,
-15,
31,
6,
-35,
16,
10,
-16,
-15,
-55,
15,
21,
22,
29,
-40,
-1,
-102,
-28,
39,
11,
54,
-7,
22,
-31,
-23,
12,
17,
26,
-19,
-44,
34,
12,
49,
12,
-27,
21,
2,
6,
-10,
-17,
-1,
63,
18,
-60,
-10,
40,
33,
-44,
-46,
1,
28,
34,
-50,
11,
1,
22,
23,
-46,
-7,
19,
-5,
-29,
-11,
0,
-44,
14,
0,
-15,
1,
20,
5,
18,
29,
0,
-7,
14,
16,
12,
15,
-19,
-11,
20,
-9,
0,
-68,
-9,
-42,
-9,
0,
1,
-13,
42,
55,
-19,
-5,
-60,
-60,
-1,
10,
-19,
-5,
7,
-34,
-5,
25,
3,
42,
14,
-56,
-22,
-30,
24,
14,
71,
39,
10,
40,
-2,
-2,
25,
-38,
-65,
0,
-4,
-26,
1,
-7,
-15,
25,
27,
-3,
-32,
-8,
10,
62,
0,
-22,
-23,
-13,
-38,
-72,
-5,
-45,
9,
-31,
36,
0,
-78,
18,
7,
12,
-43,
2,
21,
-37,
15,
30,
-50,
-41,
56,
22,
39,
4,
-2,
0,
-51,
-3,
11,
29,
-20,
5,
-31,
45,
-39,
-32,
3,
0,
17,
-36,
10,
68,
24,
-1,
16,
-23,
92,
28,
37,
-27,
-8,
-19,
-2,
26,
25,
11,
-35,
45,
10,
-5,
23,
1,
-19,
23,
17,
1,
-37,
-32,
17,
-14,
19,
35,
-7,
-14,
-9,
-17,
-24,
28,
-22,
-29,
54,
-2,
-5,
33,
32,
7,
-23,
-5,
40,
-26,
0,
0,
-45,
-15,
-19,
21,
-34,
11,
16,
-3,
-7,
11,
-15,
33,
-18,
-15,
-6,
15,
-12,
-1,
-14,
-10,
20,
-17,
5,
-48,
75,
-34,
6,
-13,
16,
7,
55,
-8,
75,
2,
-7,
-28,
52,
-35,
-37,
-9,
35,
0,
65,
-42,
0,
-3,
-10,
22,
10,
7,
27,
38,
-9,
8,
10,
-12,
11,
-2,
-19,
-45,
58,
2,
11
] |
Graves, C. J.
A particular discussion of this case would be a waste of time. The citations made by defendant’s counsel cover every question and are conclusive. The court below erred in refusing to decree payment to defendant of the balance found to be his due.
The parties had carried on a joint enterprise in the nature of a partnership and complainant filed Iris bill for a mutual accounting according to the course and practice of the court. The defendant answered and submitted himself to the doctrine applicable to the class of cases in which he was impleaded. The parties were hence litigants under the head of jurisdiction where each is considered as an actor. After considerable evidence had been taken and all necessary preliminary information had been obtained and on the 3d of March, 1880, an interlocutory decretal order that the parties mutually account before a commissioner was regularly framed and entered by consent. It provided among other things that he should make all just allowances and report such balance as he should find to be due from either to the other. Both parties proceeded at much length under the order; but it finally appearing probable that the result would be adverse to the complainant he entered a common order purporting to dismiss the bill and frustrate the foreshadowed result. This was in September, 1880.
The defendant correctly assuming that the case being for a mutual accounting, a right had accrued to him, and especially after the consent order and the action taken under it, which could not be cut off by this summary expedient' of a common order, he accordingly disregarded the attempt, and went on with the reference; and on the 31st of December, afterwards, the commissioner made his report by which he found due to the defendant at that date the sum of $3750.56.
On the 18th of the succeeding January the complainant filed three exceptions to the report; the first being that the bill had been dismissed; but the other two were objections to matters of practice which had happened subsequent to the order for dismissing the bill. They were not legitimate objects of exceptions. In thus appearing, however, to except for irregularities claimed to have occurred after the order, the complainant seems to have wanted confidence in the efficacy of the order itself. If that was operative he could not be affected by irregularities afterwards. But this is not very important.
October 1, 1881, both parties appeared and were heard on the exceptions and the court made an order expressly overruling them and confirming the report. Whether by this practice the complainant might be held to have waived the order of dismissal is not material.
December 13, 1881, the cause was brought to final hearing and the court adjudged that there was due the defendant from complainant the said sum of $3750.56, with interest from December 31st, 1880, the date of the report. But this determination was followed by a declaration that the court doubted its authority to give affirmative relief to the defendant, and thereupon the bill was dismissed with costs from complainant to the defendant. The complainant acquiesced in the proceedings. But the defendant claiming that he ought to have a decree for the adjudged balance took an appeal.
It seems to have been thought by the circuit judge that a cross-bill was necessary to enable the court to order payment by complainant. In this the court labored under misapprehension. The case itself was a case of cross claims. The object of it was for each side to bring forward his demands and have them judicially liquidated and those on one side applied to compensate those on the other until a final balance should be obtained as due from defendant to complainant, or from complainant to defendant, no matter which, and for the court after ascertaining the true balance to proceed and close the controversy and do complete justice by ordering payment.
The decree must be modified by striking out so much thereof as refuses to grant relief to the defendant and orders a dismissal of the bill; and by inserting the relief which ought to have been given as herein explained, and the defendant will recover his costs of this court.
Campbell and Cooley, JJ. concurred.
Afterwards, at the October term, 1882, complainant moved for a re-hearing. Motion submitted October 3. Denied October 11.
Taggart for the motion.
Uhl against.
Per Curiam.
On full consideration we are satisfied that no ground exists for any revision of the view heretofore taken of this case. The parties construed their arrangement and relation when they entered into the consent order, and the authorities are full to show that they did not materially err in doing so.
The motion for re-hearing is denied with costs. | [
-17,
-22,
4,
-24,
5,
-18,
27,
-43,
5,
79,
-4,
49,
14,
-3,
-12,
-13,
-13,
-23,
12,
10,
-2,
-36,
-14,
-2,
-17,
33,
-11,
11,
-6,
34,
13,
-5,
-19,
35,
5,
27,
6,
18,
32,
-15,
29,
13,
-4,
-23,
5,
25,
0,
-14,
21,
-6,
25,
-26,
0,
22,
-42,
-28,
-5,
2,
-8,
-49,
2,
-37,
1,
-19,
-15,
-21,
-44,
24,
3,
-8,
-38,
6,
45,
0,
-4,
-35,
-11,
-57,
-1,
-28,
0,
-9,
17,
-11,
28,
30,
-26,
23,
-50,
58,
22,
8,
-3,
17,
17,
22,
47,
16,
-22,
43,
26,
-25,
-21,
25,
0,
19,
-30,
15,
-18,
10,
18,
-9,
15,
-31,
20,
-6,
-63,
0,
-58,
-30,
-16,
59,
57,
40,
-7,
-63,
-11,
-52,
-39,
12,
-21,
-10,
-38,
-7,
-43,
-33,
53,
3,
-27,
15,
0,
-29,
13,
-7,
8,
15,
-11,
8,
-24,
-45,
-16,
-2,
28,
25,
38,
-67,
-17,
-61,
55,
-32,
83,
16,
21,
-34,
23,
9,
-30,
-29,
8,
-25,
73,
53,
-21,
15,
8,
-29,
-20,
-62,
9,
-28,
34,
26,
0,
-27,
32,
0,
1,
0,
-8,
-44,
6,
-21,
-8,
2,
52,
-29,
4,
34,
76,
-14,
4,
8,
-16,
29,
-22,
28,
21,
10,
-45,
29,
-2,
-38,
-34,
5,
-46,
22,
-39,
-31,
-49,
-30,
-36,
34,
-19,
-32,
-43,
-49,
-1,
14,
-13,
14,
-31,
32,
-30,
1,
-20,
-32,
27,
-17,
4,
-14,
-33,
9,
-14,
-40,
20,
19,
1,
19,
-4,
4,
-7,
21,
28,
8,
-27,
-26,
-7,
-7,
21,
-20,
-25,
22,
4,
12,
11,
-24,
19,
-8,
20,
7,
-15,
4,
7,
47,
2,
-43,
-32,
2,
-17,
-25,
11,
1,
-25,
8,
7,
-19,
-15,
54,
-7,
31,
8,
-12,
-7,
21,
71,
71,
34,
11,
-6,
-16,
-11,
-54,
52,
-40,
26,
10,
-13,
29,
-44,
-65,
-31,
-19,
-22,
-21,
23,
24,
-37,
-22,
58,
-38,
19,
-20,
21,
-18,
-24,
43,
25,
1,
10,
-23,
18,
33,
53,
-24,
-22,
-15,
-9,
24,
-7,
-28,
-3,
-2,
-74,
-53,
-4,
33,
11,
-68,
2,
22,
-42,
4,
-53,
70,
44,
74,
11,
-47,
-23,
17,
11,
-20,
-13,
-43,
0,
-5,
-13,
-40,
27,
61,
28,
19,
-36,
-62,
-5,
19,
-24,
33,
-9,
11,
1,
15,
-12,
5,
3,
31,
-29,
11,
14,
19,
-25,
97,
-3,
-12,
-50,
-27,
35,
-32,
-13,
23,
23,
8,
4,
1,
-1,
-29,
-7,
-26,
-26,
2,
14,
-4,
41,
-31,
31,
-26,
3,
-41,
46,
43,
59,
-14,
-26,
42,
32,
-46,
25,
-2,
19,
-23,
-24,
12,
26,
-27,
-2,
-18,
-2,
-3,
-21,
9,
-49,
4,
7,
16,
41,
4,
-7,
10,
54,
10,
42,
-30,
27,
25,
30,
32,
-20,
-7,
38,
-3,
39,
-1,
-34,
16,
22,
-27,
28,
-8,
19,
5,
-21,
-23,
55,
35,
-68,
-2,
11,
-2,
18,
15,
-3,
39,
-16,
-22,
-38,
34,
-6,
-24,
-31,
20,
-22,
-21,
-18,
-18,
-20,
21,
-28,
-27,
-48,
12,
-16,
51,
20,
12,
30,
24,
-8,
-20,
16,
60,
-50,
-18,
48,
25,
-12,
41,
29,
29,
5,
-9,
50,
10,
-66,
15,
8,
-10,
-22,
-26,
39,
5,
-27,
62,
3,
-21,
11,
-5,
-35,
16,
10,
-39,
-47,
53,
57,
30,
0,
12,
-6,
22,
11,
-7,
4,
-18,
56,
18,
-67,
14,
6,
22,
-9,
-23,
-14,
20,
-32,
-29,
10,
-8,
-10,
18,
26,
8,
5,
42,
-12,
31,
-28,
1,
-37,
-1,
-3,
-17,
-33,
-39,
5,
-30,
5,
42,
-9,
38,
15,
-2,
0,
-3,
9,
7,
-3,
-7,
0,
-34,
7,
47,
-15,
5,
-31,
-45,
-59,
-16,
-27,
45,
-13,
-23,
43,
11,
-11,
-4,
0,
27,
-30,
-28,
0,
-3,
34,
-3,
-38,
-8,
51,
10,
37,
58,
-18,
9,
-23,
-41,
0,
61,
-3,
31,
3,
30,
-12,
35,
23,
6,
21,
0,
3,
50,
8,
56,
38,
1,
26,
59,
23,
-15,
-20,
28,
22,
-2,
-39,
19,
15,
-51,
-7,
52,
42,
21,
-22,
34,
38,
-6,
-10,
-36,
56,
-56,
-5,
-54,
-41,
10,
-34,
-28,
4,
-9,
5,
-20,
-27,
-4,
-21,
24,
7,
25,
10,
-34,
-59,
-25,
-34,
-13,
0,
-30,
-7,
15,
12,
-45,
14,
35,
16,
-5,
-21,
49,
-20,
-1,
32,
-23,
0,
-23,
17,
-2,
-36,
-2,
-29,
-26,
44,
-35,
66,
-3,
-20,
26,
5,
-29,
36,
-24,
-16,
-31,
-5,
-20,
8,
-3,
-54,
-52,
-30,
7,
-13,
-2,
5,
24,
-12,
-24,
-18,
14,
-17,
15,
49,
37,
-49,
-20,
0,
25,
-28,
-3,
-6,
-59,
-3,
29,
-4,
-19,
-12,
10,
-34,
-7,
0,
-10,
2,
-19,
-3,
-34,
-10,
35,
-33,
-1,
-19,
14,
35,
5,
-15,
71,
1,
-66,
-4,
21,
-2,
26,
47,
-47,
33,
-22,
-8,
-29,
-40,
-41,
-1,
1,
25,
3,
5,
21,
13,
42,
-11,
23,
3,
-19,
-43,
-60,
-14,
2,
-6,
6,
-22,
-25,
17,
-30,
-50,
77,
23,
33,
8,
7,
-2,
28,
-15,
36,
46,
1,
-24,
22,
26,
-5,
23,
1,
-47,
-45,
-32,
-12,
-20,
40,
43,
6,
-9,
36,
-48,
26,
15,
6,
25,
-50,
-44,
-10,
-25,
-19,
-3,
44,
7,
-12,
8,
-3,
6,
6,
-11,
32,
5,
-57,
2,
24,
-31,
20,
-37,
45,
18,
-21,
-37,
16,
-52,
12,
-21,
32,
0,
-61,
25,
-61,
-30,
27,
-53,
-3,
3,
-11,
13,
-34,
6,
-31,
19,
31,
20,
33,
-15,
-13,
5,
22,
-10,
20,
-49,
59,
29,
-3,
-7,
-7,
0,
76,
61,
22,
25,
18,
-4,
2,
22,
27,
11,
-9,
53,
-8,
45,
36,
12,
36,
10,
-17,
-29,
-53,
-6,
-8,
-16,
19,
17,
-52,
-18,
19,
16,
-44,
-11,
8,
-6,
-4,
-24,
-11,
-2,
21,
-49,
7,
-65,
-28,
-15,
3,
-20,
-12,
5,
-9,
-8,
14,
22,
-25,
-40,
6,
13,
-28,
-26,
-8,
-8,
-13,
-26,
-63,
-4,
16,
-4,
8,
-28,
-2,
-58,
21,
-33,
21,
12,
-22,
32,
49,
-24,
27,
-1,
-23,
-5,
2,
69,
-3,
-15,
-25,
9,
-3,
24,
-43,
23,
96,
-10,
-47,
-6,
6,
3,
58,
-19,
35,
-32,
12,
-61,
-67,
24,
32,
6,
21
] |
Marston, J.
This was an action of ejectment. The plaintiff recovered judgment. The' case- comes here on writ of error.
The first three assignments of error are not, nor is either of them, well taken. It was competent to show who were the heirs of Lorenzo Thomas at any time after his decease even although the plaintiff may not have claimed title from them for years thereafter. The question decided m the case relied upon by counsel, in Campau v. Campau 37 Mich. 247, was very different, as there was no showing in that case as to who constituted the heirs, although the plaintiff claimed to have derived title from' one of the heirs without any showing as to how many there were. It was also competent for the purpose of identification to show that the deceased had at one time owned real estate in Cheboygan county, and also to ask whether deceased left any last will. This was not proving title to lands or the contents of any instrument; the questions were merely preliminary and proper. The same remarks apply to the fourth assignment of error.
The fifth assignment raises several questions, all relating to the proper acknowledgments, and certificates thereof, of certain conveyances through which plaintiff claimed _ title.
The defective execution of these instruments might affect the right to have them recorded in the Register of Deeds’ office, but would not necessarily affect the validity of the instrument as a conveyance of the land described therein as between the parties thereto. If not properly acknowledged, or, if executed in another state, if not properly certified, the instrument while so defective might not be admissible in evidence without proof of the signatures thereto. If, however, after the commencement of the action, or at any time before trial, the instrument was properly acknowledged and, where necessary, had the clerk’s certificate attached thereto, such instrument would be admissible in evidence on the trial and would be as effectual to pass the title as though perfected prior to the commencement of the action. Richards v. Pierce 44 Mich. 444; Brown v. McCormick 28 Mich. 215.
The remaining assignments relate to the assessment of «aid lands in the township of Grant and sale thereunder for delinquent taxes and a conveyance to the defendant, while in truth and fact the lands were in the township of Duncan, .where they were not assessed.
The supposition or belief of the parties, officers and inhabitants that these lands were in Grant township would not justify the taxation thereof therein, if in fact they were in another township. In such a case the supervisor in attempting to assess them would be acting without jurisdiction and his acts would be absolutely void. . It cannot be truly said that the owner would not be injured so long as his lands were not assessed in Duncan; this would not follow. The local taxes may not have been as heavy in Duncan as in Grant, and the supervisor in the former township might have made a very different valuation. But however this may be it is sufficient that the assessment was wholly without authority.
It is claimed however that acts Nos. 365 and 366 of the Session Laws of the Local Acts of 1879, pp. 168-9, cure the difficulty. It might well admit of some doubt whether a void act could be cured by the Legislature. An examination of these acts shows that the Legislature difi not attempt to legalize the act assessing this property in Grant. These acts may be given full force and effect in every respect and yet not touch or affect the present case.
The judgment must be affirmed with- costs.
Cooley and Campbell, JJ. concurred. | [
13,
39,
39,
-9,
-13,
-14,
41,
14,
37,
57,
-6,
19,
-8,
25,
-19,
-21,
8,
4,
-3,
-18,
-13,
-53,
-49,
28,
8,
-24,
43,
41,
-23,
-22,
-6,
8,
-28,
1,
3,
34,
22,
-15,
-1,
-8,
1,
8,
16,
-9,
-27,
19,
14,
1,
13,
2,
45,
-42,
-22,
17,
-15,
13,
-8,
-43,
43,
-45,
33,
-25,
13,
-28,
-32,
16,
13,
2,
-34,
-25,
-24,
25,
5,
-1,
-8,
-4,
-17,
-17,
-31,
5,
-7,
-23,
28,
-24,
12,
-38,
0,
-22,
7,
-36,
23,
2,
-1,
-13,
30,
23,
23,
13,
-17,
-30,
1,
39,
0,
16,
-28,
-9,
-6,
-10,
30,
-47,
36,
13,
8,
-16,
-47,
24,
3,
-7,
4,
-3,
47,
-29,
32,
-25,
-21,
15,
-38,
24,
-20,
67,
19,
-28,
-61,
11,
-34,
-17,
-26,
-17,
18,
-48,
2,
-56,
-15,
-46,
10,
-7,
0,
-12,
16,
-41,
-30,
70,
-12,
12,
-3,
23,
50,
-25,
20,
-40,
36,
-6,
9,
-49,
0,
8,
32,
1,
2,
-12,
13,
-12,
19,
-20,
49,
54,
-3,
-33,
-9,
18,
19,
56,
21,
-26,
2,
-23,
10,
-7,
-3,
-41,
-13,
41,
18,
12,
-45,
55,
5,
53,
-12,
-41,
-25,
-49,
8,
-9,
-35,
-18,
26,
-42,
-27,
44,
1,
-16,
-14,
-8,
-11,
-18,
42,
-38,
-13,
19,
23,
23,
-22,
22,
11,
-56,
-3,
3,
-57,
-19,
13,
-2,
25,
-2,
6,
-40,
-5,
-16,
-44,
-2,
39,
28,
-26,
17,
-5,
34,
44,
-30,
-33,
46,
-43,
-2,
-47,
-22,
-8,
-16,
43,
21,
-49,
-19,
-4,
0,
-18,
-2,
-46,
-10,
20,
13,
-24,
-7,
-11,
-5,
31,
-6,
-16,
-9,
11,
-15,
14,
-10,
14,
-14,
-3,
40,
-35,
26,
-22,
18,
-9,
36,
-12,
-56,
-35,
2,
-16,
50,
48,
-34,
51,
-29,
-43,
12,
28,
5,
26,
-11,
-13,
2,
-18,
37,
32,
43,
-16,
42,
51,
4,
-22,
-53,
7,
0,
0,
-15,
18,
-55,
-24,
15,
-4,
-30,
-6,
24,
8,
6,
38,
16,
11,
-19,
26,
-24,
-38,
-19,
46,
-11,
-17,
-17,
30,
7,
-8,
-61,
-21,
3,
-1,
15,
10,
49,
14,
-22,
27,
-23,
-33,
42,
44,
16,
1,
-3,
23,
12,
-47,
-27,
43,
17,
-1,
31,
-10,
1,
-18,
29,
1,
-38,
-5,
45,
-48,
4,
-16,
7,
30,
-14,
-9,
-24,
-12,
29,
-34,
-15,
-5,
10,
-42,
-5,
-16,
42,
-40,
8,
0,
49,
19,
4,
-66,
-16,
-28,
4,
6,
23,
4,
-15,
57,
-5,
9,
12,
42,
0,
91,
-10,
16,
22,
-2,
-32,
-10,
-15,
16,
33,
-7,
-8,
16,
34,
40,
-6,
51,
9,
-22,
4,
-24,
1,
-8,
3,
-38,
29,
-28,
5,
-30,
20,
20,
-4,
-5,
4,
-22,
-3,
15,
47,
46,
-38,
-10,
-37,
9,
-52,
11,
0,
18,
-29,
-25,
-30,
30,
13,
-33,
0,
-45,
1,
-26,
8,
-8,
-23,
1,
1,
30,
29,
-21,
-25,
-49,
-7,
-30,
13,
-30,
-32,
-9,
-2,
15,
6,
-7,
-34,
-56,
19,
14,
26,
26,
32,
11,
13,
-34,
16,
-12,
-42,
-27,
49,
-45,
6,
3,
7,
-26,
17,
29,
-40,
8,
39,
29,
-6,
-51,
-17,
15,
23,
23,
-4,
7,
-6,
61,
23,
4,
-9,
-32,
10,
18,
10,
-24,
-40,
1,
47,
39,
22,
-36,
30,
-12,
-8,
-8,
1,
-28,
-20,
18,
-16,
-13,
-3,
23,
-32,
-2,
-39,
-19,
-24,
10,
0,
73,
-13,
-11,
-86,
11,
-58,
-5,
-46,
12,
-22,
-32,
-35,
14,
-37,
34,
-16,
-55,
-5,
29,
-23,
26,
19,
-1,
30,
43,
18,
0,
26,
-25,
-34,
-25,
-29,
-59,
19,
19,
3,
19,
-11,
-14,
14,
40,
14,
12,
-6,
-4,
-39,
20,
-1,
9,
15,
-13,
7,
10,
-11,
-7,
32,
35,
39,
-26,
-11,
-5,
5,
5,
-25,
-2,
-24,
11,
20,
6,
40,
-37,
30,
-6,
-6,
-7,
-16,
36,
-31,
-2,
-2,
5,
-16,
-41,
30,
12,
-18,
-28,
24,
-25,
-27,
6,
-1,
-5,
-2,
54,
2,
50,
-10,
25,
40,
13,
79,
31,
-14,
9,
17,
11,
-6,
-22,
-20,
-30,
16,
11,
20,
27,
1,
-8,
-9,
2,
28,
25,
-51,
-17,
30,
3,
10,
-20,
7,
12,
16,
-7,
-6,
3,
17,
33,
-6,
20,
28,
-14,
45,
-34,
5,
34,
7,
-37,
-34,
-32,
50,
22,
-7,
-22,
42,
38,
-27,
-28,
-3,
-16,
-24,
10,
-85,
7,
-9,
43,
-7,
2,
-14,
22,
6,
-6,
23,
42,
-8,
60,
-7,
-31,
27,
-62,
0,
-31,
23,
30,
-33,
31,
-1,
-4,
8,
39,
24,
29,
14,
-33,
1,
-8,
38,
-8,
-17,
20,
-13,
-32,
0,
-28,
-12,
-44,
-14,
4,
4,
0,
-23,
-20,
-25,
0,
59,
-4,
-16,
32,
-21,
22,
-24,
-15,
30,
-3,
-19,
-10,
-26,
0,
19,
43,
-21,
-9,
26,
-30,
-38,
9,
6,
-7,
20,
-2,
-15,
-12,
27,
0,
31,
-10,
10,
-10,
16,
29,
27,
-41,
-17,
-16,
-5,
2,
35,
-8,
-21,
-17,
-24,
39,
-8,
-40,
0,
43,
-3,
-30,
41,
14,
-27,
-18,
25,
45,
-7,
6,
-2,
-66,
9,
10,
-24,
0,
14,
0,
32,
4,
43,
15,
7,
-23,
-5,
21,
-14,
-29,
-15,
10,
-19,
35,
33,
15,
20,
-22,
-29,
13,
7,
40,
-14,
-3,
0,
-5,
0,
-20,
45,
30,
-17,
40,
0,
0,
7,
-4,
40,
-59,
25,
-16,
21,
37,
-54,
-43,
-9,
38,
0,
-10,
30,
-43,
-22,
2,
-64,
31,
-1,
24,
34,
-10,
-67,
-5,
3,
-15,
-30,
11,
2,
40,
-25,
-11,
-34,
-26,
-9,
1,
-34,
-28,
-22,
16,
15,
-19,
-2,
-13,
-72,
-5,
10,
-41,
56,
-23,
37,
-31,
-3,
49,
-4,
33,
-16,
2,
4,
20,
-17,
1,
20,
-24,
0,
-29,
-8,
-25,
22,
-36,
-7,
34,
9,
4,
28,
-48,
-27,
-64,
-17,
16,
20,
-9,
15,
15,
31,
-43,
-21,
0,
20,
-39,
-30,
9,
6,
6,
-28,
52,
33,
-26,
24,
3,
-32,
-47,
32,
18,
-14,
5,
-3,
-11,
-39,
12,
33,
26,
0,
-6,
11,
-9,
-3,
-28,
-18,
10,
1,
43,
10,
51,
-43,
47,
-3,
-22,
-37,
-39,
-3,
5,
21,
-29,
0,
-17,
-13,
-11,
33,
-1,
22,
9,
4
] |
Graves, C. J.
Nichols became special bail in a suit by Mrs. Wilkinson against one Dibble, and this action was .brought on the recognizance. The court heard it without a jury and decided in her favor. The only point now made is that the declaration in the original suit went beyond the affidavit on which bail was allowed and set up new grounds of action.
We are satisfied on examination of the record that the objection is not well founded. In matter of substance the declaration did not depart from the affidavit. No new cause of action was laid. The exposition in the declaration was in some respects fuller and the phraseology was unlike, but this was merely to apply the language and conform to the rules and usages of pleading. The scope of the action was not enlarged nor its identity changed.
There is no error and the judgment is affirmed with costs.
The other Justices concurred. | [
-6,
6,
28,
40,
-37,
10,
64,
-13,
15,
12,
31,
0,
30,
4,
-25,
-9,
-14,
5,
-1,
5,
-33,
-39,
-38,
12,
15,
-11,
-10,
15,
-15,
50,
50,
6,
-25,
5,
-14,
-5,
25,
-22,
-1,
9,
72,
9,
43,
-31,
-20,
-8,
31,
-12,
-17,
-17,
0,
-2,
22,
6,
-38,
-37,
0,
-20,
0,
-22,
11,
0,
-13,
-17,
-17,
-17,
-10,
-7,
-42,
4,
-8,
21,
-13,
-84,
-18,
-19,
-50,
-17,
-39,
-9,
2,
-16,
-10,
-2,
-19,
-8,
-64,
-49,
-29,
10,
28,
-19,
-31,
-73,
-9,
34,
22,
-47,
33,
62,
-19,
-11,
5,
48,
9,
37,
-28,
-26,
-13,
-19,
48,
36,
23,
-24,
0,
-28,
-15,
-2,
-54,
-70,
-17,
43,
73,
51,
-27,
-44,
16,
5,
47,
-3,
30,
18,
-10,
-10,
9,
-26,
36,
-15,
-27,
-21,
25,
-15,
0,
-15,
15,
11,
5,
26,
-60,
-43,
-16,
-25,
-29,
25,
26,
27,
20,
-16,
0,
-35,
32,
-35,
21,
22,
-18,
6,
-3,
26,
12,
11,
33,
51,
-29,
39,
-31,
50,
-31,
-30,
43,
21,
25,
39,
-2,
-9,
4,
1,
1,
36,
22,
39,
-36,
34,
-40,
-2,
6,
-7,
-22,
18,
28,
-20,
55,
24,
-6,
-38,
-30,
17,
0,
55,
41,
-11,
-34,
-39,
-3,
-32,
-34,
11,
24,
17,
-24,
4,
10,
18,
-20,
31,
-18,
1,
-6,
1,
-28,
-23,
-18,
22,
-12,
14,
-11,
13,
-39,
12,
12,
38,
-27,
-17,
7,
-41,
33,
-8,
10,
21,
9,
41,
23,
49,
32,
44,
-19,
-14,
5,
6,
-5,
10,
28,
64,
-51,
-3,
-48,
-15,
-18,
10,
-46,
45,
-43,
0,
11,
-21,
23,
-39,
18,
-12,
12,
23,
12,
10,
-9,
-21,
-38,
5,
27,
28,
29,
58,
1,
-41,
18,
-36,
48,
33,
32,
2,
5,
-25,
28,
3,
22,
30,
-11,
0,
-34,
9,
-82,
-51,
0,
13,
33,
4,
1,
19,
-6,
5,
-11,
-94,
-45,
26,
-16,
-19,
28,
0,
43,
-7,
17,
-2,
21,
-6,
32,
-34,
-2,
21,
-20,
-10,
5,
9,
54,
1,
-26,
-49,
-7,
30,
-51,
-39,
-11,
-7,
-14,
-12,
38,
34,
-16,
-5,
18,
-30,
0,
-37,
18,
26,
41,
27,
4,
24,
-3,
-51,
2,
-3,
47,
-48,
-12,
-31,
-20,
11,
59,
-3,
-56,
44,
-26,
-17,
6,
-11,
53,
55,
-50,
3,
25,
-17,
-36,
0,
21,
-15,
-43,
64,
31,
6,
3,
0,
-19,
38,
-3,
-21,
-76,
2,
-34,
-68,
-22,
58,
11,
8,
5,
-26,
21,
-11,
6,
-5,
-14,
10,
-2,
-28,
24,
-27,
-39,
-37,
49,
10,
-7,
-102,
-37,
-10,
2,
-4,
-17,
-10,
4,
28,
20,
0,
-82,
19,
-16,
1,
-3,
24,
-10,
8,
3,
-37,
54,
-23,
29,
-21,
-2,
-3,
6,
-30,
0,
-18,
13,
8,
-41,
-1,
-6,
5,
-38,
-65,
-24,
-17,
12,
-6,
27,
-28,
-18,
2,
-11,
30,
-34,
-50,
59,
13,
3,
-8,
-38,
31,
-17,
-16,
34,
-35,
13,
-4,
-33,
-30,
-12,
32,
3,
-46,
-23,
23,
22,
51,
-65,
-37,
-14,
34,
-12,
-7,
57,
36,
32,
-33,
9,
0,
1,
40,
37,
24,
-40,
41,
35,
14,
-26,
-3,
14,
53,
9,
-17,
20,
-15,
3,
30,
-8,
-33,
1,
8,
-26,
-18,
26,
-54,
-2,
6,
38,
13,
-36,
-2,
-6,
1,
-35,
28,
-16,
28,
-16,
17,
6,
-11,
2,
-2,
5,
-25,
6,
1,
-15,
-3,
-10,
7,
54,
-18,
36,
11,
10,
-30,
-20,
2,
-24,
-16,
32,
58,
1,
-50,
22,
-6,
-30,
-41,
-13,
16,
31,
10,
-15,
-24,
-22,
-7,
13,
-77,
-2,
-2,
0,
-3,
-41,
44,
-4,
7,
-18,
7,
-8,
9,
14,
0,
15,
0,
25,
-45,
-22,
9,
26,
15,
3,
18,
-7,
-48,
-9,
11,
-35,
4,
33,
-26,
-43,
37,
-21,
-26,
-4,
-36,
7,
57,
-9,
14,
15,
46,
-20,
16,
54,
0,
34,
34,
-14,
38,
-43,
-10,
13,
-7,
-7,
34,
-7,
-6,
35,
0,
34,
2,
20,
-36,
6,
24,
4,
10,
6,
28,
-10,
21,
-2,
-7,
45,
-25,
34,
79,
41,
-39,
68,
42,
45,
26,
35,
-5,
-10,
17,
31,
-36,
-30,
51,
11,
-29,
28,
5,
-24,
0,
48,
5,
16,
-11,
2,
-28,
33,
-51,
26,
-19,
7,
-51,
-6,
25,
28,
2,
-15,
-22,
7,
-10,
-25,
-18,
-22,
3,
-2,
2,
46,
29,
13,
17,
-13,
58,
25,
-9,
35,
-40,
18,
10,
-6,
13,
-21,
-2,
-12,
-16,
16,
-20,
-1,
19,
-29,
27,
-13,
23,
-2,
37,
12,
35,
66,
-27,
26,
-14,
22,
18,
16,
6,
-49,
-41,
-34,
-22,
-27,
-53,
-53,
38,
-25,
34,
31,
38,
-11,
-37,
0,
-41,
-71,
21,
44,
20,
1,
-1,
-42,
-15,
-31,
26,
42,
-32,
-2,
-15,
7,
48,
-14,
-27,
-6,
0,
10,
20,
14,
14,
-45,
37,
22,
1,
42,
17,
38,
48,
6,
40,
-5,
-49,
-13,
-41,
15,
-67,
-34,
42,
-49,
1,
-25,
-13,
-14,
41,
5,
41,
32,
30,
-13,
15,
-3,
-15,
28,
2,
0,
47,
-9,
20,
24,
-36,
6,
2,
0,
-5,
27,
8,
28,
0,
-4,
34,
-14,
3,
8,
43,
5,
17,
-39,
-60,
-20,
-34,
39,
25,
16,
-1,
-55,
-52,
18,
-4,
3,
-3,
38,
-3,
-33,
59,
-11,
1,
-49,
46,
0,
-19,
28,
7,
-31,
-6,
-3,
17,
-44,
3,
-6,
-97,
50,
30,
49,
-48,
-1,
17,
-10,
-19,
7,
-7,
11,
-5,
-32,
-52,
16,
12,
8,
-11,
71,
-9,
59,
-30,
0,
4,
-13,
6,
-17,
76,
16,
2,
9,
-34,
12,
14,
10,
-56,
-10,
4,
-10,
10,
-22,
25,
-17,
46,
-50,
-32,
2,
2,
15,
-34,
-41,
-32,
-5,
-5,
-62,
35,
-9,
-11,
-56,
15,
33,
-14,
-61,
4,
22,
42,
-52,
3,
-55,
6,
-27,
26,
-37,
41,
5,
-15,
-8,
-33,
-9,
-22,
7,
63,
13,
-17,
29,
-39,
-10,
-13,
12,
1,
-37,
-17,
18,
-49,
-109,
-3,
-33,
-27,
-37,
32,
-44,
-55,
28,
16,
-33,
6,
-27,
-25,
10,
-7,
-54,
-21,
-26,
25,
0,
46,
-33,
-65,
31,
67,
-26,
-55,
-17,
11,
18,
58,
0,
33,
-64,
8,
-36,
-30,
16,
-7,
39,
-10
] |
Coolet, J.
In this case two of the justices present think the judgment should be affirmed and the other does not. The case is complicated and it has been found impossible to reach any conclusion that will settle any controlling principle. Under these Circumstances written opinions could not be of service and are withheld.
The judgment will stand affirmed but without costs.
Maeston, J. concurred. | [
-18,
-4,
25,
-12,
5,
-8,
100,
17,
-41,
43,
26,
1,
43,
-29,
-37,
-61,
54,
-21,
-2,
-14,
-40,
-29,
-6,
21,
24,
14,
13,
56,
-40,
37,
9,
-36,
14,
15,
-53,
5,
-12,
5,
30,
-24,
53,
-3,
16,
-26,
-14,
-46,
-4,
-19,
-1,
-17,
-8,
12,
-17,
-31,
23,
27,
26,
46,
-25,
12,
13,
6,
57,
69,
-33,
-1,
-40,
-42,
-22,
-19,
-10,
6,
-30,
-74,
13,
-5,
2,
15,
-38,
-34,
68,
16,
4,
24,
26,
-30,
0,
-25,
-15,
-3,
-14,
-15,
-20,
-39,
-18,
87,
11,
-55,
-6,
20,
-24,
-4,
15,
41,
-13,
-8,
-64,
-32,
26,
-31,
-62,
37,
8,
-13,
-17,
-9,
-20,
26,
-59,
-61,
-13,
50,
-10,
65,
-71,
44,
-5,
3,
-23,
-22,
-7,
-27,
8,
34,
6,
-25,
39,
-27,
-14,
0,
34,
41,
28,
1,
9,
-22,
65,
-10,
-26,
20,
40,
22,
-32,
33,
-19,
-28,
-28,
-38,
47,
-14,
40,
63,
7,
0,
28,
16,
-1,
24,
22,
26,
14,
6,
-7,
12,
7,
52,
-42,
6,
13,
20,
-13,
45,
2,
1,
-19,
26,
27,
35,
4,
-19,
-86,
8,
0,
-3,
-12,
-28,
2,
23,
33,
-2,
-16,
51,
-32,
5,
-17,
-23,
11,
-45,
-53,
1,
-2,
46,
-47,
-47,
-16,
-12,
-27,
-12,
-54,
-63,
28,
53,
-56,
-37,
-38,
-1,
-15,
49,
-19,
-54,
-36,
43,
8,
69,
22,
-2,
-10,
26,
18,
-13,
-18,
9,
-4,
-9,
40,
32,
-15,
-23,
8,
-12,
39,
-2,
39,
-24,
-62,
-42,
25,
16,
2,
-12,
18,
58,
-48,
-7,
-34,
25,
50,
7,
43,
2,
-2,
13,
-48,
-2,
-41,
11,
-6,
9,
-26,
35,
-17,
66,
-39,
-5,
-37,
9,
40,
12,
39,
45,
55,
-26,
-24,
13,
26,
-9,
-15,
29,
-30,
-16,
-46,
-6,
10,
75,
59,
-5,
-74,
-9,
32,
-13,
-8,
20,
-12,
-27,
-22,
14,
-53,
-21,
36,
-43,
8,
30,
52,
-45,
30,
21,
63,
-60,
-4,
4,
0,
37,
-10,
-15,
-11,
16,
37,
25,
-11,
-4,
-13,
36,
-59,
-39,
27,
1,
-41,
-22,
-28,
19,
-37,
16,
27,
46,
-26,
11,
-22,
-21,
-15,
9,
28,
-10,
31,
29,
-13,
18,
51,
-15,
-11,
11,
38,
7,
-36,
-20,
-10,
-19,
50,
-10,
-46,
59,
-20,
-15,
5,
-22,
43,
25,
-65,
-5,
-5,
-50,
-56,
-58,
-35,
49,
-50,
0,
3,
-42,
46,
-2,
26,
10,
-25,
-29,
-39,
52,
4,
-44,
-3,
16,
-15,
2,
-8,
-14,
-2,
13,
34,
17,
9,
-54,
-21,
-21,
40,
9,
-31,
-29,
-12,
32,
-71,
-14,
-23,
-9,
-18,
-23,
-26,
-23,
3,
-18,
22,
-13,
-13,
26,
-38,
-4,
-11,
-27,
-12,
29,
18,
30,
2,
-6,
25,
3,
-14,
11,
-48,
-75,
11,
16,
-32,
-19,
-3,
-13,
5,
-5,
-2,
24,
50,
-86,
5,
44,
39,
12,
-8,
-10,
-50,
7,
-9,
56,
29,
32,
17,
-21,
-26,
28,
-25,
-24,
-22,
21,
8,
-12,
37,
-39,
-34,
-13,
28,
-5,
-61,
-2,
-8,
59,
25,
-76,
9,
-42,
-47,
-32,
12,
-5,
19,
30,
21,
-20,
-46,
2,
-12,
-8,
-34,
71,
64,
0,
-29,
-26,
0,
25,
-41,
-40,
5,
-42,
0,
39,
2,
24,
-6,
26,
50,
-54,
76,
-22,
-57,
12,
26,
-9,
-22,
-6,
-41,
-16,
-3,
62,
-36,
14,
30,
8,
-29,
-7,
43,
7,
6,
-21,
-45,
1,
-23,
11,
62,
8,
-11,
-7,
84,
-55,
78,
-39,
-3,
43,
-41,
-48,
-4,
17,
-39,
-13,
-38,
12,
-15,
3,
-37,
26,
-9,
-2,
3,
-70,
-36,
0,
-32,
-26,
-67,
-19,
-1,
-1,
12,
28,
-58,
72,
-17,
-22,
-29,
26,
-6,
-22,
-28,
-40,
22,
29,
-5,
8,
-24,
21,
-25,
-12,
19,
-35,
6,
8,
-21,
-14,
1,
-26,
22,
-10,
-41,
38,
-34,
-8,
22,
-23,
-69,
49,
-12,
-10,
-49,
-35,
1,
-30,
9,
-9,
32,
39,
-8,
54,
32,
36,
10,
17,
-5,
-7,
-9,
28,
-4,
-9,
-9,
1,
34,
-5,
-9,
19,
-66,
6,
-7,
77,
38,
-6,
22,
9,
42,
-15,
11,
15,
27,
3,
-28,
31,
-2,
-19,
-25,
-34,
-11,
16,
-25,
24,
43,
28,
22,
-3,
0,
-51,
8,
-31,
4,
34,
-21,
2,
20,
-67,
38,
-26,
-25,
-19,
9,
40,
-1,
49,
8,
-1,
-35,
6,
8,
-54,
-21,
-14,
8,
-13,
49,
-38,
13,
-73,
-33,
8,
19,
-10,
43,
16,
-3,
-20,
13,
-14,
26,
53,
-1,
-65,
7,
-18,
-6,
46,
10,
0,
-38,
27,
-7,
4,
-17,
-9,
39,
-23,
44,
-19,
-54,
-9,
34,
2,
20,
-22,
-1,
-55,
-12,
13,
11,
-1,
-19,
12,
-21,
14,
19,
-39,
-5,
13,
-24,
36,
4,
4,
39,
21,
-56,
-24,
-12,
75,
29,
-53,
-3,
-56,
-39,
61,
-5,
-29,
18,
20,
24,
20,
-49,
18,
-12,
-8,
-47,
7,
15,
-14,
4,
20,
-20,
42,
30,
-2,
18,
-28,
-10,
-10,
16,
16,
-7,
-2,
-13,
17,
28,
-20,
31,
23,
30,
25,
62,
-10,
11,
29,
57,
-53,
-30,
54,
-5,
6,
-26,
-25,
2,
-17,
1,
-12,
-9,
36,
36,
-9,
-27,
46,
-56,
13,
8,
-14,
4,
59,
14,
-64,
-37,
-22,
41,
38,
6,
42,
13,
-11,
56,
23,
-14,
7,
19,
9,
35,
19,
19,
-49,
-8,
5,
49,
-8,
5,
-6,
-17,
9,
-34,
18,
7,
-31,
26,
-38,
-18,
-23,
99,
-51,
-20,
5,
10,
30,
4,
-64,
17,
20,
-30,
-5,
5,
23,
42,
6,
37,
32,
64,
51,
5,
17,
-5,
-10,
47,
44,
-6,
-8,
-22,
-5,
51,
45,
1,
-12,
-6,
-3,
0,
2,
-34,
-33,
-2,
6,
41,
-21,
-3,
-14,
13,
10,
-3,
6,
30,
-67,
-6,
23,
3,
6,
-26,
8,
-16,
22,
-8,
-28,
-34,
-1,
13,
18,
-28,
-16,
-37,
18,
-51,
10,
45,
-17,
-8,
-12,
-13,
28,
-48,
11,
-5,
17,
19,
-52,
5,
-16,
14,
-34,
-37,
-27,
2,
26,
-54,
24,
-65,
2,
-32,
24,
-26,
-18,
-5,
-9,
-7,
-41,
-44,
40,
2,
52,
46,
-12,
40,
-10,
8,
14,
-17,
-2,
-19,
77,
7,
-19,
-22,
32,
0,
57,
31,
-2,
-19,
-12,
26,
94,
34,
19,
12,
3
] |
Campbell, J.
Plaintiff sued defendants for the wrongful conversion of testator’s property during his life-time. 'The court below held that the action died with the person, and no action survived.
By provisions now found in section 5828 of the Compiled "Laws, it is declared that, in addition to actions which survive by the common law, certain others, including replevin, ¡trover, actions for goods taken and carried away, and for damages to real or personal estate shall also survive. This provision is entirely free from ambiguity, and has been in ■force since 1838, (R. S. 1838, p. 428,) and the principle has been in force much longer. By the probate law of 1809' such actions for conversion of property were recognized as lying for and against personal representatives. 2 Terr. L. 28,
It is claimed however that in the Revision of 1838 a section was introduced giving actions expressly to and against" executors and administrators, and that the omission of this section while all the rest were retained indicates an intention, to abrogate the rule. We think on the other hand that it was manifestly dropped as a needless repetition of the same provision. And inasmuch as the very next section contains-a limitation, and therefore a recognition, of the right of action against executors and administrators, we should, on this construction, have an action preserved where the wrongdoer is dead, but none where he is living and the party injured is dead, which would be a strange anomaly. When, the law declares that a cause of action shall survive, it is-equivalent to saying an executor may sue upon it, and what is thus declared would not be strengthened by repetition.
Our previous decisions asserting the assignable quality of such actions were partly based on this statute, and in Final v. Backus 18 Mich. 218, this principle was made an express ground of adjudication. See also Brady v. Whitney 24 Mich. 154; Grant v. Smith 26 Mich. 201; Finn v. Corbitt 36 Mich. 318. And in Tome v. Dubois 6 Wall. 548, the-right of an assignee to bring trover was decided to rest on the ground that property could be sold which was in the-hands of wrong-doers, and that the form of action was incident to the wrong withholding.
It was further objected, — and this view seems to have-had some weight in the decision, — that the section in question was found in a chapter of the statutes confined to suits actually pending and abating by death of parties. Upon this it sufficient to say that when the Revised Statutes were-adopted there was no constitutional provision restricting legislation to matters set forth in the title to statutes, and it was not at all necessary to draw close lines. Yet even in this point of view it cannot be said that a provision of law referring to the course to be taken on survivorship of actions- may not be joined with one declaring what actions survive. But this need not bo dwelt on, because the language is too plain for misapprehension, taken by itself, and there is nothing in any part of the statutes requiring it to be limitedl
The judgment must bo reversed with costs and a new trial granted.
The other Justices concurred. | [
-5,
-10,
-9,
-2,
18,
6,
41,
-40,
20,
28,
8,
0,
41,
71,
-3,
-35,
16,
29,
-60,
27,
-12,
-14,
-9,
-39,
10,
-61,
53,
-2,
4,
4,
13,
-36,
-29,
21,
-15,
26,
-53,
-22,
33,
2,
-2,
-35,
39,
20,
-47,
22,
42,
-20,
12,
-14,
19,
-23,
-1,
0,
8,
-23,
48,
14,
-10,
8,
21,
-31,
-5,
-42,
-8,
0,
9,
21,
-14,
-22,
-8,
11,
19,
21,
40,
-15,
-2,
-1,
-11,
-28,
-16,
-35,
31,
-40,
-14,
22,
-4,
9,
-60,
-14,
-22,
3,
-22,
-10,
-43,
50,
30,
23,
-8,
8,
38,
11,
-70,
14,
-9,
6,
-54,
-24,
-20,
-1,
35,
12,
31,
-40,
33,
-18,
-34,
-6,
-30,
-21,
7,
-25,
24,
-18,
22,
30,
-3,
25,
14,
23,
19,
41,
-27,
-15,
-23,
14,
-4,
-12,
-25,
-84,
-38,
-11,
9,
-56,
37,
0,
9,
10,
-48,
-70,
3,
49,
-17,
19,
-5,
-28,
4,
-11,
19,
-28,
58,
-43,
-20,
-9,
-5,
20,
36,
-44,
-51,
16,
13,
12,
-37,
12,
38,
46,
-2,
-28,
-36,
6,
21,
10,
49,
7,
-35,
-77,
-19,
6,
16,
17,
20,
-15,
-4,
32,
24,
-3,
5,
35,
29,
8,
-43,
-72,
-10,
-17,
-16,
-26,
45,
-33,
-22,
31,
-46,
-20,
-25,
-5,
-29,
38,
26,
-29,
-15,
-5,
-20,
8,
29,
-25,
-1,
-26,
30,
0,
0,
0,
13,
-43,
-18,
-19,
-29,
-11,
-32,
9,
5,
1,
30,
5,
-18,
-34,
21,
6,
45,
-2,
-4,
11,
-1,
-18,
21,
19,
0,
-22,
11,
-5,
-38,
-35,
-17,
64,
-55,
-35,
-3,
-32,
25,
20,
-9,
-4,
26,
-13,
13,
39,
-7,
-51,
-34,
-2,
-17,
-47,
0,
46,
4,
-18,
-28,
-17,
-71,
9,
-39,
25,
32,
-3,
12,
39,
-24,
70,
3,
-10,
9,
-2,
22,
-21,
22,
2,
3,
-5,
-24,
-32,
-2,
2,
-24,
36,
-32,
22,
61,
53,
-7,
-30,
43,
6,
15,
25,
25,
-2,
-19,
-40,
16,
-21,
7,
46,
-20,
-13,
48,
-9,
15,
-16,
54,
-22,
-32,
-6,
0,
-9,
3,
-63,
-10,
19,
2,
-69,
-1,
28,
18,
29,
-38,
13,
7,
28,
35,
-12,
-13,
33,
66,
7,
-18,
-6,
-28,
-5,
-44,
-7,
22,
15,
27,
31,
-23,
-1,
-12,
20,
-39,
33,
-43,
4,
1,
13,
0,
-9,
19,
35,
-30,
-21,
-28,
5,
-26,
-10,
16,
-33,
-18,
24,
-6,
8,
-11,
9,
-16,
89,
-1,
-32,
-35,
-9,
-62,
12,
-24,
28,
21,
46,
66,
-40,
25,
-2,
39,
-51,
55,
17,
51,
-5,
-7,
-6,
-2,
-49,
-9,
44,
-14,
-11,
23,
7,
27,
-42,
1,
9,
-27,
37,
2,
27,
-53,
-48,
-8,
9,
-7,
5,
-31,
5,
52,
-11,
0,
0,
-22,
-37,
-8,
-1,
49,
-40,
10,
-9,
13,
-39,
-16,
21,
56,
-11,
-15,
-23,
53,
-6,
-24,
-4,
-45,
0,
-14,
-13,
-6,
37,
-27,
-24,
42,
60,
17,
24,
0,
21,
-57,
-11,
23,
-60,
-18,
33,
22,
13,
-41,
10,
-18,
-7,
-23,
28,
18,
21,
6,
-35,
1,
-5,
32,
-22,
36,
95,
-41,
-36,
-5,
5,
-3,
-9,
48,
-27,
31,
-24,
16,
-25,
-24,
15,
0,
21,
17,
47,
-6,
-23,
16,
-45,
2,
-19,
8,
17,
16,
17,
-16,
-46,
7,
32,
31,
21,
-30,
34,
1,
-13,
12,
-6,
-6,
-55,
7,
30,
17,
13,
-14,
-59,
0,
0,
17,
0,
33,
-12,
32,
-17,
8,
-13,
-7,
16,
15,
-32,
32,
-15,
0,
10,
75,
0,
14,
-28,
20,
24,
32,
-63,
16,
-21,
0,
23,
24,
30,
20,
48,
-25,
-27,
-42,
34,
11,
-52,
-27,
39,
-17,
-24,
-21,
2,
26,
-2,
2,
-20,
26,
-16,
19,
-28,
-29,
-16,
18,
24,
26,
-25,
9,
37,
5,
29,
-15,
-41,
37,
-38,
9,
-3,
4,
-9,
33,
-64,
-42,
23,
-59,
-21,
2,
0,
-23,
-64,
-56,
31,
6,
8,
5,
17,
-1,
12,
-6,
-27,
-24,
12,
-13,
0,
-52,
8,
17,
-10,
5,
-16,
13,
-53,
-51,
21,
9,
56,
42,
-9,
-9,
-40,
21,
-20,
6,
7,
-25,
-9,
-24,
17,
24,
21,
-12,
-15,
42,
8,
14,
11,
4,
12,
19,
14,
2,
-3,
-21,
-8,
-26,
18,
9,
-10,
46,
7,
-22,
-2,
15,
33,
-32,
-36,
-18,
0,
-25,
-50,
-23,
9,
15,
-58,
-18,
46,
11,
-58,
24,
-7,
12,
-10,
18,
-73,
13,
51,
25,
21,
-15,
-57,
4,
-52,
-33,
6,
-5,
2,
17,
-4,
7,
12,
-22,
2,
5,
21,
7,
-44,
-5,
34,
55,
29,
29,
17,
40,
28,
-27,
-27,
-11,
13,
-33,
-65,
26,
7,
-28,
48,
-6,
-16,
-15,
-41,
5,
-43,
-7,
-12,
0,
0,
16,
22,
39,
25,
26,
26,
1,
2,
-30,
40,
-17,
-8,
7,
-8,
14,
28,
4,
5,
15,
41,
-24,
7,
-1,
-6,
8,
-53,
0,
6,
-3,
3,
-4,
10,
2,
1,
-49,
-37,
-13,
-4,
-24,
-15,
-45,
34,
12,
9,
-24,
-18,
-24,
24,
-20,
28,
-12,
-36,
-6,
-15,
-29,
43,
-26,
-77,
-35,
32,
50,
-17,
-7,
20,
1,
-66,
-27,
19,
-38,
52,
16,
17,
53,
-8,
-25,
-1,
-5,
5,
6,
-12,
-14,
-3,
-31,
-63,
22,
10,
31,
-18,
5,
-14,
48,
2,
5,
73,
-22,
42,
4,
43,
-38,
0,
-2,
12,
40,
17,
-11,
46,
15,
61,
-54,
43,
-48,
68,
52,
-61,
-14,
-11,
17,
-6,
29,
53,
-18,
-5,
-35,
29,
52,
-20,
-71,
-1,
7,
-8,
34,
0,
-24,
-10,
-3,
0,
30,
-30,
-5,
-8,
6,
12,
-20,
27,
-6,
34,
46,
5,
-13,
-3,
-1,
-21,
60,
34,
-23,
63,
-21,
35,
-17,
14,
46,
-43,
32,
-33,
5,
-29,
44,
-66,
-10,
6,
-29,
-9,
22,
-37,
-37,
25,
-45,
-28,
10,
20,
-42,
48,
-3,
-8,
-58,
12,
2,
-4,
-15,
6,
14,
-21,
-7,
-4,
-12,
20,
-16,
-33,
21,
-36,
23,
-12,
27,
-8,
-31,
7,
-1,
-20,
-48,
29,
-3,
4,
19,
-7,
-6,
-18,
29,
67,
17,
44,
7,
-24,
-7,
10,
-20,
-25,
-29,
5,
-13,
35,
-23,
-22,
32,
35,
-3,
-28,
-62,
21,
-6,
52,
-6,
19,
-15,
60,
-42,
-11,
28,
65,
-7,
-2
] |
Marston, J.
There is no written finding of facts in this ■case, and the only question really open is whether the court erred in refusing to make such a finding. Whether the reasons assigned by the court for not finding the facts could be considered valid or not we need not determine, as it must first appear that a proper request was timely made for such .a finding. The record shows that the defendants’ attorney requested in writing such a finding, but it does not appear when this request was made, whether before or after judgment. The Rule, 87, requires the request to be made before judgment, and we cannot presume that a request was so made in order to found error thereon. The record must show error affirmatively, which it does not in this case.
The judgment must be affirmed with costs.
The other Justices concurred. | [
-14,
-28,
10,
-22,
28,
-27,
61,
1,
3,
62,
59,
-46,
17,
31,
3,
-42,
27,
53,
40,
-18,
-37,
-1,
20,
28,
2,
-8,
44,
26,
-31,
0,
-11,
1,
-19,
11,
-17,
23,
17,
-6,
35,
-15,
3,
-48,
17,
-67,
-29,
-57,
-44,
3,
18,
-35,
24,
6,
-9,
6,
17,
8,
19,
0,
-5,
-29,
32,
-16,
62,
33,
-47,
-10,
0,
-41,
-23,
4,
-59,
37,
29,
-81,
-11,
-42,
25,
-13,
-14,
16,
34,
22,
52,
5,
45,
-28,
-14,
4,
34,
-29,
6,
0,
-11,
-21,
-10,
36,
-33,
-11,
6,
36,
3,
34,
-33,
-19,
-10,
44,
-61,
-24,
28,
-23,
54,
42,
-12,
-28,
-50,
-7,
3,
4,
-35,
-88,
-3,
17,
33,
20,
-28,
34,
-5,
-38,
26,
8,
-47,
-20,
-8,
31,
-5,
-9,
-9,
-10,
-18,
-43,
13,
-47,
14,
0,
31,
4,
18,
25,
-58,
-3,
-31,
9,
3,
26,
-2,
25,
-51,
-70,
33,
-56,
47,
58,
-25,
0,
38,
10,
-13,
-6,
28,
-66,
-1,
-19,
12,
8,
-14,
57,
0,
-4,
-4,
-17,
-5,
3,
-2,
-37,
-20,
14,
-16,
8,
2,
-30,
-41,
11,
4,
3,
17,
17,
-30,
34,
66,
-52,
-52,
-14,
25,
-20,
-32,
21,
-65,
-25,
-2,
42,
-11,
18,
-47,
-79,
-23,
-3,
-17,
-2,
-13,
15,
-11,
28,
-28,
-5,
-18,
-15,
15,
8,
-16,
-5,
-58,
80,
-4,
-28,
21,
-10,
10,
4,
36,
24,
-4,
-1,
-49,
-3,
5,
17,
20,
-31,
-41,
-4,
27,
36,
39,
-37,
-44,
-65,
13,
43,
-65,
4,
-11,
68,
-8,
21,
-19,
2,
8,
-4,
7,
-30,
-14,
-15,
-13,
-7,
-30,
32,
-16,
-50,
-30,
31,
-10,
18,
13,
28,
-88,
40,
44,
27,
32,
28,
45,
-44,
-38,
-1,
38,
-16,
35,
8,
-26,
-52,
17,
-27,
32,
63,
4,
-28,
-24,
23,
-44,
6,
19,
33,
-11,
14,
14,
-12,
-48,
-6,
42,
-10,
1,
-2,
34,
-22,
16,
10,
47,
-76,
-10,
22,
28,
15,
11,
51,
11,
-11,
8,
-4,
-6,
1,
8,
2,
-51,
-24,
-19,
28,
-52,
26,
-60,
11,
-34,
32,
20,
30,
-15,
13,
4,
-67,
-22,
-5,
56,
-2,
19,
11,
-3,
25,
-17,
-38,
37,
45,
47,
-15,
-13,
-26,
-9,
-8,
82,
0,
-2,
62,
-33,
7,
-17,
-11,
-2,
37,
-3,
-18,
29,
0,
-30,
-24,
33,
-13,
-47,
0,
-27,
37,
31,
8,
2,
-10,
0,
-18,
-47,
24,
-10,
-34,
14,
23,
8,
13,
-13,
-1,
-42,
-24,
32,
-31,
3,
-50,
-37,
-6,
1,
-12,
-20,
-31,
-14,
34,
-9,
-7,
-12,
-3,
-15,
-24,
-35,
14,
-20,
-4,
8,
-17,
-29,
25,
6,
19,
-10,
-5,
3,
4,
-19,
-7,
0,
28,
55,
-23,
-16,
30,
23,
-20,
-11,
-14,
24,
-3,
-29,
44,
24,
-20,
-14,
-33,
5,
-20,
-13,
2,
26,
-21,
14,
27,
-21,
16,
24,
-46,
27,
31,
-13,
-7,
-30,
33,
-56,
-37,
-27,
-3,
-33,
-15,
-32,
-43,
-75,
6,
-22,
7,
-60,
30,
-23,
45,
22,
-34,
21,
2,
10,
-4,
50,
30,
5,
51,
34,
-30,
-38,
-28,
19,
31,
-22,
40,
10,
10,
-4,
-24,
-20,
0,
25,
-22,
-6,
-3,
60,
89,
15,
-23,
-19,
20,
-2,
-12,
59,
10,
-4,
11,
3,
15,
8,
30,
28,
-23,
-48,
51,
-15,
-26,
20,
-27,
-15,
-8,
4,
18,
14,
-37,
-20,
-31,
-16,
39,
85,
1,
-10,
3,
40,
-3,
54,
28,
-34,
4,
-43,
-6,
6,
1,
18,
-30,
-6,
0,
4,
-50,
-51,
18,
1,
6,
52,
-51,
-34,
-34,
-1,
4,
-12,
-67,
-24,
-37,
14,
40,
24,
15,
-1,
0,
-17,
-7,
-1,
18,
-21,
-42,
24,
-53,
-62,
10,
1,
28,
9,
-21,
11,
-10,
15,
1,
-35,
-14,
43,
11,
6,
8,
-9,
-59,
4,
-2,
5,
-8,
1,
33,
-13,
-10,
-21,
-20,
63,
-10,
39,
-5,
21,
0,
-38,
5,
25,
32,
38,
34,
-13,
-11,
-68,
23,
22,
-20,
11,
0,
10,
-43,
-17,
23,
3,
49,
-24,
-29,
58,
8,
3,
-15,
12,
-14,
25,
18,
50,
13,
0,
0,
4,
-21,
30,
7,
11,
-33,
-12,
49,
12,
7,
26,
9,
34,
13,
6,
-22,
28,
34,
12,
-17,
22,
-62,
-10,
-1,
2,
-10,
17,
17,
-26,
30,
-20,
29,
-10,
-5,
-4,
-2,
-9,
19,
-14,
-20,
33,
-40,
24,
-31,
-60,
-12,
47,
-5,
48,
-27,
19,
22,
-9,
14,
-22,
17,
25,
-29,
-40,
17,
-2,
25,
6,
-11,
38,
25,
32,
-34,
-14,
66,
55,
-35,
52,
2,
-22,
66,
29,
15,
10,
-46,
-5,
4,
-15,
-41,
-25,
1,
-49,
-50,
-54,
59,
6,
-65,
22,
-38,
-67,
65,
-29,
-10,
65,
-9,
-2,
16,
-21,
104,
-1,
-10,
-61,
-1,
-48,
30,
71,
-22,
-30,
-21,
46,
45,
-3,
16,
-18,
13,
36,
16,
14,
-6,
-8,
22,
-11,
71,
31,
-34,
21,
-62,
-22,
-39,
0,
15,
4,
23,
50,
-42,
6,
-5,
-6,
-12,
12,
-14,
-3,
-1,
35,
-19,
38,
-43,
-11,
22,
14,
-5,
-34,
0,
-25,
-16,
-19,
3,
-28,
-32,
13,
0,
-22,
66,
0,
-9,
26,
-14,
38,
6,
7,
-54,
-3,
2,
64,
11,
-36,
0,
8,
-16,
42,
10,
-31,
23,
51,
-44,
-16,
-9,
0,
-23,
-44,
9,
0,
-31,
31,
-19,
6,
22,
46,
35,
-2,
-35,
-4,
-34,
24,
4,
38,
-27,
33,
25,
1,
13,
3,
-25,
-9,
29,
0,
4,
-26,
20,
32,
11,
23,
27,
-30,
36,
15,
23,
0,
-8,
-7,
16,
-1,
-11,
22,
-10,
27,
26,
19,
-26,
19,
-31,
0,
29,
-83,
-27,
10,
-29,
16,
19,
40,
-5,
-4,
1,
-51,
-8,
-26,
-19,
17,
9,
-6,
-13,
-75,
29,
-3,
2,
-7,
-56,
-18,
15,
33,
42,
-13,
3,
-31,
27,
-42,
0,
-19,
27,
0,
24,
-11,
24,
-56,
45,
-2,
-20,
11,
1,
4,
-48,
27,
-27,
-50,
7,
27,
-45,
-28,
12,
-38,
10,
-15,
-8,
-10,
23,
-8,
-52,
-12,
-27,
-12,
3,
-27,
-14,
17,
24,
-14,
-15,
27,
40,
-23,
-65,
-22,
18,
-17,
-53,
4,
53,
61,
98,
-28,
-11,
-8,
-30,
11,
64,
6,
66,
-35,
15
] |
Marston, J.
Prior to December 17, 1879, the parties •hereto had been engaged, as co-partners, in carrying on business as wholesale jobbers in clothing, dry goods, etc., in the •city of Detroit, On that day they entered into an agreement for a dissolution of the firm and a division of their stock of goods. They also agreed therein that all outstanding accounts, notes and mortgages of the firm, except those appearing upon the city ledger so called, should be collected by the defendants, and a disposition of the moneys so collected was also provided for. It was also agreed therein that all accounts, notes and mortgages which should have matured and be outstanding at the expiration of one year from the date of the dissolution, should be disposed of as the parties could agree, and if no unanimous agreement ■could b'e had, then such accounts should be placed in the hands of some proper person for collection. It was also farther agreed that accounts past due and not settled for a. reasonable time after the expiration of such year, either of said parties should have the right, after notice to the others, to secure the settlement of such accounts in such a shape and manner as should be advantageous to the retiring firm, the expense of collection to be paid out of the partnership funds.
Under this agreement the parties had agreed fully and clearly how these accounts should be collected, and the disposition made of this matter by the court, in appointing a receiver to take possession of and collect the same, would in our opinion violate the letter and spirit of the mode agreed upon by the parties. The defendants are responsible, and no danger can be apprehended in awaiting a disposition of this case upon the merits before resorting to such a remedy. That an appeal lies from such an order is no longer open to question in this State. Both these matters we consider as settled. Arnold v. Bright 41 Mich. 210, and cases cited.
The order must be reversed with costs.
The other Justices concurred. | [
-17,
12,
33,
-10,
-13,
-2,
21,
0,
34,
23,
-20,
14,
-17,
7,
11,
11,
14,
-34,
-9,
1,
-5,
-18,
-22,
-42,
16,
12,
12,
-17,
36,
13,
-44,
-33,
24,
26,
-17,
57,
-22,
5,
23,
-66,
28,
0,
37,
10,
-4,
31,
55,
-31,
48,
-69,
-15,
-11,
-13,
21,
24,
-40,
-35,
-8,
35,
-1,
16,
-13,
51,
36,
-26,
-18,
-12,
26,
33,
-14,
-19,
17,
11,
-33,
25,
-56,
-6,
-7,
-20,
-32,
64,
-51,
39,
-20,
-11,
12,
10,
23,
-40,
-35,
0,
45,
36,
26,
24,
19,
7,
13,
-44,
29,
26,
-21,
-31,
-1,
-6,
-2,
17,
-15,
10,
9,
24,
20,
3,
12,
-36,
10,
-19,
-37,
10,
-6,
30,
14,
1,
-2,
26,
8,
-16,
-9,
12,
11,
-4,
4,
-43,
28,
-10,
-28,
0,
29,
-13,
34,
26,
-28,
-13,
-38,
16,
26,
15,
14,
38,
-64,
-41,
49,
13,
56,
6,
19,
-9,
-38,
43,
-37,
-3,
-44,
25,
-20,
-6,
23,
-62,
8,
2,
23,
-4,
-12,
0,
-10,
-6,
37,
-21,
-21,
4,
-22,
19,
16,
-9,
-48,
10,
-11,
48,
-4,
46,
-48,
11,
-18,
-10,
11,
-38,
-50,
32,
28,
-7,
25,
1,
-32,
-33,
1,
-38,
-12,
48,
22,
-32,
40,
-9,
-12,
6,
-45,
-37,
20,
-35,
-37,
-13,
-42,
11,
-23,
-22,
24,
-24,
-60,
0,
4,
40,
-15,
-25,
8,
5,
0,
-14,
-1,
10,
63,
14,
-1,
0,
-51,
-39,
-37,
6,
26,
14,
0,
8,
28,
-47,
-31,
6,
-11,
-31,
17,
-21,
26,
-8,
21,
9,
59,
-59,
3,
32,
23,
56,
19,
1,
30,
-14,
-7,
42,
0,
-33,
-21,
-11,
-8,
-61,
49,
-24,
-24,
42,
0,
2,
-4,
-37,
-6,
-29,
34,
16,
12,
0,
1,
5,
4,
-21,
-32,
-1,
7,
-36,
-1,
3,
11,
40,
-14,
-41,
-14,
-32,
-56,
-23,
10,
17,
-26,
54,
13,
-3,
21,
18,
34,
7,
49,
19,
-3,
-24,
-10,
38,
-15,
-10,
-23,
6,
-8,
-5,
-20,
-54,
26,
32,
-36,
15,
-17,
11,
-46,
-12,
5,
8,
-14,
20,
-35,
-14,
-9,
-1,
-15,
0,
55,
39,
51,
-6,
-1,
-51,
12,
7,
-4,
-2,
-1,
-10,
37,
-30,
-34,
41,
27,
15,
73,
-29,
-1,
-36,
24,
-30,
-22,
-15,
16,
-17,
-19,
-3,
-15,
32,
-3,
5,
-16,
-29,
-31,
-35,
20,
10,
0,
-76,
-33,
24,
4,
-44,
-15,
25,
42,
-37,
9,
-6,
-14,
18,
-42,
26,
16,
-29,
14,
5,
-5,
-46,
-29,
31,
-39,
25,
-28,
42,
2,
-35,
-11,
-26,
-23,
38,
27,
-14,
9,
-6,
40,
39,
-48,
31,
27,
-19,
-6,
4,
9,
-18,
4,
-13,
23,
33,
10,
-30,
38,
45,
36,
-8,
21,
20,
4,
26,
42,
-8,
-20,
-10,
4,
63,
-54,
-14,
-37,
-48,
-41,
27,
-55,
26,
6,
-83,
-24,
35,
-17,
0,
-19,
12,
-22,
0,
29,
28,
72,
25,
58,
-77,
20,
-15,
-38,
-13,
-22,
40,
-6,
-27,
36,
17,
2,
-49,
-29,
-5,
-35,
13,
-25,
39,
-7,
0,
25,
-26,
-57,
-11,
9,
-36,
12,
27,
39,
1,
-11,
-38,
48,
51,
47,
9,
3,
-52,
3,
21,
16,
34,
16,
21,
-3,
16,
82,
-2,
-64,
21,
34,
-10,
6,
17,
-54,
-16,
11,
-9,
1,
0,
17,
-48,
-16,
-14,
-8,
-2,
-38,
-22,
-7,
15,
15,
-4,
14,
15,
7,
-28,
-13,
5,
-10,
49,
-52,
-23,
-47,
36,
-9,
5,
7,
26,
34,
-4,
14,
26,
-20,
0,
-44,
-22,
37,
-57,
-23,
-30,
-7,
-13,
0,
-5,
16,
7,
-5,
-15,
-12,
-18,
-46,
0,
29,
-5,
30,
6,
-10,
-2,
-22,
0,
-7,
-34,
24,
-7,
-11,
36,
-50,
-30,
8,
-30,
12,
12,
16,
45,
50,
31,
20,
-7,
-12,
23,
30,
12,
-1,
0,
71,
-20,
-2,
38,
11,
-32,
59,
56,
27,
-11,
-44,
35,
9,
36,
20,
27,
7,
-18,
30,
56,
60,
3,
13,
26,
21,
11,
-4,
15,
-3,
26,
-29,
-1,
13,
-10,
31,
20,
27,
-8,
0,
79,
-49,
-1,
-18,
31,
6,
48,
-4,
-59,
35,
3,
15,
-13,
35,
-60,
5,
-16,
-39,
18,
-4,
1,
-1,
35,
-11,
-97,
-49,
-60,
24,
21,
34,
20,
-26,
0,
-18,
0,
51,
-43,
8,
-91,
43,
-9,
2,
4,
-8,
-2,
-22,
-43,
23,
-38,
-3,
-27,
-59,
-22,
-43,
-8,
-38,
-6,
-22,
-25,
-30,
-25,
1,
40,
-12,
11,
-13,
33,
21,
-9,
-2,
-41,
7,
43,
33,
-17,
41,
-2,
0,
-39,
22,
-6,
16,
34,
14,
33,
20,
31,
-8,
2,
-2,
-67,
-21,
-23,
-14,
-40,
-3,
25,
1,
-36,
-1,
-25,
-80,
-25,
19,
-36,
15,
10,
5,
7,
2,
11,
0,
13,
-67,
-44,
36,
-20,
-26,
21,
32,
50,
28,
-4,
-17,
34,
9,
-29,
49,
-18,
1,
12,
1,
-47,
5,
-14,
-33,
21,
31,
-31,
6,
42,
-26,
12,
-14,
-3,
-3,
15,
41,
-36,
0,
-3,
14,
-47,
-17,
32,
-5,
-49,
32,
-24,
-1,
0,
48,
50,
-14,
-4,
-8,
-19,
20,
42,
-2,
-25,
-13,
-67,
-29,
-55,
18,
11,
2,
-21,
54,
10,
-88,
-20,
-4,
-26,
-20,
-17,
2,
17,
-1,
32,
-21,
29,
14,
-49,
-8,
23,
-1,
-26,
-26,
8,
27,
-43,
33,
-22,
12,
-45,
16,
-5,
-29,
-26,
-3,
9,
-5,
-9,
15,
-3,
38,
34,
-36,
-17,
10,
14,
-16,
-52,
29,
16,
2,
-8,
-71,
50,
-22,
1,
-39,
-28,
9,
23,
62,
-6,
29,
-2,
39,
56,
2,
-11,
-10,
-24,
43,
9,
-7,
42,
4,
6,
-30,
-38,
-14,
10,
-42,
21,
3,
-15,
22,
-2,
18,
27,
9,
0,
-41,
6,
-21,
49,
0,
-7,
25,
-10,
7,
36,
-3,
10,
24,
13,
-27,
-4,
31,
15,
36,
-21,
21,
-16,
-38,
-56,
28,
0,
-31,
22,
-9,
3,
3,
23,
-35,
1,
-42,
0,
3,
-16,
-19,
-16,
-21,
12,
-18,
-49,
-32,
16,
-39,
15,
48,
28,
-52,
12,
33,
0,
-8,
15,
15,
21,
-22,
-26,
-5,
13,
21,
25,
-40,
22,
-22,
-18,
8,
2,
-40,
2,
43,
-2,
-30,
-35,
41,
10,
70,
-42,
-7,
-45,
57,
11,
24,
10,
-11,
-12,
24
] |
Graves, C. J.
The relator, a resident of Eaton county, was arrested therein on a criminal warrant from a justice of the peace of Branch county, on complaint of Horace Holcomb, and taken by the arresting officer before said justice in that county. This was on the 18th of May. On request of relator the examination was postponed until the 31st, and he at once gave bail for his appearance at that time. But on the same occasion and at the same place and about the time of his temporary release on bail he was arrested on a civil oapias from the circuit court for such county at the suit of the complainant in the criminal prosecution and on the same matter. In order -to escape imprisonment he furnished appearance bail; but subsequently moved to set aside the proceedings, and the court ordered his release from custody and that the requirement of bail should be vacated and that the bail-bond should be delivered up, but reserved action on the question of annulling the service of the writ, and directed that, relator cause his appearance to be entered in the cause on or before a week, and that he have leave to show cause within that time why this requirement for him to enter his appearance should not be vacated and the writ quashed.
It appears from the return to the order to show cause that on the hearing of the motion to set aside the proceedings the circuit judge and relator’s counsel came to an understanding that so much of the motion as related to the quashing of the writ or vacating the service of it should be held under advisement for a week to enable relator’s counsel to furnish the judge with a brief. And it also appears that in that interval relator’s counsel forwarded a communication in which ho cited a case in this Court and explained his .views and that this communication was intended for the brief he had agreed to furnish. The circuit judge did not regard it in that light and wrote back that he would await the promised brief and not decide immediately. ITe referred to two decisions at nisi prius as bearing somewhat on the question. The matter remained undecided and this application to show cause was made to this Court.
It is not surprising that the learned judge was not fully prepared to hold, without opportunity for examination, that the service of the civil process was improper and subject to be set aside, and that he felt that it was incumbent on the party moving to produce authority. Our attention has been called to the subject recently in several cases and we are satisfied that the law was with the relator in his application to the circuit court'and that he was then entitled as matter of right to have the service on him vacated, and we are unable to see that he has either lost or surrendered this right;
"Within the week allowed by the order of the court for the disposal of the question the relator’s counsel furnished such authority and explanations as he was able, and indicated that his letter constituted the brief which liad been required of him, and when the week was ended, if not before, it was the relator’s right, as this Court views it, to have the relief which was asked for from the court.
The writ must be allowed with costs to the relator against Horace Holcomb, the plaintiff in the civil cause.
Campbell and Cooley, JJ. concurred. | [
18,
-5,
30,
34,
-50,
-6,
12,
-32,
-17,
52,
27,
-32,
-11,
3,
16,
-13,
1,
10,
21,
1,
-16,
-30,
27,
58,
1,
-46,
0,
27,
-15,
17,
-1,
4,
-20,
-5,
27,
-17,
9,
-31,
33,
-7,
18,
19,
2,
-13,
-36,
-26,
10,
14,
0,
-31,
19,
-9,
-54,
61,
41,
15,
13,
-37,
7,
-30,
9,
-7,
-50,
0,
-6,
24,
-30,
24,
-15,
7,
23,
-44,
18,
4,
40,
-11,
-16,
-49,
35,
40,
10,
24,
-24,
18,
-7,
-32,
-47,
-40,
8,
-5,
23,
23,
-51,
6,
27,
-12,
9,
-20,
11,
34,
1,
1,
-18,
32,
-46,
13,
-14,
-10,
36,
8,
33,
34,
50,
8,
-21,
-52,
-82,
-66,
45,
-19,
-28,
-18,
42,
29,
-15,
-59,
-31,
10,
-2,
-24,
-22,
17,
67,
-25,
-24,
-14,
21,
23,
-43,
-13,
3,
-13,
37,
11,
50,
4,
30,
34,
-58,
44,
-4,
21,
7,
62,
6,
23,
68,
-29,
-16,
34,
49,
30,
0,
2,
12,
-21,
-41,
-37,
-1,
-25,
7,
58,
13,
68,
-5,
-30,
-54,
-18,
36,
34,
-5,
1,
-8,
-47,
38,
-30,
22,
4,
-27,
-10,
-24,
19,
-11,
6,
45,
3,
-52,
1,
-22,
-8,
-37,
37,
-12,
49,
-18,
-68,
22,
-3,
10,
-5,
-57,
-46,
-40,
-9,
6,
-11,
7,
31,
-14,
40,
-18,
28,
24,
6,
-31,
-44,
17,
41,
-3,
-2,
60,
8,
-52,
-33,
5,
38,
0,
7,
36,
31,
-8,
-3,
23,
-26,
48,
-9,
14,
-8,
-54,
-10,
-26,
10,
7,
-9,
-22,
0,
25,
-7,
-17,
-4,
23,
-13,
4,
15,
-10,
-1,
16,
7,
30,
26,
-39,
-2,
15,
-7,
14,
17,
-11,
-2,
12,
-28,
25,
12,
-58,
28,
-3,
0,
8,
2,
-17,
18,
26,
-42,
-16,
-1,
-15,
32,
53,
25,
15,
-8,
38,
3,
-35,
-18,
-29,
17,
0,
-11,
-21,
-16,
50,
-7,
-1,
39,
18,
0,
-23,
-5,
0,
-59,
-21,
17,
-35,
-45,
6,
38,
11,
32,
21,
-23,
3,
-29,
-1,
0,
-12,
36,
-20,
28,
20,
18,
11,
-51,
-65,
-11,
-5,
13,
3,
-28,
-29,
-17,
0,
16,
28,
35,
-41,
-12,
-55,
-48,
6,
-31,
27,
5,
-31,
18,
35,
-14,
-4,
-21,
11,
-24,
24,
-44,
32,
-28,
3,
-13,
0,
-10,
-20,
0,
-22,
-12,
2,
0,
-3,
19,
-17,
17,
4,
0,
-4,
42,
-18,
-35,
-65,
36,
42,
-8,
-12,
-39,
7,
19,
-6,
16,
-26,
-5,
-45,
40,
5,
-12,
34,
-6,
28,
17,
50,
6,
-43,
-18,
0,
-14,
-4,
-21,
5,
-38,
-8,
48,
8,
9,
14,
-11,
13,
-15,
54,
39,
-4,
20,
-34,
11,
-25,
-8,
-27,
-18,
-28,
-18,
29,
-21,
-26,
-12,
22,
-18,
7,
-31,
8,
-39,
-32,
37,
10,
2,
20,
-24,
10,
-33,
-47,
23,
12,
-6,
-34,
-16,
-25,
20,
-13,
-9,
18,
-14,
-43,
-6,
-27,
-14,
-1,
-17,
-8,
-15,
-38,
6,
-29,
46,
-14,
-30,
14,
21,
-24,
5,
-16,
12,
-5,
0,
-11,
-26,
12,
49,
17,
45,
-41,
-39,
67,
30,
-21,
3,
26,
0,
23,
-22,
-11,
24,
-6,
20,
19,
7,
-30,
8,
39,
13,
14,
-40,
5,
60,
-22,
19,
-18,
-16,
11,
-32,
-36,
-38,
3,
43,
-24,
36,
11,
-41,
3,
14,
45,
-3,
-40,
5,
-19,
-4,
-18,
-3,
-36,
19,
14,
-26,
-22,
-3,
-5,
-31,
-23,
18,
32,
-24,
8,
6,
-31,
30,
-6,
-9,
39,
9,
37,
-27,
-2,
17,
3,
7,
-39,
-2,
29,
28,
8,
10,
-34,
-44,
31,
-37,
0,
-1,
0,
-19,
-18,
37,
-22,
16,
-18,
-3,
-18,
1,
7,
21,
-3,
71,
6,
29,
65,
24,
48,
68,
-7,
19,
15,
-15,
-35,
19,
-21,
36,
12,
9,
-59,
32,
-12,
-25,
-46,
9,
-15,
-80,
13,
7,
-27,
-15,
-28,
-12,
0,
47,
-39,
-16,
0,
47,
-27,
38,
-3,
32,
3,
-46,
-10,
23,
12,
28,
-19,
-7,
0,
20,
26,
2,
29,
-19,
17,
-15,
32,
24,
27,
1,
-20,
38,
17,
0,
-1,
14,
25,
3,
31,
-34,
30,
-14,
-26,
-35,
8,
4,
42,
33,
18,
16,
-4,
-13,
25,
-6,
-3,
44,
3,
50,
-4,
27,
13,
12,
4,
-6,
21,
0,
-34,
-24,
0,
-26,
24,
-13,
-12,
-33,
-41,
-37,
1,
-30,
-47,
4,
16,
14,
19,
-18,
0,
-46,
-4,
11,
29,
-10,
-17,
13,
18,
46,
-4,
-14,
31,
-44,
37,
24,
20,
-69,
-11,
-24,
-29,
9,
11,
7,
-46,
-13,
-53,
12,
4,
2,
-11,
19,
-48,
-15,
89,
11,
13,
-13,
-36,
41,
-1,
-52,
-46,
-7,
29,
13,
-24,
-39,
-46,
8,
-29,
-2,
29,
11,
21,
-32,
0,
-34,
-11,
7,
-7,
30,
-12,
-39,
11,
11,
-58,
0,
1,
-38,
0,
-12,
-13,
-6,
24,
-42,
31,
11,
-41,
-20,
30,
8,
-21,
48,
62,
42,
32,
38,
24,
36,
13,
21,
1,
9,
1,
18,
-23,
-22,
-15,
-67,
-13,
-12,
-4,
0,
-21,
4,
55,
-19,
-13,
56,
20,
-3,
3,
31,
4,
2,
1,
9,
38,
-28,
31,
-2,
13,
-2,
44,
15,
9,
-33,
-27,
15,
51,
-11,
6,
24,
2,
4,
-45,
-17,
-36,
-19,
26,
-2,
16,
22,
-12,
5,
8,
-81,
31,
-9,
38,
28,
-9,
17,
-1,
-16,
15,
34,
-45,
14,
19,
25,
-22,
-8,
-41,
-2,
29,
19,
-11,
-1,
1,
-106,
17,
16,
-31,
8,
-34,
37,
0,
0,
-31,
-18,
-49,
-9,
1,
11,
-15,
48,
37,
-45,
7,
-15,
13,
6,
-5,
-7,
-46,
-19,
-17,
0,
-36,
-8,
-9,
-20,
-8,
23,
39,
13,
-2,
17,
9,
10,
17,
50,
20,
6,
-47,
-50,
20,
-15,
54,
-4,
-45,
4,
-2,
-29,
-31,
48,
11,
23,
2,
8,
-8,
6,
-64,
8,
25,
13,
-49,
31,
-35,
4,
26,
-16,
-44,
-6,
2,
0,
-54,
74,
-17,
-23,
0,
0,
1,
-11,
-2,
5,
18,
44,
35,
-21,
-6,
-23,
-67,
-32,
-26,
13,
-55,
-8,
-29,
20,
-12,
-34,
10,
0,
-2,
65,
24,
45,
-40,
-39,
-47,
25,
-21,
-10,
33,
45,
11,
-78,
-8,
39,
-22,
6,
3,
-13,
28,
2,
5,
41,
-5,
-7,
14,
-19,
-3,
24,
-16,
-13
] |
Cooley, J.
The proceeding which comes under review on this record is the final accounting of Theodore P. Sheldon and John W. Breese, administrators. The accounting was first had in the probate court as the final step in the regular and ordinary administration of the estate, was taken by the appeal of Calvin Ii. Mower, claiming rights in the estate, to the circuit court, and after adjudication in that court has been brought by the appellant into this by writ of error. The principal questions raised upon this record are, Whether Calvin K-. Mower shows any right to intervene and appeal; Whether the circuit court did not err in the reception 'of certain evidence; Whether certain specified payments by the administrators have not in effect been twice allowed; Whether the allowances' to the administrators are not excessive, and Whether the errors, if any, in the circuit court can be reviewed and corrected in this court on writ of error.
To an understanding of the legal questions, a summary statement of the facts will be essential. These in the main are taken from the finding of facts by the circuit judge.
Horace Mower died intestate in December, 1860, leaving real and personal estate and a half interest in the copartnership- assets of the banking firm of T. P. Sheldon & Co., composed of Theodore P. Sheldon and himself. He left no widow surviving him, and his sole heir at law was Lyman Mower, his father. On March 4, 1861, Theodore P. Sheldon and John W. Breese were appointed administrators. They returned an inventory in which the real estate was appraised at $1239.90, the personal at $4415.31, and the copartnership assets at $128,557.87.
Soon after the death of Horace Mower an understanding was had between Sheldon and Lyman Mower, under which Sheldon continued the copartnership business in the same manner and style, and retained the exclusive control until April 23, 1862, when an agreement for a settlement and a division was made between them. In that agreement tlie partnership property was estimated at $53,637.39; but this did not include banking assets. The property was not at once divided, but it was understood that Sheldon and Lyman Mower should be tenants in common in respect to it. Sheldon was to pay the copartnership debts and continue to manage the partnership business; and Breese was left in charge of the individual estate of the intestate.
On February 5, 1864, the administrators filed an account in the probate court purporting to be a separate account of John W. Breese as administrator and of Sheldon as surviving partner and administrator; but no action was taken for the settlement of this. On March 7,1864, a more elaborate and complete account was filed and proceedings had for its final settlement. But a question as to the jurisdiction of the probate court over the partnership effects having been raised, the judge of probate decided that he could not pass upon that portion of the purposed accounting, and the administrators thereupon withdrew it from consideration. Meantime claims against the estate of Horace Mower had, by the consent of Lyman Mower, been paid from his share of the partnership assets.
Certain disputed questions having arisen in the partnership affairs, Lyman Mower filed his bill in the Kalamazoo circuit court in chancery for their settlement. That case went to decree on May 20, 1867. No question on this accounting arises in respect to it. On October 15, 1864, the administrators filed another account in probate court in which they stated in substance that they had never received the partnership property or disposed thereof officially ; but that the Same remained in the hands of Sheldon. This explanation has special reference to the agreement touching partnership property, which had been made between Sheldon and Lyman Mower. The administrators charged for services on this account, $352 each, and also for commissions $118.32. No action was had for the settlement of this account.
The proceedings on this final accounting were begun June 28, 1877. The accounting shows payments for the estate to the amount of $3715.88, besides payments made by Sheldon on copartnership debts and the payments to Lyman Mower. Previous to the presentation of this account all the individual assets of the estate had, on the petitio'n of the administrators, been assigned and delivered to Lyman Mower.
Lyman Mower died in the State of Vermont in the fall of 1875. On this accounting Calvin R. Mower appears to oppose the allowance of the account, and presents as evidence of his right to appear what purports to be the last will and testament of Lyman Mower, probated in the State of Vermont on November 5, 1875, but never probated and allowed in this State. In the codicil to this will Calvin R. Mower is named as residuary devisee and legatee. Objections were made to his appearing, on the ground that' a will not probated in this State showed no legal right. But the probate court permitted him to appear and he filed exceptions to the account, upon which he was heard. Being dissatisfied with the allowance made to the administrators, he took his appeal. When the case came into the circuit court, the court made an order directing the parties to “ prepare an issue on such pleadings as they may be advised are necessary and proper in the case,” and a declaration was filed by the administrators, but this seems to have been entirely unnecessary and certain questions which arise as to the admissibility of evidence under it will not be noticed. No better or further issue was needed than the account itself and the exceptions filed to it.
Exceptions were also taken on the trial before the judge without a jury to the admissibility of the testimony of the administrators in respect to matters which must have been within the knowledge of Horace Mower or of Lyman Mower in their life-time respectively: but the court received it.
For final conclusions in the case the circuit judge reached the following:
In so far as the estate was assigned to the heir at law and received by him in January, I860, there was full and final administration.
The administrators were entitled to and bound to administer the interest of the deceased in the copartnership of T. P. Sheldon & Co.
It was proper to permit the surviving partner to close up the partnership business and ascertain the exact interest of the estate therein, and it was also proper for the surviving partner to make settlement with the sole heir, when such settlement did not in any manner interfere with the rights of others.
The arrangement actually made did not interfere with the rights of others, but left the assets at all times subject to the control of the administrators so far as was needful for the purposes of administration, and they had a right to draw therefrom for the payment of debts and for their own compensation.
The ‘administrators having made charges for their services in their account of October, 1864, are bound by those charges, and cannot now increase them for services previously rendered. Put the court has authority under the statute — Comp. L. § 7441 — to allow, in cases of unusual difficulty and responsibility, such further sum over the regular statutory charges as may be deemed reasonable, and it would be reasonable in this case to make an allowance for the difficulty and responsibility of attending to the interest of the estate in the copartnership assets, at the rate of $1000 per year from the appointment of administrators until the contract of April 23,1862, amounting to $1063.30.
On this basis the amount found due to the administrators was $1534.75, and this sum was ordered to be paid.
I. We are of opinion that Calvin P. Mower was rightfully permitted to intervene and contest the allowance of the account. The objection made to his appearance was that his interest was not established, and he stood in respect to the litigation in the position of a stranger, until the will of Lyman Mower should be duly probated in this State. For the purposes of administration and legal execution it is true that wills probated in other states and countries cannot be taken notice of in this State until they are probated hero ; Comp. L. §§ 4342 et seq.; Wilt v. Cutler 38 Mich. 189 ; but there is no good reason why such a probate should be required when the only object is to show an interest under the will for some merely incidental or collateral purpose. If Calvin B. Mower was interested in the estate of Lyman Mower under the probate of Lyman Mower’s will in Vermont, he had an interest in the property of that estate, wherever situated, sufficient to entitle him to be heard in any proceedings which in their nature are proceedings without parties. In the settlement of that estate, whether by the administration in Vermont alone, or by that and one or more ancillary administrations elsewhere, all the property wherever situated must at some time be brought under judicial cognizance, and the interest of any devisee or legatee entitled to claim in Vermont nnder the probate valready had there, is liable to be increased or diminished as the result of administrations in other jurisdictions. This is sufficient to justify a court elsewhere, in proceedings essentially in rem, in permitting them to appear and be heard. To require a new probate in this State for that mere purpose would be unreasonable and unnecessary expense.
II. We also think this case is properly brought to this court by writ of error. The statute provides that “ in all cases not otherwise provided for any person aggrieved by. any order, sentence, decree or denial of a judge of probate, may appeal therefrom to the circuit court.” The jurisdiction of the probate court is such that very different proceedings requiring wholly different treatment in the circuit court may be brought up by appeal, and they must be proceeded with in that court according to their nature and proper analogies. 'Where the proceeding in the probate court involves common-law questions and stands in the place of a suit at law, it naturally assumes the form of a common-law suit in the circuit court, and it is very proper and not unusual to provide for the making up of a common-law issue. The trial of such an issue will not be different from any common-law trial, and exceptions may be settled and writ of error had as in other cases. But appeals from interlocutory orders cannot take that form: Churchill v. Burt 32 Mich. 490; nor proceedings for the removal of an administrator: Conrad v. Button 28 Mich. 365 ; or for the appointment of a guardian: Cameron v. Bentley 28 Mich. 520. But in several cases appeals from the final accounting of an administrator have been proceeded in as common-law cases without difficulty or confusion. Hall v. Grovier 25 Mich. 428; Brown v. Forsche 43 Mich. 492.
But it does not follow that the case is to be tried in the circuit court exactly as an ordinary suit at law would be, and all questions disposed of in the same way. So far as' the case is peculiar, it must have peculiar treatment, and if the questions are such as it is improper to submit to a jury, the right of trial by jury cannot be demanded in respect to them; and to that extent the ordinary course and practice of the court must be conformed to the case. Now in the case of administration accounts there are questions of this character, and the question which is most earnestly contested on this record is one of them. The statute provides for certain definite allowances to executors and administrators for their services as such; but it also provides that “ in all cases such further allowances may be made as the judge of probate shall deem just a,nd reasonable for any extraordinary services not required of an executor or administrator in the common course of his duty.” Comp. L. § 4491. It is not contested that a settlement including such an allowance may be appealed to the circuit court; but it was never contemplated that when the case reached that court the judgment of a jury might be substituted for the discretion of the judge in respect to such allowances. The case of a guardian’s accounting is strictly analogous, and we have heretofore had occasion to explain that when the case is brought into the circuit court, it is to be dealt with as an equitable proceeding rather than a legal. Gott v. Culp 45 Mich. 265. But as no provision is made for appealing as in chancery cases from thb circuit to this Court, the undoubted appellate authority of this Court over these as well as all others, requires for its exercise the employment of the writ of error; and there is no difficulty in reaching by means of it all questions that are roviewable.
III. On writ of error this Court reviews the action of the court below on questions of law only, but examines the conclusions of that court on questions of fact for the purpose of determining such questions of law as arise upon them. The rulings upon the admission of evidence are open for examination here if properly excepted to, but when the only errors alleged in that regard consist in receiving what it is claimed should have been excluded, the error ought to be clear to warrant a reversal, and there ought to be reason to-believe the improper evidence affected the judge’s conclusions. More latitude may be allowed to discretion in receiving evidence when the judge sits without a jury, and amere possibility that his judgment may have been improperly biased by evidence not strictly admissible ought not to be conclusive reason for a reversal when substantial justice-appears to have been done. Greater strictness in the application of the rules of evidence will of course be required where testimony offered has been improperly rejected, especially where it was the oral testimony of witnesses, and its-exact bearing and extent cannot be seen and understood.
Much testimony was objected to on the trial in' the circuit court, but we think no error was committed in receiving it.. None of the rulings call for remark except those which relate to the reception of the evidence of the administrators in respect to matters which must have been equally within the knowledge of Horace Mower or Lyman Mower when living. The statute in force at the time of the trial, under which the objection to this evidence was taken, was that of 1875. Public Acts p. 184. It provided “That when a suit or proceeding is prosecuted or defended by the heirs, assigns, devisees, legatees, or personal representatives of a deceased person, the opposite party, if examined as a witness on his own behalf, shall not be admitted to testify at all in relation to matters wliicb, if true, must have been equally within the knowledge of such deceased person.”
The suit or proceeding contemplated by this statute is one in which heirs, assigns, devisees, legatees or personal representatives of a deceased person are parties on one side. In the proceeding before us the personal representatives of Horace Mower are parties on one side, and in a certain sense his heir or next of kin — the party, whoever it may be, entitled to the surplus, if any, in the hands of the administrator, — is the party on the other. But no evidence was given by the administrators, or either of them, relating to matters'arising before the death of Horace Mower, which might not be stricken from the record -without affecting the result. The evidence such as it was related to the partnership business and accounts, and the, facts testified to were rendered unimportant by the subsequent dealings between Sheldon and Lyman Mower. But this is not a proceeding in which the personal representative, heir, assignee or devisee of Lyman Mower is a party on either side. It is not a suit which concerns the estate of Lyman Mower. It is true that Calvin R. Mower, who appears to contest the allowances, claims a standing in court by virtue of being a beneficiary under the will of Lyman Mower, but that fact only accounts for his interest in the estate of Horace Mower, and is not otherwise important. It does not make the parties concerned in Lyman Mower’s estate the parties to this litigation.
We do not for these reasons consider ourselves called upon in this case to decide whether the statute above quoted is strictly applicable to the case of an accounting by an administrator, where the administrator is merely giving an account of his own doings as such. We agree that it cannot be so applied as to make the death of parties interested in the estate and the succession of others to their interests, operate to take from the administrator such right as before existed to explain under oath his official acts and doings. This is all there is occasion to say on the subject in this case.
IV. The fact that under the finding of the circuit judge -the administrators have twice had the benefit of certain allowances, we do not think is clearly made out by the record. If it is made out at all, it is only by inference and argument, and in argument something may be said on both sides. The question here is purely one of fact, and where the conclusion of the judge is not shown by the record to be manifestly wrong, and so opposed to other findings as to be erroneous in law, it must stand. Under this rule it must stand in this case.
V. With the allowances to the administrators for services we have nothing to do, provided there were facts in the case which fairly called for the exercise of judicial discretion. The probate judge or the circuit judge on appeal must determine, and not we, whether the case was so unusual as to entitle the administrators to a special allowance, and if so, to what extent. It is insisted here that the court acted wholly without authority in making an allowance for services ■of the administrators in settling up with the surviving partner of T. P. Sheldon & Co. We do not think so. The administrators had a duty to perform in that regard, and one of considerable responsibility. They had an important discretion to exercise, and they had authority to take a course much different from that which was actually adopted. They might, for example, have insisted on closing up the partnership business immediately. But whatever course was adopted by them the question of compensation must arise, and the probate court must judicially consider it. There was consequently no want of power in the action of the court in making the allowance it did, and we cannot overrule it.
It is proper to say that the amount allowed by the probate court was not increased, but somewhat reduced, in the circuit court.
No reason appears for disturbing the judgment, and it will be affirmed with costs, and the result certified to the circuit and probate courts.
Campbell and Marston, JJ. concurred. | [
21,
-14,
7,
-19,
7,
13,
3,
-39,
35,
-28,
-22,
-30,
0,
9,
3,
-28,
-20,
6,
-33,
-5,
24,
-44,
5,
-29,
38,
-7,
-22,
37,
25,
43,
51,
-22,
-34,
66,
-39,
20,
0,
45,
5,
-31,
3,
3,
30,
-36,
-9,
2,
15,
-30,
38,
-47,
-8,
-20,
2,
-13,
26,
-4,
0,
18,
-6,
-10,
25,
14,
39,
-31,
12,
82,
8,
-40,
9,
12,
0,
-27,
14,
12,
44,
11,
34,
7,
0,
-15,
16,
13,
44,
-36,
8,
4,
30,
-1,
44,
17,
-23,
21,
6,
46,
-9,
54,
-16,
53,
16,
26,
1,
-55,
2,
55,
-7,
-10,
6,
-21,
13,
-10,
1,
55,
25,
3,
-40,
15,
6,
-60,
-49,
-16,
-2,
0,
21,
-24,
-11,
26,
-57,
7,
15,
14,
0,
12,
-73,
-49,
-8,
-37,
-5,
-39,
-56,
-31,
16,
4,
-26,
-14,
17,
15,
-1,
11,
30,
-15,
9,
71,
-26,
-16,
30,
-2,
43,
-20,
23,
-55,
22,
-8,
52,
-73,
4,
22,
24,
-3,
-2,
19,
46,
9,
-37,
-9,
-24,
0,
10,
-17,
-10,
6,
-12,
-18,
50,
-8,
0,
-1,
16,
35,
30,
-11,
-12,
-11,
12,
12,
17,
-32,
-29,
7,
18,
0,
2,
-3,
45,
-16,
16,
-25,
26,
1,
-35,
24,
-8,
-22,
-24,
-47,
-62,
19,
-40,
7,
-3,
23,
26,
6,
-8,
-3,
-49,
-38,
-23,
-15,
-10,
6,
-25,
-1,
-19,
19,
12,
7,
-41,
-22,
-25,
-23,
-16,
0,
-47,
-22,
-19,
31,
23,
38,
-40,
18,
-40,
-6,
-21,
39,
0,
-15,
-13,
29,
-11,
-39,
-11,
48,
-46,
9,
18,
-7,
15,
-17,
60,
53,
2,
12,
40,
-39,
0,
-35,
-41,
-8,
-51,
-68,
16,
-8,
21,
41,
1,
-34,
2,
14,
-13,
-6,
6,
-21,
17,
-38,
19,
-2,
-38,
-13,
10,
-63,
-71,
14,
27,
3,
38,
30,
-14,
-5,
-6,
-1,
-3,
14,
-4,
-37,
47,
26,
-2,
35,
-20,
22,
13,
2,
-1,
4,
0,
41,
24,
-33,
19,
10,
14,
-26,
28,
4,
-34,
-9,
64,
-18,
13,
-26,
14,
59,
11,
-30,
26,
19,
12,
-17,
-11,
38,
-56,
22,
-1,
44,
-20,
41,
-11,
-13,
-35,
39,
0,
4,
61,
-14,
-17,
19,
-29,
6,
17,
-60,
19,
56,
-44,
-25,
2,
8,
-36,
-12,
-7,
10,
-17,
10,
-17,
-16,
36,
-3,
-57,
7,
8,
7,
-17,
34,
-32,
0,
-52,
17,
23,
-24,
-47,
-25,
30,
7,
2,
19,
3,
7,
-37,
-45,
-20,
-14,
46,
-48,
52,
8,
26,
-16,
-27,
-29,
28,
41,
24,
19,
-7,
-28,
-3,
-26,
19,
30,
12,
-30,
-40,
36,
-16,
-30,
11,
-5,
-27,
7,
7,
32,
-12,
14,
0,
3,
-55,
2,
1,
9,
86,
41,
-28,
1,
53,
18,
0,
-1,
22,
-28,
38,
-1,
65,
-5,
41,
-11,
7,
-14,
-4,
-3,
13,
37,
-95,
32,
-50,
-8,
1,
-26,
32,
-23,
9,
0,
6,
9,
28,
25,
-30,
-21,
-32,
2,
-12,
8,
4,
-25,
-9,
-59,
-13,
6,
-25,
-14,
-35,
-3,
5,
0,
19,
-7,
8,
-38,
-44,
-19,
44,
23,
-32,
-21,
29,
39,
6,
34,
30,
-18,
-9,
-20,
19,
-52,
-50,
11,
-10,
7,
31,
15,
38,
-3,
-2,
56,
-14,
2,
-19,
-5,
-16,
41,
25,
-28,
-58,
22,
0,
54,
-64,
-10,
-13,
-26,
-1,
-29,
-18,
-23,
5,
3,
-3,
18,
-5,
-43,
-9,
-1,
-27,
-42,
-19,
-37,
16,
-51,
-25,
-5,
13,
-6,
23,
16,
12,
35,
-8,
27,
-33,
-10,
12,
-37,
-12,
-20,
-2,
-55,
-42,
18,
-28,
66,
-15,
4,
-14,
1,
-30,
15,
20,
-16,
-5,
32,
3,
-6,
-43,
0,
-30,
-27,
-14,
47,
-15,
82,
-30,
-18,
13,
-39,
18,
-7,
-33,
4,
21,
2,
35,
-24,
-21,
33,
-21,
-21,
0,
30,
11,
34,
-5,
70,
0,
-35,
-24,
47,
-7,
-1,
-19,
21,
-34,
-11,
22,
-14,
23,
-37,
-20,
49,
0,
8,
59,
16,
-26,
4,
-3,
29,
-35,
-1,
56,
15,
-3,
15,
49,
-48,
6,
68,
49,
9,
17,
-14,
13,
-26,
35,
-6,
9,
12,
3,
-17,
15,
31,
-35,
18,
37,
-20,
-20,
-10,
-3,
0,
22,
27,
-30,
-6,
30,
-28,
-35,
-49,
-22,
18,
40,
-4,
15,
-24,
28,
21,
30,
55,
-35,
-22,
-39,
-2,
-10,
-64,
-3,
28,
-5,
2,
-39,
-13,
-17,
0,
15,
-33,
-31,
-35,
-28,
-55,
-36,
46,
27,
-3,
-2,
-27,
27,
1,
-9,
-22,
0,
19,
17,
-21,
10,
-39,
-3,
7,
-4,
52,
9,
-1,
28,
35,
-34,
49,
32,
11,
23,
0,
22,
-43,
-8,
-13,
-11,
-48,
-2,
25,
-21,
-17,
10,
48,
-56,
-21,
-8,
-7,
39,
2,
-18,
20,
-14,
2,
27,
24,
-22,
0,
39,
-7,
-40,
43,
-10,
-26,
38,
-48,
28,
52,
-6,
-27,
2,
-25,
-47,
15,
-4,
39,
43,
-26,
19,
21,
-23,
85,
3,
-14,
-7,
-2,
5,
13,
3,
-33,
-23,
-53,
-33,
-17,
7,
25,
-8,
-19,
-26,
-12,
39,
-27,
-43,
53,
18,
29,
-49,
18,
17,
-84,
-34,
-10,
72,
-2,
23,
28,
-26,
-41,
-17,
-10,
-25,
44,
23,
38,
-3,
-7,
-13,
5,
0,
-7,
2,
-9,
-37,
-16,
15,
-5,
42,
53,
7,
-2,
27,
2,
11,
28,
27,
47,
-15,
13,
24,
-3,
-44,
-49,
-17,
0,
49,
-29,
-32,
0,
-78,
9,
-18,
0,
20,
40,
38,
-39,
-16,
22,
-40,
9,
-7,
2,
-2,
-4,
-9,
-64,
30,
1,
-50,
-9,
-21,
13,
-31,
48,
0,
20,
18,
-3,
55,
-23,
-51,
-49,
-28,
36,
57,
7,
-10,
14,
-11,
-70,
-6,
15,
-20,
-15,
98,
-19,
-7,
24,
0,
2,
69,
5,
38,
-37,
5,
-2,
-59,
-5,
44,
24,
15,
33,
-20,
18,
30,
-5,
56,
1,
-31,
1,
18,
23,
-32,
35,
-36,
-8,
-42,
0,
-57,
-20,
13,
-27,
31,
69,
41,
7,
-37,
-26,
-14,
-32,
9,
2,
-18,
-10,
21,
1,
-34,
14,
-12,
-12,
-49,
72,
-17,
-17,
-38,
-17,
0,
3,
27,
-19,
-22,
-60,
23,
29,
-16,
51,
0,
-22,
1,
-12,
22,
60,
28,
11,
32,
86,
-8,
-3,
-32,
-6,
11,
21,
-9,
16,
-14,
-4,
22,
-57,
-33,
-31,
-45,
-9
] |
Campbell, J.
Damm filed his bill to have a deed corrected, which, as he claims, purported to convey an entire lot of 40 feet in. width, when he only sold 30 feet to defendant. The lot described in the deed is a lot fronting on Third street, Detroit, cornering on Orange street, and is one of three lots each of 40 feet in width, which were owned by Damm in February, 1S80, when the bargain was first discussed. Dainm’s house was built partly on this corner lot and partly on the next lot, leaving about 33 feet of the corner lot vacant, and leaving about three feet space between the house and the parcel which he claims was all that he sold to Moon. After the purchase Moon put up two buildings just covering the space of 30 feet. When the deed was, as complainant claims, discovered to be incorrect, Moon claimed that he was entitled to the entire lot, and refused to consent to any change in its terms, although he says he offered to reconvey the whole on payment for his improvements.
Upon a review of the testimony, we think that it leaves no ground to doubt the correctness of complainant’s claim. Moon denies any understanding that he was to have only 30 feet, but he does not pretend he supposed he was buying any part of Dainm’s house, and his testimony concerning his own acts is not calculated to strengthen the defence. The positive testimony not only of the direct agreement, but of corroborating circumstances, is very convincing that only a parcel of 30 feet in width of entirely vacant land was within the understanding of the parties. We think the view of the circuit judge, who saw and examined the witnesses himself, is justified by the testimony, and that he was right in decreeing a correction of the deed. It is objected that the wife of Moon was improperly joined as a defendant. We need not determine whether she was a necessary party or not. She has at any rate an inchoate right of dower in her husband’s lands, and this would be affected by the decree. She was properly joined.
The decree must be affirmed with costs.
Graves, O. J. and Cooley, J. concurred. | [
24,
48,
24,
-41,
-37,
-9,
32,
41,
-10,
40,
46,
26,
38,
41,
8,
8,
24,
22,
-15,
-24,
-32,
-31,
-62,
7,
-2,
20,
44,
-33,
-4,
4,
7,
18,
-13,
25,
6,
9,
15,
-29,
39,
-11,
21,
0,
3,
-48,
-10,
-5,
2,
-39,
9,
-40,
-40,
-29,
8,
-15,
-8,
-13,
-47,
17,
-25,
-37,
25,
-28,
-10,
1,
-5,
-6,
36,
-21,
25,
-6,
3,
-14,
29,
-37,
21,
-18,
19,
4,
-45,
-31,
25,
-37,
33,
5,
20,
-4,
35,
3,
-34,
20,
12,
-13,
33,
40,
4,
-3,
28,
29,
-16,
21,
-47,
31,
-16,
-21,
-1,
-6,
-70,
-22,
6,
15,
5,
-44,
24,
6,
-2,
-11,
-10,
0,
-5,
-25,
26,
-22,
-24,
-12,
-17,
-9,
-43,
-36,
-17,
-51,
20,
8,
-44,
11,
0,
-36,
-5,
29,
-4,
-11,
41,
11,
19,
-29,
-10,
21,
-38,
-14,
-11,
-67,
-62,
-5,
4,
18,
28,
-46,
-8,
-29,
44,
-27,
42,
-12,
-36,
31,
-57,
4,
-9,
14,
20,
11,
-20,
-50,
-33,
-30,
46,
7,
0,
26,
-6,
-36,
7,
13,
17,
-16,
38,
-15,
29,
-18,
-6,
-20,
3,
-2,
-34,
15,
12,
36,
-2,
-10,
9,
-16,
-21,
-67,
-53,
27,
-12,
-48,
33,
-16,
-4,
37,
-18,
6,
21,
-15,
-10,
-7,
26,
-7,
-29,
-6,
12,
-6,
-25,
5,
-46,
-30,
34,
17,
3,
22,
-35,
3,
13,
-25,
-2,
-2,
41,
26,
-20,
-18,
6,
10,
-25,
13,
1,
44,
9,
-7,
39,
44,
-44,
-2,
9,
-18,
0,
41,
-2,
18,
-22,
-22,
53,
33,
-17,
-12,
15,
-17,
16,
-26,
-15,
60,
-21,
8,
-11,
49,
-39,
-34,
-24,
24,
-24,
-10,
21,
-23,
-32,
26,
28,
49,
5,
44,
-21,
22,
26,
-35,
-43,
-17,
23,
42,
23,
-32,
18,
-7,
-14,
-5,
-6,
-2,
43,
-18,
26,
23,
29,
-2,
41,
-28,
11,
69,
-13,
13,
-11,
-32,
11,
6,
35,
5,
24,
29,
-12,
33,
43,
-68,
-33,
10,
2,
26,
-1,
-3,
31,
14,
37,
-31,
-44,
-60,
-2,
21,
18,
0,
36,
11,
-11,
14,
-21,
2,
-2,
-22,
-17,
16,
-26,
-9,
2,
-19,
-29,
31,
46,
32,
-22,
7,
-53,
-6,
-18,
-20,
33,
33,
30,
20,
-13,
27,
10,
25,
6,
-25,
-29,
38,
-23,
-22,
3,
52,
46,
38,
-39,
-71,
25,
23,
-69,
10,
5,
11,
0,
-67,
10,
17,
-46,
-44,
-6,
14,
-9,
1,
-43,
17,
-9,
16,
-20,
-1,
38,
-14,
-7,
-21,
-14,
-6,
11,
-19,
0,
14,
-6,
16,
2,
-9,
-15,
-26,
30,
-16,
10,
51,
-23,
-12,
19,
-23,
39,
8,
-26,
-26,
-32,
29,
26,
20,
-22,
13,
25,
20,
-19,
-22,
22,
-15,
33,
62,
-12,
6,
-9,
6,
21,
5,
25,
-40,
56,
-49,
5,
-79,
10,
-12,
7,
-40,
-8,
1,
2,
16,
35,
-9,
-4,
15,
19,
16,
-20,
-9,
-1,
32,
6,
31,
9,
-12,
-75,
-24,
-23,
9,
25,
-7,
27,
4,
2,
-1,
6,
3,
22,
5,
29,
22,
-22,
-7,
16,
-23,
-20,
-11,
9,
21,
1,
-32,
-15,
11,
-33,
51,
75,
-39,
28,
56,
39,
-45,
-10,
-31,
30,
38,
8,
35,
-2,
-39,
22,
8,
-39,
-5,
-21,
5,
-17,
12,
3,
-29,
-34,
43,
-2,
39,
-17,
48,
8,
-11,
7,
28,
-16,
-31,
-16,
-11,
-5,
34,
57,
-15,
14,
7,
-25,
39,
56,
2,
82,
-21,
29,
-67,
-19,
23,
-44,
0,
41,
-19,
0,
-52,
-8,
-22,
-33,
32,
-76,
-12,
38,
-1,
3,
-17,
10,
17,
6,
47,
-18,
-3,
6,
-13,
-55,
-10,
-19,
24,
-22,
26,
4,
-16,
-50,
-15,
-9,
-32,
-35,
-23,
-13,
-16,
-5,
9,
12,
-18,
9,
41,
-9,
-50,
25,
60,
31,
-7,
3,
-43,
0,
-29,
20,
-10,
-27,
34,
-50,
-29,
41,
39,
22,
-24,
12,
-19,
-36,
-30,
4,
25,
-57,
-10,
23,
36,
-45,
45,
7,
-21,
-22,
15,
10,
-25,
41,
-1,
18,
-36,
33,
14,
59,
-17,
-23,
18,
-29,
-30,
64,
2,
20,
-22,
-2,
-9,
31,
7,
27,
-2,
-11,
23,
50,
11,
1,
-10,
28,
-25,
25,
-52,
-5,
-31,
-6,
51,
-5,
5,
5,
-9,
-3,
6,
0,
3,
1,
12,
11,
8,
14,
4,
-6,
15,
27,
43,
-26,
-29,
34,
21,
-10,
-3,
-24,
30,
11,
20,
-16,
-22,
16,
-26,
23,
-36,
12,
-30,
28,
23,
1,
5,
37,
-24,
26,
11,
-34,
25,
-8,
17,
-22,
-7,
-46,
-3,
-26,
-41,
-6,
-52,
49,
-8,
-23,
19,
-2,
9,
46,
33,
-19,
-2,
-23,
20,
-26,
-29,
2,
-7,
-18,
-26,
9,
-30,
-14,
-24,
31,
-25,
-11,
-30,
-14,
-10,
-2,
-1,
1,
16,
74,
-27,
14,
-10,
-33,
1,
0,
-17,
24,
1,
54,
17,
2,
17,
-21,
12,
5,
1,
20,
-41,
-18,
-31,
-5,
27,
-6,
-13,
30,
0,
-72,
45,
3,
11,
27,
15,
9,
-33,
-12,
-25,
31,
13,
24,
20,
14,
21,
-28,
-24,
3,
18,
1,
1,
-24,
24,
31,
-12,
1,
45,
8,
-8,
0,
41,
20,
-45,
-2,
-13,
-46,
1,
28,
8,
-44,
11,
0,
-16,
-20,
21,
14,
-19,
-25,
-16,
-14,
-30,
14,
-10,
41,
0,
-27,
15,
29,
-21,
27,
10,
28,
-23,
0,
-5,
-18,
3,
6,
-10,
4,
-22,
32,
-5,
20,
11,
9,
17,
-41,
7,
38,
-2,
-39,
22,
9,
-7,
-45,
-5,
-12,
13,
-13,
-28,
2,
-13,
-13,
16,
-32,
36,
2,
-20,
-14,
58,
-16,
0,
18,
-59,
-39,
-31,
-44,
18,
-52,
-22,
6,
4,
17,
6,
-29,
-14,
-10,
-12,
-50,
14,
-33,
20,
4,
12,
-46,
18,
21,
-35,
11,
-6,
-10,
-5,
44,
-19,
-24,
31,
-10,
-7,
9,
-7,
6,
-18,
-5,
32,
17,
48,
-27,
25,
-50,
-59,
-63,
-19,
0,
9,
14,
-55,
23,
-12,
7,
35,
0,
-7,
13,
-17,
-24,
7,
21,
10,
23,
6,
-12,
-22,
6,
7,
-31,
28,
5,
-4,
63,
-9,
-40,
-59,
-11,
14,
20,
27,
-52,
-69,
-2,
40,
18,
-19,
-4,
6,
4,
0,
44,
-18,
30,
15,
0,
-38,
-67,
37,
48,
29,
-35,
13,
-23,
31,
17,
15,
22,
-39,
-37,
59
] |
Per Curiam.
Charles Paulman was convicted of breaking’ and entering and unlawfully driving- away an automobile on a plea of guilty. He appeals, claiming the trial court committed error in not advising him of his right to appointed counsel and not asking specifically if his plea was the result of a promise of leniency.
Upon arraignment, defendant was informed of his right to an attorney as follows:
“Q. Charles A. Paulman, I want to advise you that you are entitled to a trial by jury or if you prefer a trial before the court; you are also entitled to a lawyer to represent you and to handle your trial. Do you wish an attorney?
“A. No, sir,
“Q. Do you wish to plead to the case or do you wish a trial?
“A. I will plead guilty to the case.”
The court did not clearly inform defendant of his right to court-appointed counsel in the event of indigency. Gideon v. Wainright (1963), 372 US 335 (83 S Ct 792, 9 L Ed 2d 799, 93 ALR2d 733); People v. Hunn (1965) 1 Mich App 580; People v. Whitsitt (1960), 359 Mich 656; see GCR 1963, 785.3 (1).
Further, the judge’s statement that defendant was entitled to a lawyer to “handle your trial” indicated that defendant was not so entitled if he intended to plead guilty, which this defendant did. The right to counsel is not a right confined to representation during the trial on the merits. People v. Baker (1967), 9 Mich App 111, 113, 114; People v. Carson (1969), 19 Mich App 1.
Our conclusion obviates discussion of the other issues raised.
Reversed and remanded.
MCLA 1970 Cum Supp § 750.110 (Stat Ann 1970 Cum Supp § 28.305).
CL 1948, § 750.413 (Stat Ann 1954 Eev § 28.645).
GCR 1963, 785.3(2). | [
69,
3,
-28,
-34,
-15,
-23,
-4,
-18,
-34,
13,
28,
-28,
-41,
-11,
33,
-23,
-2,
28,
1,
23,
-14,
4,
38,
12,
-1,
-23,
52,
-1,
-14,
-11,
28,
20,
5,
-8,
-62,
41,
36,
-43,
5,
40,
4,
-8,
-21,
-15,
-43,
11,
9,
-11,
45,
-50,
26,
26,
-29,
-8,
7,
-35,
44,
29,
-30,
5,
0,
18,
-62,
-3,
-22,
-32,
31,
31,
-29,
-42,
-89,
-2,
36,
25,
54,
-1,
25,
-36,
52,
16,
36,
21,
34,
-43,
-4,
5,
3,
-55,
36,
-41,
15,
76,
-41,
-22,
47,
21,
34,
-24,
19,
-36,
1,
9,
24,
-32,
-7,
24,
-37,
-34,
51,
48,
44,
22,
2,
-21,
-62,
4,
-26,
-28,
35,
0,
4,
-45,
-6,
4,
23,
15,
-20,
-20,
7,
-6,
6,
33,
-39,
-39,
-14,
19,
-34,
-22,
41,
44,
-1,
-42,
34,
-14,
70,
-12,
-23,
12,
5,
75,
13,
64,
-21,
7,
-6,
-15,
13,
-21,
3,
60,
-23,
-12,
-67,
-45,
29,
36,
-35,
0,
11,
-53,
-1,
-20,
84,
33,
5,
-21,
-39,
44,
-34,
18,
-19,
20,
-35,
-21,
-4,
7,
-20,
27,
-9,
-23,
-5,
15,
4,
-44,
68,
3,
-14,
18,
3,
-15,
2,
-15,
-3,
-1,
56,
-41,
-36,
8,
9,
-56,
-46,
5,
-20,
-55,
29,
-21,
-45,
-40,
13,
17,
-36,
-47,
2,
-23,
-75,
7,
-8,
-9,
-22,
4,
19,
-20,
-50,
33,
-36,
23,
31,
-20,
26,
-20,
17,
25,
26,
-34,
-26,
9,
-12,
46,
-38,
-20,
16,
-21,
49,
-32,
-37,
11,
30,
9,
-33,
-29,
-11,
47,
-40,
32,
-23,
13,
-13,
-1,
-19,
-42,
-23,
-8,
14,
22,
-24,
28,
-20,
53,
22,
-44,
4,
2,
7,
6,
-14,
27,
-21,
-8,
20,
-3,
17,
-54,
44,
39,
9,
31,
8,
-7,
-62,
-26,
55,
73,
-70,
20,
23,
-30,
6,
4,
-36,
2,
0,
23,
2,
21,
6,
8,
-16,
-12,
10,
-19,
-13,
7,
11,
2,
28,
23,
34,
-37,
-7,
0,
8,
0,
-4,
11,
-24,
73,
10,
43,
11,
28,
17,
-23,
14,
-34,
28,
-38,
31,
46,
-29,
-2,
-30,
-16,
-17,
-18,
-7,
-47,
-32,
-36,
-41,
-34,
47,
-43,
37,
-1,
38,
26,
-39,
20,
16,
22,
-3,
-51,
-58,
-49,
-80,
-6,
52,
-21,
-53,
10,
-27,
-35,
31,
-20,
-3,
-22,
-60,
39,
-33,
40,
-19,
-41,
7,
-37,
-6,
22,
28,
31,
54,
17,
17,
-15,
14,
-9,
12,
5,
-39,
21,
7,
24,
-47,
62,
2,
112,
-12,
-55,
36,
-47,
-61,
-15,
-26,
-45,
29,
-5,
28,
83,
-2,
27,
12,
27,
48,
-54,
30,
-20,
48,
35,
-46,
-53,
30,
11,
7,
-7,
40,
43,
12,
-20,
-51,
-31,
0,
-15,
1,
20,
31,
-8,
-17,
3,
18,
59,
-27,
-14,
23,
-23,
-38,
-19,
53,
-67,
-45,
11,
-4,
11,
36,
-4,
-11,
-5,
-27,
29,
-42,
37,
18,
28,
29,
-33,
24,
-3,
-31,
-22,
-33,
-30,
-56,
-48,
-23,
27,
-5,
-10,
20,
-21,
-24,
-12,
-63,
13,
1,
4,
-10,
30,
17,
42,
41,
-22,
73,
-1,
-5,
44,
-18,
8,
45,
-55,
-22,
7,
-16,
24,
-23,
-30,
21,
-11,
18,
-15,
-23,
-22,
-20,
1,
68,
-28,
7,
35,
24,
38,
4,
-33,
16,
-3,
23,
31,
-18,
-35,
11,
30,
48,
-15,
82,
-16,
10,
-2,
-8,
-20,
3,
-1,
-59,
39,
39,
-14,
58,
23,
79,
57,
25,
0,
-51,
-22,
36,
0,
16,
4,
-22,
63,
-28,
-5,
5,
17,
24,
-52,
17,
8,
-46,
-43,
-20,
2,
-52,
-19,
38,
-46,
-64,
12,
29,
-25,
-67,
-34,
26,
-41,
37,
42,
18,
2,
-34,
-5,
14,
19,
41,
14,
-1,
-22,
50,
-55,
-22,
3,
-6,
-31,
-19,
27,
-7,
0,
28,
22,
-1,
9,
-2,
-57,
-38,
-24,
-4,
-53,
-3,
17,
-36,
-17,
0,
17,
15,
33,
6,
3,
-8,
16,
4,
-58,
30,
-35,
11,
8,
-38,
-17,
-4,
7,
0,
-21,
12,
-38,
-8,
22,
36,
6,
31,
-30,
-47,
-44,
15,
35,
-46,
-13,
16,
-1,
26,
-14,
20,
92,
-3,
27,
4,
27,
-7,
-16,
-64,
-64,
13,
-28,
-22,
-63,
24,
3,
40,
25,
0,
-6,
72,
-10,
-42,
28,
75,
29,
2,
-23,
-16,
-13,
31,
-14,
-10,
4,
23,
3,
-28,
-39,
0,
50,
-43,
1,
8,
30,
-55,
-8,
24,
70,
-8,
13,
-1,
-11,
43,
-14,
-25,
-44,
-4,
1,
38,
-36,
27,
-29,
16,
25,
43,
-36,
35,
11,
5,
41,
8,
-12,
-63,
4,
-18,
-47,
17,
0,
32,
-1,
15,
43,
-2,
43,
25,
-30,
-63,
43,
-57,
6,
-32,
-7,
-36,
74,
2,
21,
-52,
4,
-71,
8,
43,
-1,
-29,
44,
-3,
3,
37,
13,
-14,
2,
-4,
14,
11,
12,
11,
29,
-44,
-38,
74,
35,
-49,
34,
23,
-9,
32,
-24,
42,
20,
16,
3,
31,
-11,
12,
-51,
19,
120,
76,
-11,
21,
9,
-21,
3,
-38,
-5,
41,
20,
44,
2,
-32,
-17,
-6,
8,
-19,
1,
-1,
-40,
-29,
-37,
-30,
-16,
-12,
90,
-42,
15,
33,
-10,
-14,
22,
35,
-15,
-30,
27,
22,
38,
-21,
8,
14,
-6,
58,
-4,
-24,
-25,
-44,
-15,
14,
12,
0,
-24,
-25,
16,
18,
-13,
38,
-38,
-28,
-23,
23,
-59,
-10,
27,
43,
-6,
7,
59,
16,
-35,
-10,
21,
2,
27,
7,
-8,
11,
-24,
-10,
-64,
-86,
19,
28,
-1,
-34,
54,
-59,
9,
8,
-22,
-2,
-61,
36,
-46,
-2,
-1,
24,
4,
11,
42,
-33,
36,
5,
30,
24,
-24,
-9,
-10,
-12,
15,
24,
23,
-37,
35,
-4,
16,
-5,
-54,
-14,
-9,
-33,
-2,
-9,
32,
37,
-30,
50,
-23,
39,
-29,
-55,
-23,
0,
38,
-45,
1,
-27,
14,
-20,
-21,
11,
-2,
-72,
-73,
4,
26,
38,
-3,
-3,
15,
-11,
54,
-62,
-28,
4,
-22,
-15,
-8,
-35,
-16,
-9,
16,
8,
-1,
-2,
8,
-15,
-31,
6,
-37,
32,
-45,
-30,
-45,
10,
22,
-1,
0,
-24,
17,
-39,
-71,
39,
-41,
0,
39,
-23,
39,
-3,
-27,
13,
-13,
-9,
37,
67,
32,
-22,
19,
-21,
30,
-53,
-27,
8,
7,
28,
-39,
-42,
-9,
-7,
-20,
0,
-10,
-35,
51,
-1,
34
] |
Per Curiam.
On December 1, 1965, Jack L. Hanner’s house caught fire. The fire originated in the basement of the house. It spread, melted a gas meter located in the basement, and, as a result, gas escaping from the meter fed the fire. Unable to terminate the flow of gas, fire department officials at the scene contacted the Michigan Consolidated Gas Company and requested that the main outside the house be shut off. A street crew was dispatched and the gas service was terminated. The house was completely destroyed, however.
Alleging undue delay in termination of the gas service, plaintiffs commenced suit against the gas company. It was claimed that defendant’s negligence resulted in increased damage to the house. Trial was to the court, sitting without a jury. The trial judge found as a fact that defendant was not negligent, as alleged, and entered a judgment of no cause of action. On appeal, the sole issue presented is whether the trial court clearly erred in concluding that defendant was not negligent. GCB. 1963, 810 (2).
At trial, it was plaintiffs’ theory that the street crew, after arrival at the scene, failed to locate, expose, and cap the gas line in a reasonable time. The testimony of one witness, a fire department official, was offered to substantiate plaintiffs’ claim. Testimony offered by defendant, however, tended to show that the task was performed by the street crew in less time than normally required. According to defendant’s evidence, corroborated by its dispatch records, the service crew arrived at the scene at 2:30 a.m. and service was terminated at between 2:53 a.m. and 2:55 a.m. — an elapsed time of 23 to 25 minutes. A witness for defendant testified that performance of the task at hand normally required 30 to 40 minutes.
In light of the above testimony, the trial court could properly conclude that defendant was not negligent.
Affirmed. Costs to appellee. | [
-23,
37,
0,
17,
36,
-19,
1,
8,
16,
36,
47,
4,
40,
-39,
-1,
-62,
22,
20,
2,
-49,
-19,
-31,
4,
1,
-27,
-27,
15,
-47,
-8,
58,
40,
-29,
-7,
-37,
-31,
-12,
23,
29,
-27,
17,
30,
-4,
58,
-57,
-12,
-27,
-10,
44,
-6,
51,
18,
14,
33,
-13,
-2,
-17,
-4,
44,
-57,
28,
34,
-16,
14,
0,
19,
37,
-1,
-21,
-37,
37,
-21,
17,
-3,
-29,
47,
32,
7,
19,
-18,
13,
-30,
4,
43,
-22,
7,
-23,
-25,
-20,
-63,
-12,
-19,
4,
-32,
30,
-17,
-3,
-35,
3,
26,
29,
-14,
14,
-8,
18,
-75,
-27,
-41,
-69,
-39,
-31,
-36,
15,
-38,
-27,
-20,
1,
28,
6,
15,
61,
30,
-6,
33,
-29,
-18,
19,
-12,
-1,
11,
-13,
-30,
14,
-1,
25,
2,
0,
27,
-26,
52,
7,
-33,
-35,
-9,
8,
-32,
-18,
-5,
15,
-11,
-15,
-39,
18,
-31,
-30,
-19,
20,
17,
-50,
31,
-26,
44,
-44,
-15,
35,
-11,
-17,
0,
21,
-30,
-24,
16,
-59,
25,
-13,
90,
-3,
11,
-45,
-40,
-7,
-10,
-10,
13,
38,
39,
18,
-6,
2,
-8,
-9,
17,
-5,
-38,
-10,
-31,
53,
41,
62,
23,
-10,
12,
-28,
-13,
-58,
16,
26,
8,
17,
65,
-13,
-7,
75,
-25,
-29,
-54,
0,
18,
-29,
-23,
-56,
0,
-26,
-2,
-11,
-24,
-24,
-18,
-30,
68,
12,
-5,
-29,
0,
-11,
-8,
11,
3,
-22,
29,
0,
48,
-7,
-12,
38,
45,
10,
-17,
-43,
-3,
-4,
-31,
-25,
29,
21,
32,
14,
-21,
18,
-19,
17,
24,
10,
-56,
10,
26,
30,
-26,
-11,
-20,
34,
-45,
11,
9,
27,
-52,
-54,
-2,
16,
0,
-4,
3,
-7,
-60,
7,
0,
36,
22,
-14,
-8,
-23,
13,
-39,
-4,
7,
15,
9,
15,
24,
0,
-25,
-11,
-21,
-10,
8,
-2,
12,
-16,
5,
-2,
34,
27,
32,
-8,
57,
29,
-32,
-23,
10,
-24,
-32,
28,
-25,
-28,
-24,
-54,
-18,
10,
-13,
-11,
28,
21,
47,
-20,
51,
-4,
-7,
35,
38,
22,
-3,
-18,
11,
5,
19,
25,
28,
74,
3,
-26,
-46,
-13,
-19,
25,
12,
-13,
-5,
12,
-11,
-62,
75,
12,
-33,
-27,
36,
-5,
-15,
32,
-32,
-27,
30,
-8,
-65,
-25,
12,
-25,
3,
-2,
18,
-60,
58,
0,
-62,
9,
-33,
10,
13,
13,
0,
-44,
44,
7,
-47,
12,
-8,
-26,
-9,
-17,
0,
-5,
12,
36,
-7,
-10,
-5,
-13,
-53,
-53,
8,
30,
14,
-3,
-23,
-1,
-13,
-45,
4,
49,
6,
21,
-28,
40,
-16,
7,
9,
4,
-61,
-31,
41,
-9,
16,
34,
14,
-7,
-21,
0,
34,
-20,
-58,
-59,
28,
-27,
-12,
-19,
6,
12,
30,
14,
0,
37,
39,
-1,
13,
49,
45,
-25,
30,
13,
-28,
52,
26,
-29,
-22,
22,
14,
-29,
-5,
5,
-6,
21,
-20,
-19,
-9,
-5,
-9,
-8,
5,
-1,
-7,
-26,
10,
-11,
13,
-7,
-16,
-4,
-16,
22,
17,
32,
12,
43,
35,
-30,
-28,
-19,
30,
-12,
-18,
-4,
-32,
-33,
-31,
-13,
-36,
16,
-33,
34,
-4,
1,
-6,
-22,
9,
63,
16,
2,
24,
27,
22,
7,
27,
-79,
-24,
-25,
-7,
-60,
-14,
-20,
-37,
2,
-68,
39,
-29,
-12,
82,
-59,
-13,
-16,
9,
7,
-36,
-21,
42,
19,
8,
9,
14,
-32,
0,
-66,
41,
19,
-31,
-29,
-7,
-13,
13,
17,
5,
9,
38,
-1,
31,
49,
-24,
39,
-6,
2,
12,
31,
-52,
-7,
27,
25,
-18,
12,
-26,
-20,
17,
-61,
-4,
-37,
12,
5,
-21,
-28,
-37,
-6,
-2,
0,
38,
-16,
49,
8,
-14,
23,
22,
-15,
-35,
14,
-3,
-14,
-19,
-36,
5,
39,
5,
-30,
-46,
3,
-6,
41,
4,
-65,
-16,
-3,
-6,
-32,
-30,
50,
-9,
19,
-16,
-11,
12,
-9,
-12,
4,
14,
-46,
-46,
-47,
39,
-22,
-31,
35,
-28,
78,
12,
-28,
15,
-11,
-26,
10,
-22,
-36,
12,
2,
32,
-4,
-22,
23,
5,
-2,
27,
0,
13,
-1,
-44,
18,
-60,
-21,
-14,
15,
0,
-59,
6,
33,
-46,
-38,
34,
-5,
-3,
22,
51,
-12,
19,
-19,
-12,
24,
7,
5,
-24,
40,
-5,
16,
-7,
33,
25,
48,
-36,
-27,
-1,
-4,
74,
62,
22,
3,
12,
40,
-40,
-9,
-18,
-13,
17,
-44,
30,
41,
-43,
53,
-5,
9,
25,
31,
-5,
6,
-18,
-6,
-30,
-39,
0,
23,
-44,
19,
1,
-12,
-51,
14,
-2,
-23,
-86,
-41,
-16,
-20,
37,
-20,
8,
-17,
-8,
-8,
-42,
-6,
20,
60,
19,
-30,
-28,
26,
-45,
47,
-26,
-22,
4,
30,
-16,
40,
16,
17,
2,
-44,
11,
80,
-32,
18,
-35,
1,
0,
43,
-15,
-26,
-49,
13,
23,
5,
-15,
0,
70,
-27,
-49,
52,
12,
3,
-28,
17,
-10,
16,
-19,
11,
37,
13,
34,
27,
34,
17,
-30,
-23,
23,
-14,
1,
25,
-10,
36,
15,
45,
-19,
-11,
-8,
-20,
37,
21,
-21,
33,
-46,
30,
-18,
40,
41,
-8,
11,
-4,
39,
-7,
29,
-14,
-9,
31,
13,
-2,
-34,
36,
-23,
46,
-66,
8,
25,
-18,
-11,
10,
29,
14,
7,
0,
11,
-23,
13,
-19,
-42,
-23,
18,
17,
56,
-10,
7,
4,
41,
42,
-11,
-4,
28,
31,
0,
-5,
14,
-28,
4,
45,
-15,
-59,
44,
36,
-18,
-12,
-48,
-33,
-41,
-24,
-13,
-31,
-13,
87,
-20,
-17,
2,
12,
15,
23,
-33,
-12,
-29,
-30,
74,
37,
-15,
-25,
34,
-16,
16,
0,
-1,
-18,
-21,
-23,
0,
13,
12,
13,
25,
-25,
-76,
-56,
22,
20,
31,
-23,
7,
23,
67,
-10,
8,
2,
-16,
-37,
-2,
2,
-47,
12,
-6,
-7,
-3,
-6,
35,
-12,
-51,
26,
29,
48,
-44,
28,
-27,
16,
-2,
-71,
-11,
12,
40,
10,
25,
32,
-50,
-18,
75,
-5,
34,
-17,
24,
6,
38,
-40,
-5,
-23,
-30,
-32,
11,
26,
9,
33,
-28,
-3,
39,
-66,
-23,
33,
0,
7,
5,
-1,
-17,
-1,
19,
-63,
4,
-16,
-45,
-7,
-22,
6,
-11,
-22,
-40,
-18,
2,
7,
1,
16,
15,
-7,
-9,
-8,
-7,
37,
8,
35,
26,
-28,
3,
91,
13,
4,
-2,
2,
25,
-48,
5,
73,
-17,
31,
7,
-43,
20,
-2,
-14,
42,
1,
9,
24
] |
Per Curiam.
On March 20, 1969, defendant Gary Butler stood mute at his arraignment on a charge of possession of a stolen motor vehicle in violation of MCLA § 257.254 (Stat Ann 1968 Rev § 9.1954). Shortly thereafter, a second count was added, to wit: unlawfully driving away an automobile. Defendant pled guilty to the second count on May 7, 1969.
The sole issue raised on appeal concerns the propriety of the actions of the trial court in light of the constitutional requirements in accepting a guilty plea as outlined in the case of Boykin v. Alabama (1969), 395 US 238 (89 S Ct 1709, 23 L Ed 2d 274). Defendant contends that the Boykin decision requires a trial judge to obtain a waiver of the privilege against self-incrimination, the privilege to trial by jury and confrontation by one’s accusers prior to accepting a guilty plea.
Since defendant entered his plea on May 7, 1969, and Boykin was decided on June 2, 1969, the later decision does not affect the outcome of the present case. This Court has definitively stated that Boykin does not have retroactive application. See People v. Taylor (1970), 23 Mich App 595.
At present, procedure for accepting guilty pleas is governed by GCR 1963, 785.3, and MCLA § 768.35 (Stat Ann 1954 Rev § 28.1058). A court is required to inform the accused of the nature of the accusation and the consequences of his plea. The court is also required to examine the accused for purposes of determining if the plea was freely, understandingly and voluntarily made, the form and manner of this examination being within the discretion of the trial court. See People v. Barrows (1959), 358 Mich 267; People v. Gill (1967), 8 Mich App 89; and People v. Schwartz (1967), 6 Mich App 581.
The record in the present case indicates that the above requirements were satisfied and nothing exists which would show that the plea was not knowingly and voluntarily made or that defendant did not know the nature of the charge or the consequence of his plea. Nothing in the briefs or record persuades this Court that a miscarriage of justice has taken place.
Affirmed.
MCLA § 750.413 (Stat Ann 1954 Rev § 28.645). | [
15,
51,
-13,
28,
-38,
-9,
0,
-26,
-67,
8,
23,
-15,
4,
5,
-2,
-5,
26,
18,
26,
-22,
16,
-19,
10,
35,
9,
-26,
33,
34,
-17,
-13,
5,
34,
4,
-31,
-41,
-20,
49,
17,
-9,
27,
26,
17,
-49,
-24,
-20,
-24,
-17,
1,
67,
9,
25,
-23,
-36,
4,
-41,
-6,
57,
15,
76,
18,
-16,
36,
-40,
-13,
-21,
-44,
-3,
21,
-3,
-45,
7,
8,
-4,
-25,
-38,
-1,
5,
22,
44,
44,
26,
26,
53,
-18,
23,
-28,
10,
-23,
2,
-18,
-18,
33,
-35,
-13,
22,
-1,
26,
-29,
33,
-36,
-42,
-24,
14,
-7,
29,
33,
-21,
-28,
-1,
3,
18,
-3,
-8,
-28,
-61,
-36,
-15,
-2,
-19,
-44,
42,
-1,
26,
53,
-30,
-20,
-4,
-34,
4,
-4,
-5,
47,
26,
4,
17,
15,
6,
-10,
28,
39,
6,
-47,
29,
16,
33,
-11,
-34,
34,
64,
8,
7,
88,
-19,
3,
11,
-14,
-18,
-47,
-16,
25,
-8,
1,
-43,
-34,
-6,
-17,
-59,
22,
1,
-27,
-22,
-54,
67,
19,
13,
-52,
2,
11,
-28,
-3,
-21,
1,
17,
13,
-4,
34,
40,
4,
-49,
-74,
0,
-12,
17,
-17,
16,
55,
-12,
-6,
-28,
0,
13,
-20,
46,
-7,
16,
-4,
6,
-1,
-19,
0,
-67,
-52,
15,
-26,
-6,
-37,
22,
6,
-5,
38,
-30,
-28,
14,
-24,
-19,
18,
27,
13,
7,
27,
28,
-9,
-11,
42,
-44,
18,
-11,
-40,
50,
4,
-21,
-14,
42,
3,
4,
2,
4,
9,
-44,
-9,
15,
16,
-12,
-28,
-40,
-7,
26,
-4,
-27,
-10,
-2,
39,
-42,
0,
-51,
-9,
-23,
-42,
-31,
-47,
-38,
-16,
11,
18,
-18,
-11,
17,
-11,
-23,
-6,
17,
-24,
15,
28,
-43,
29,
-18,
35,
6,
-5,
-6,
-30,
-35,
12,
17,
9,
-1,
0,
-83,
-10,
45,
-13,
12,
-12,
-8,
-15,
33,
-7,
-4,
-2,
-1,
-24,
12,
-15,
11,
-3,
-12,
2,
44,
0,
-61,
-33,
11,
-4,
15,
-6,
15,
-46,
-3,
-30,
26,
25,
30,
26,
14,
0,
20,
20,
-14,
61,
-18,
-25,
-4,
-23,
49,
-5,
-6,
25,
-67,
-23,
-24,
-22,
-10,
-23,
-16,
-54,
-8,
-40,
-22,
-36,
27,
-22,
-41,
28,
14,
-18,
13,
12,
-24,
32,
33,
-47,
-10,
18,
-9,
-11,
36,
-33,
-1,
32,
-69,
-17,
-23,
-36,
22,
-26,
-8,
12,
-55,
28,
-53,
-28,
-1,
22,
16,
-32,
-3,
37,
19,
11,
5,
-18,
20,
8,
0,
-19,
-8,
10,
34,
8,
-62,
0,
18,
58,
-9,
-26,
10,
-10,
4,
-47,
-19,
-6,
25,
-57,
12,
31,
8,
6,
-23,
-1,
22,
-22,
22,
-21,
40,
53,
-21,
-9,
43,
19,
29,
-9,
-42,
0,
26,
-6,
-9,
6,
-17,
52,
61,
4,
36,
-20,
-25,
41,
-19,
-6,
-38,
-8,
-9,
-12,
-45,
8,
39,
-54,
-46,
7,
10,
0,
40,
21,
0,
34,
-14,
-4,
16,
26,
39,
3,
10,
-15,
0,
-9,
-26,
-21,
-8,
-38,
22,
0,
-1,
5,
-1,
4,
-20,
23,
-7,
-27,
-37,
2,
8,
22,
5,
12,
50,
-29,
-35,
-47,
14,
-23,
31,
18,
-17,
0,
-8,
-17,
-18,
1,
30,
34,
4,
-13,
8,
-36,
-16,
-4,
-40,
-60,
5,
3,
56,
36,
-19,
-11,
0,
-15,
-26,
-63,
3,
-47,
67,
54,
-7,
-20,
16,
-33,
1,
-2,
17,
-11,
10,
-7,
-17,
-33,
23,
-39,
-6,
40,
-16,
15,
-55,
-4,
99,
45,
12,
-10,
-60,
-32,
49,
0,
-3,
84,
-19,
-4,
-19,
26,
31,
-19,
-4,
-15,
27,
59,
-19,
-30,
-26,
-17,
-15,
11,
13,
-43,
-20,
-15,
-2,
-33,
16,
20,
-20,
-50,
-45,
-10,
54,
0,
-70,
17,
35,
15,
-10,
19,
-32,
6,
50,
-1,
-34,
-2,
-19,
-27,
8,
-11,
0,
18,
-49,
-2,
-1,
-17,
37,
-51,
-29,
11,
-12,
-37,
17,
34,
-20,
17,
17,
-31,
-43,
-7,
1,
-16,
-13,
56,
-17,
-2,
74,
-5,
2,
39,
-15,
-48,
-20,
15,
-3,
-32,
15,
-14,
-22,
45,
27,
-29,
39,
-8,
-36,
-19,
-21,
38,
32,
-39,
21,
12,
7,
-6,
34,
15,
42,
58,
-33,
2,
30,
-5,
-59,
-69,
-38,
-60,
-4,
-57,
-10,
-23,
11,
-14,
-19,
-2,
56,
-29,
38,
0,
44,
-11,
-25,
37,
-19,
-12,
6,
-2,
-19,
27,
22,
-13,
36,
-16,
-55,
36,
-34,
32,
18,
29,
-37,
11,
-27,
12,
7,
34,
-1,
-28,
-2,
44,
34,
-28,
-10,
-5,
21,
16,
32,
28,
8,
20,
-22,
-14,
0,
51,
-28,
21,
-27,
-29,
-23,
-16,
-30,
25,
21,
45,
27,
-5,
30,
68,
-37,
62,
47,
-26,
-42,
-8,
-17,
59,
-11,
-48,
-25,
60,
0,
0,
48,
17,
-60,
-68,
9,
-12,
-46,
33,
-60,
12,
21,
-56,
28,
-1,
-6,
0,
23,
-19,
2,
26,
0,
20,
30,
44,
22,
30,
44,
-4,
-24,
3,
7,
28,
33,
29,
18,
-2,
-14,
-11,
17,
10,
48,
-8,
26,
3,
7,
-29,
11,
-41,
45,
-12,
21,
-14,
16,
25,
-46,
-20,
-10,
-21,
-23,
-4,
13,
-22,
10,
-14,
25,
15,
-28,
16,
39,
-6,
-29,
40,
18,
14,
11,
23,
-3,
57,
0,
-40,
91,
37,
17,
3,
-26,
23,
-30,
0,
-12,
25,
1,
13,
6,
35,
-58,
-32,
5,
38,
30,
6,
47,
-28,
-23,
-2,
63,
-20,
-3,
-13,
-13,
18,
-22,
-34,
-44,
-2,
75,
-1,
43,
-3,
8,
-94,
-61,
-20,
19,
57,
-20,
29,
3,
-21,
-32,
-26,
3,
-20,
16,
13,
20,
-12,
41,
-2,
23,
45,
-41,
29,
10,
-6,
37,
50,
16,
-33,
-50,
-10,
59,
-23,
25,
-2,
-17,
53,
-14,
-23,
-37,
-16,
-72,
14,
22,
-15,
-34,
-89,
89,
-9,
43,
-11,
2,
2,
-10,
8,
-42,
2,
-64,
48,
-52,
-2,
-5,
50,
-4,
-30,
-43,
9,
2,
35,
-11,
24,
8,
5,
-4,
17,
-11,
-19,
51,
35,
-33,
-37,
3,
73,
23,
3,
-18,
-30,
47,
16,
10,
43,
-9,
-14,
-4,
-39,
-39,
21,
16,
-16,
51,
-16,
-35,
-48,
-1,
6,
14,
-19,
15,
22,
30,
-30,
-32,
6,
-25,
32,
23,
7,
-25,
-11,
3,
-19,
-17,
7,
31,
26,
-14,
-58,
-66,
36,
46,
22,
-5,
57,
-24,
29,
-50,
9
] |
Danhop, J.
Plaintiff filed a complaint seeking to set aside a redemption agreement executed by plaintiff’s deceased and defendant airlines on the basis of fraud. Subsequent to the filing of the initial complaint a motion for summary judgment was filed on behalf of defendants, which was granted but the trial court allowed the plaintiff to file an amended complaint, Avhich was done on August 12, 1968. On August 29, 1968 another motion for summary judgment was filed and by written opinion on September 20, 1968 the trial judge granted the motion for summary judgment. The order of dismissal was signed and filed on September 25, 1968. Plaintiff appeals the entry of this order.
It is Avell-settled that in determining* the propriety of a motion for summary judgment, for failure of the complaint to state a claim upon which relief can be granted, every Avell-pleaded allegation in the complaint is assumed to be true by both the trial court and the appellate courts. Bielski v. Wolverine Insurance Company (1967), 379 Mich 280; Hiers v. Detroit Superintendent of Schools (1965), 376 Mich 225.
The pleaded facts indicate that on February 1, 1960 plaintiff was injured while in the employment of Capital Airlines, Inc., a company subsequently merged and now a part of United Airlines, at Flint, Michigan. From February 1, 1960 to February 11, 1960 plaintiff was hospitalized at McLaren Hospital, Flint, Michigan under the care of Dr. Donald Brasie, a medical doctor to whom plaintiff was referred by his employer, Capital Airlines, Inc., and whose services were paid for by the employer’s workmen’s compensation insurance carrier, Liberty Mutual Insurance Company. On March 8, 1960 a notice of dispute of the plaintiff’s claim was filed by the defendants with the state of Michigan workmen’s compensation department. On or about March 24 plaintiff retained his own attorney, Mr. Robert J. MacDonald, to represent him in the workmen’s compensation claim. On or about March 24 plaintiff was examined by his personal physician, Dr. Burt A. Parliament of Flint, Michigan. On April 19, 1960 Dr. Parliament gave a detailed medical report to the plaintiff’s attorney, Mr. MacDonald. On June 6, 1960 Dr. Parliament furnished plaintiff’s attorney, Mr. MacDonald, with a further medical report of the plaintiff. On July 29, 1960 an agreement to redeem the liability was entered into by and between the plaintiff, the plaintiff’s attorney, and attorneys for the defendants, on the required form furnished by the workmen’s compensation department. On August 4, 1960 a hearing on the redemption was had and testimony taken before James W. Nolan, hearing referee of the workmen’s compensation department. A copy of this transcript on the redemption hearing was attached to and made a part of the plaintiff’s complaint.
The agreement to redeem the liability which plaintiff signed on July 29,1960 stated in part:
“Plaintiff claims that he is still disabled because of the injury sustained on February 1, 1960. Defendants dispute this.
“Plaintiff, rather than litigate this matter, has offered to settle his claim for any and all compensation benefits of every nature for $2000. Defendants agree to pay the sum of $2000 in full settlement of all liability pursuant to the workmen’s compensation act of Michigan. It is specifically understood and agreed that this redemption is intended to cover any medical expenses which plaintiff may have incurred or may incur in the future.
“Plaintiff adopts and accepts the medical reports attached hereto.”
A full redemption based upon the above agreement was approved by the workmen’s compensation referee on August 4, 1960.
The injury complained of was the result of a fall from an airplane loading stand, when plaintiff allegedly landed on his head and shoulders. He was hospitalized for a short period under the care of the doctor recommended by the defendant, Capital Airlines, Inc. and paid for by the compensation carrier, defendant, Liberty Mutual Insurance Company. Plaintiff received further medical treatment at a clinic in Washington D. C. to which he was sent by defendant. On March 8, 1960 the liability of the plaintiff’s claim was disputed on the basis of diabetes. In addition to diabetes, plaintiff was the vie tim of arthritis and high blood pressure. After the dispute was filed plaintiff retained his own counsel to represent him in his claim, and also was examined by his own personal physician. The testimony taken at the redemption hearing as shown by the transcript, made a part of the plaintiff’s complaint, indicates that plaintiff accepted the settlement upon the recommendation of his attorney and physician.
“Referee: You feel that if you took this settlement and went back home, why, maybe some of these worries and problems that you have around here would leave, and insofar as the diabetes is concerned, that could level itself off?
“A. That’s what my personal physician recommended, as far as the diabetes.
“Referee: All right, Robert.
“Mr. MacDonald: This started out as an argument regarding whether this was an idiopathic fall in which he had had a diabetic attack or whether he actually fell. It would be disputed on trial. Our contention is that he had an actual fall and he did not have any attack of diabetes.
“Dr. John Benson who is his personal physician treating him for the diabetes indicates and would so testify that he thinks it was not a fall due to a diabetic attack. On the other hand, Dr. Benson does not feel that his diabetes was aggravated or exacerbated to an extent it would do anything more than a temporary problem.
“Now, I have gone over this with Mr. Johnston in great detail and I have talked to Dr. Benson three times now. Dr. Parliament’s report [sic] are on file regarding the back injury. This is strictly a compromise. I have gone into it and he is packed to go, and as I understand, you believe that there is available a job working in a motel in your—
“A. Well, that’s not definite, Mr. MacDonald.
“Mr. MacDonald: In other words, yonr father did tell you that he thought that this was available when you arrived?
“A. It might be available when I get there.
“Mr. MacDonald: Yes. I feel this is a good solution to this. The problem in this case really that has been upsetting Mr. Johnston is not so much the injury or things that have occurred as a result of this fall, but the fact that the air lines let him go after seven years or so of service. It is true that he had had diabetes and it apparently is also true that he did on his application when hired in not state that he had had diabetes at one time. That is another matter with which the department can’t concern itself here.
“As I understand, he has opportunities in the East and this has been on his mind and he is anxious to leave. I think it is a good solution to what is a difficult problem.”
Plaintiff accepted the award and moved to the State of New York. Some years later, he learned from New York doctors that he had a disc condition. On August 11, 1967 plaintiff filed his original complaint to set aside the redemption order entered by the workmen’s compensation department on the basis of fraud and constructive fraud.
A redemption order is a final determination and an award made and accepted cannot be disturbed except upon a showing that it was procured by fraud. Panozzo v. Ford Motor Co. (1931), 255 Mich 149; Catina v. Hudson Motor Car Co. (1935), 272 Mich 377.
Fraud is an intentional perversion or concealment of the truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right. Black’s Law Dictionary, 4th Ed.
Assuming as we must, all well-pleaded allegations of fact to be true, we must now ascertain whether from the complaint filed and the record there was fraud committed on the plaintiff. This we do not find. There is no allegation that defendants’ employees or any doctor hired by the defendants advised the plaintiff to accept the compensation settlement. There is no allegation that anyone had any knowledge of any more serious injury to the plaintiff than a neck or back strain. Plaintiff contends that defendants’ doctors with reasonable diligence could have, or should have, discovered the disc condition, and that failure to do so amounts to fraud. Plaintiff’s conclusion is erroneous. Under the circumstances the best that can be stated is a charge of negligence and negligence is not fraud. Negligence is founded upon the failure to use due care, while fraud requires an intentional perversion or concealment of the truth and reliance thereon.
A motion for summary judgment under GCR 1963, 117.2(1) may be granted only where it appears on the face of the challenged pleading that the pleader cannot recover. Major v. Schmidt Trucking Company (1968), 15 Mich App 75, 78.
From a careful reading of the amended complaint it affirmatively appears that the plaintiff’s allegations are based upon negligence rather than upon intentional perversion or concealment of the truth. Thus, the trial court was correct in determining that the amended complaint failed to state a claim upon which relief could be granted and properly granted defendants’ motion for summary judgment.
The second issue raised alleging fraud is that the defendants did not approve more x-rays at the request of plaintiff’s doctor. The claim of the plaintiff was disputed because of diabetes and plaintiff’s statement, “I don’t know what happened, I guess I must have slipped.” After contesting the liability the defendants owed no further duty to the plaintiff, his counsel, or plaintiff’s physician, to authorize or pay for additional medical expenses. The failure of defendants to order x-rays at the request of plaintiff’s doctor does not establish fraud on the part of the defendants. It is evident from the record made at the redemption hearing that neither plaintiff nor his attorney deemed this to be a necessity.
Plaintiff contends further that the statute in effect at the time of the occurrence (CL 1948, § 412.22 [Stat Ann 1960 Rev § 17.172]) required weekly payments of compensation benefits for not less than six months before entering into a redemption agreement. He claims that the lump sum payment prior to settlement negotiations was in violation of the existing statute and therefore the department had no jurisdiction to enter the redemption award. Plaintiff’s authority, Donald Bowe v. American Motors, 1959 WCABO 112 and Ethel Carter v. General Motors Corporation, 1959 WCABO 177, are not persuasive. These cases hold only that payments must be made at the proper rate. There is no allegation that the defendants did not compute the compensation to be paid at the proper rate, and the report filed with the workmen’s compensation department shows that the decedent was in fact paid a compensation rate of $33 per week for 26 weeks amounting to $858, that a redemption in the amount of $2000 was added thereto, making a total award of $2,858.
Compromise settlements and redemption are favored in the law. See Johnson v. Nationwide Life Insurance Company (1967), 7 Mich App 441, and Wehmeier v. W. E. Wood Company (1966), 377 Mich 176.
Plaintiff has advanced no legal argument or sufficient authority to overcome the procedure utilized in this case effecting the final redemption.
The opinion and order of the lower court granting defendants’ motion for summary judgment is affirmed.
All concurred.
Plaintiff refers to plaintiff’s decedent when circumstances of injury, treatment and compensation settlement are discussed.— Reporter. | [
-5,
-64,
3,
44,
30,
-12,
3,
-95,
4,
33,
20,
-28,
15,
20,
-24,
-17,
14,
-8,
-9,
-43,
-42,
-72,
30,
-14,
18,
-13,
-7,
-51,
40,
-14,
-24,
16,
-16,
-34,
-27,
0,
22,
-41,
-15,
19,
-18,
-6,
4,
-49,
3,
-18,
-16,
25,
55,
-15,
46,
-4,
6,
-12,
-30,
-54,
1,
6,
-28,
23,
-6,
-16,
26,
-33,
38,
1,
-9,
31,
-6,
-1,
-6,
44,
51,
9,
-23,
-18,
-26,
3,
-7,
-2,
47,
-57,
15,
-54,
12,
64,
16,
40,
7,
41,
-13,
3,
10,
-21,
-15,
6,
-5,
14,
3,
1,
8,
23,
-24,
-47,
-5,
0,
23,
-55,
-16,
46,
3,
30,
-4,
-30,
10,
-53,
9,
-19,
9,
8,
5,
7,
41,
21,
-40,
42,
25,
-7,
29,
40,
22,
12,
-65,
-4,
-3,
6,
59,
-22,
-16,
-15,
-18,
0,
1,
-8,
-3,
49,
-26,
6,
-28,
-71,
16,
-8,
21,
38,
13,
-46,
-1,
3,
42,
-61,
15,
-15,
-3,
36,
-14,
-28,
27,
45,
27,
13,
-12,
-30,
34,
-25,
21,
84,
46,
9,
-52,
37,
-31,
0,
-16,
-33,
-5,
-56,
61,
8,
-7,
-30,
46,
-31,
-41,
40,
-16,
19,
15,
18,
61,
38,
-1,
-101,
10,
-23,
-30,
-9,
59,
-34,
40,
33,
-14,
-58,
31,
-52,
-34,
46,
45,
-48,
19,
-56,
-13,
-21,
-6,
9,
-45,
0,
11,
-39,
22,
-29,
-3,
-23,
57,
10,
-24,
6,
19,
7,
31,
6,
-11,
-5,
-14,
-41,
26,
51,
-50,
-25,
15,
15,
29,
24,
-34,
12,
-47,
-4,
-19,
0,
-18,
-10,
-58,
10,
-17,
11,
-20,
0,
-7,
33,
-1,
-15,
42,
-16,
3,
-67,
-18,
-62,
-28,
2,
92,
25,
15,
-6,
-28,
-21,
-9,
19,
42,
19,
-15,
-13,
26,
-29,
5,
-43,
54,
20,
48,
10,
16,
7,
-67,
6,
15,
20,
8,
0,
-46,
17,
-2,
-25,
-3,
-67,
31,
-56,
13,
-49,
8,
-1,
17,
-25,
15,
38,
-2,
22,
-44,
19,
11,
-20,
38,
-48,
23,
8,
14,
-16,
-28,
-63,
-21,
24,
-23,
-5,
69,
52,
13,
6,
-27,
43,
2,
-17,
-48,
0,
-20,
-64,
21,
-7,
13,
37,
71,
-29,
-28,
54,
16,
-4,
-22,
21,
4,
7,
-32,
27,
-20,
76,
17,
0,
-37,
-41,
-13,
-2,
-44,
21,
-27,
62,
-7,
-28,
-14,
-35,
-3,
-27,
-76,
-13,
-7,
35,
-51,
22,
38,
36,
46,
26,
24,
-14,
-44,
29,
29,
39,
-13,
23,
-1,
34,
32,
-53,
1,
-2,
-14,
5,
-4,
-6,
-1,
-24,
42,
11,
-18,
-16,
30,
8,
-1,
-57,
28,
-4,
52,
-20,
18,
-6,
-14,
34,
-5,
-36,
32,
-13,
-43,
-31,
47,
-9,
6,
-5,
26,
-8,
-15,
19,
-13,
56,
13,
-11,
-11,
49,
2,
-5,
-18,
23,
0,
2,
-13,
-33,
31,
-8,
-2,
7,
41,
0,
38,
25,
66,
34,
4,
-39,
-52,
44,
-16,
-35,
13,
-31,
-9,
-23,
-46,
33,
-52,
-27,
-53,
-16,
12,
2,
-25,
13,
-7,
-9,
-36,
-12,
-59,
5,
-51,
6,
-40,
10,
-30,
-19,
18,
28,
51,
-38,
-72,
-68,
3,
50,
-27,
2,
3,
-2,
31,
-2,
11,
22,
20,
0,
-42,
24,
-11,
-12,
-15,
-61,
15,
3,
13,
4,
22,
-26,
1,
-39,
-4,
-6,
20,
-10,
-1,
-46,
19,
20,
23,
-14,
-36,
-10,
-18,
-19,
7,
47,
31,
-23,
11,
-38,
34,
1,
18,
15,
10,
-9,
26,
26,
-16,
26,
3,
30,
7,
-14,
-17,
-8,
-48,
8,
90,
30,
12,
23,
13,
8,
-21,
-21,
1,
6,
7,
-22,
-51,
-46,
28,
21,
36,
-16,
-11,
-34,
10,
-29,
55,
14,
23,
-29,
33,
10,
0,
-18,
-55,
-17,
-17,
-1,
-34,
25,
14,
-61,
-19,
6,
-23,
1,
-47,
19,
-10,
2,
31,
29,
29,
-28,
65,
2,
16,
12,
0,
-3,
-37,
3,
46,
-20,
-25,
-25,
-49,
23,
-9,
37,
4,
15,
-7,
-17,
62,
14,
-35,
-23,
14,
-11,
-19,
11,
-43,
45,
15,
31,
-37,
-22,
7,
7,
-57,
-43,
-45,
9,
-12,
2,
27,
-9,
71,
-20,
13,
-30,
3,
-8,
44,
26,
9,
8,
-20,
33,
0,
36,
-37,
14,
38,
16,
-48,
7,
-3,
2,
-11,
-11,
-39,
22,
-75,
-15,
13,
25,
20,
-18,
38,
-14,
-17,
9,
-40,
-13,
-26,
2,
15,
60,
10,
14,
-8,
-23,
-19,
-14,
10,
50,
6,
33,
-18,
9,
-52,
-2,
17,
-18,
-1,
5,
54,
-25,
-12,
-11,
24,
0,
23,
-14,
-42,
-28,
-2,
-45,
-14,
4,
52,
-7,
-4,
32,
11,
25,
-17,
21,
42,
-27,
8,
16,
2,
25,
-3,
0,
7,
-1,
-10,
3,
20,
-32,
33,
-51,
-23,
8,
-1,
18,
34,
-9,
-77,
14,
-15,
-62,
-34,
-4,
-18,
-28,
-18,
14,
-2,
9,
19,
36,
-45,
5,
32,
-7,
-24,
8,
-25,
-16,
8,
-51,
-2,
18,
7,
-33,
-45,
-38,
-19,
24,
-9,
70,
-8,
-23,
16,
16,
-7,
2,
-31,
7,
24,
-29,
-3,
74,
-11,
-9,
9,
22,
16,
15,
-20,
9,
10,
-43,
-17,
-4,
-13,
9,
19,
-23,
6,
1,
-16,
15,
17,
-61,
4,
-12,
15,
-24,
-55,
1,
11,
-22,
-17,
28,
-10,
-35,
-2,
2,
-20,
51,
-17,
-28,
-2,
-42,
-1,
-3,
-13,
-8,
-69,
31,
-17,
38,
-33,
-8,
6,
0,
14,
38,
-21,
6,
-10,
-6,
0,
-49,
60,
-57,
-59,
26,
37,
10,
-2,
31,
63,
-5,
-26,
36,
43,
37,
-16,
-12,
-8,
15,
-8,
9,
36,
20,
14,
38,
43,
-6,
-51,
20,
-34,
-7,
-49,
44,
8,
-29,
15,
47,
-37,
21,
43,
64,
40,
19,
-6,
-38,
-10,
-27,
6,
-13,
32,
37,
19,
51,
2,
-32,
2,
0,
-1,
-39,
-19,
-31,
-41,
0,
25,
11,
8,
-28,
-3,
-41,
-21,
9,
10,
32,
-5,
-2,
51,
65,
16,
0,
10,
2,
2,
-55,
2,
5,
-21,
-23,
55,
19,
-49,
-20,
-14,
0,
19,
12,
-52,
-67,
8,
-45,
26,
15,
8,
-2,
58,
0,
-28,
21,
10,
12,
-7,
25,
-16,
8,
39,
42,
-16,
0,
7,
-31,
43,
1,
-6,
8,
22,
-13,
31,
25,
-19,
-12,
48,
-5,
41,
61,
28,
62,
-32,
8,
6,
33,
-51,
-35,
42,
-11,
-3,
-24,
4,
11
] |
Per Curiam.
This is an appeal from a judgment entered in the circuit court of Iron County issuing a writ of mandamus directing defendants to proceed immediately with collection of a tax to pay the interest and principal on county hospital bonds yet unsold.
Plaintiff-appellee is the Iron County Board of Supervisors. Defendant-appellant is the City of Crystal Falls and the intervening appellee is the Municipal Finance Commission, which is represented by the Attorney General.
On April 23, 1968, plaintiff adopted a resolution for the issuance of county hospital bonds in the amount of $1,600,000. The resolution recited that the electors of the county had voted on May 16,1967, to authorize such an issue. The bond resolution further provided for bonds to be issued which would mature serially beginning May 1, 1970, with interest payable on May 1,1969 and semiannually thereafter.
At its regular October Meeting, the plaintiff adopted a separate resolution specifically authorizing “a tax of $2.03 per $1,000 based on Iron County’s 1969 state equalized valuation of $59,361,-645 on the 1969 tax rolls concerning debt service taxes on the hospital bond issue for the county of Iron, if legal.”
Apportionment certificates were served upon each of the county townships, including the defendant, with the statutory direction to levy and collect the taxes as set forth. The defendants refused to levy the taxes. Consequently, plaintiff brought the action in the Iron County Circuit Court asking that a writ of mandamus be issued requiring defendants to levy and collect the taxes. The mandamus issued and defendants have appealed.
Mandamus is the traditional remedy for compelling the performance of mandatory legal duties by public officials. Clearly, the granting of the remedy is discretionary with the trial court. Livonia Drive-In Theatre Co. v. City of Livonia (1961), 363 Mich 438; State Highway Commissioner v. Ottawa Circuit Judge (1954), 339 Mich 390; Hazel Park Racing Association, Inc. v. Racing Commissioner (1953), 336 Mich 508; City of Berkley v. Township of Royal Oak (1948), 320 Mich 597; De Young v. State Land Office Board (1946), 316 Mich 61; St. Ignace City Treasurer v. Mackinac County Treasurer (1944), 310 Mich 108; Powers v. Secretary of State (1944), 309 Mich 530; McLeod v. State Board of Canvassers (1942), 304 Mich 120; Tennant v. Crocker (1891), 85 Mich 328; Hall v. Risley (1888), 69 Mich 596.
Only a clear abuse of its discretion warrants interference by this Court on appeal. Kwaiser v. Peters (1967), 6 Mich App 153; Johnson v. Kramer Bros. Freight Lines, Inc. (1959), 357 Mich 254; Spalding v. Spalding (1959), 355 Mich 382; Detroit Trust Co. v. Sosensky (1942), 300 Mich 353.
To support the issuance of mandamus, a plaintiff must have (1) a clear legal right to performance of the specific act sought to be compelled and (2) the defendant must have a clear legal duty to perform such act, which must be a ministerial act the duty to perform which is prescribed and defined by law with such precision and certainty as to leave nothing to the exercise of discretion or judgment. Taylor v. Ottawa Circuit Judge (1955), 343 Mich 440; State Highway Commissioner v. Ottawa Circuit Judge, supra; Hazel Park Racing Association, Inc., v. Racing Commissioner, supra; Detroit Board of Education v. Superintendent of Public Instruction (1943), 304 Mich 206.
Defendant does not dispute these principles or claim that its duties are not ministerial or that appellants have no legal right to compel performance of tax collections. The defendant argues, however, that notwithstanding the above, mandamus should not issue to accomplish'an admittedly illegal purpose, citing Johnson v. Board of Supervisors of Ionia County (1918), 202 Mich 597; and Board of Supervisors of Cheboygan County v. The Supervisor of the Township of Mentor (1892), 94 Mich 386.
A careful reading of these cases demonstrates that the circumstances must be “exceptionally extraordinary before a supervisor may .refuse to perform a ministerial duty.
In the Johnson case, for example, a board of supervisors was required to collect a tax which had been held invalid 15 years before in a proceeding involving the same parties. In the Cheboygan case, the conduct of the county board was found by the trial court to be intentionally and wilfully fraudulent and a gross outrage upon the rights of taxpaying citizens.
The present case is quite different. Here, the actions of the county board, if not legal, were at least fair on their face and conducted in good faith.
As the Michigan Supreme Court said in Cheboygan, supra, “the circumstances must be exceptionally extraordinary which will justify the supervisor in refusing to comply with his statutory duty.”
It cannot be said that the circumstances here fall within that classification. Where the county board has acted in good faith with apparent fairness, those charged with ministerial duties in implementing the board’s action must perform their duties. Cheboygan, supra; Common Council of Hudson v. Whitney (1884), 53 Mich 158; Laubach v. O’Meara (1895), 107 Mich 29.
The defendant here has failed to demonstrate such exceptional and extraordinary circumstances as would justify its refusal to perform the ministerial duties in question. A determination at this point of the legality of the board’s action is unnecessary for the disposition of this appeal because more than mere illegality is required to justify the refusal to perform a ministerial act.
For these reasons, we are unable to say that the trial court abused its discretion by issuing the requested writ of mandamus. Therefore, its decision is affirmed. No costs, a public question being involved. | [
-6,
26,
-10,
23,
-92,
53,
29,
-32,
-46,
-3,
-42,
-41,
26,
6,
-29,
-43,
3,
-33,
12,
58,
-31,
5,
-7,
29,
0,
17,
2,
32,
14,
-55,
-32,
-52,
-13,
37,
-25,
-22,
21,
-37,
32,
3,
-7,
29,
-59,
-3,
-46,
-43,
5,
-59,
15,
-15,
-60,
24,
-33,
-13,
17,
5,
22,
-57,
-29,
-23,
-36,
10,
-24,
84,
31,
5,
-27,
-29,
42,
-13,
23,
30,
58,
-1,
17,
64,
-5,
-6,
-9,
18,
-42,
-11,
-18,
43,
-41,
12,
-23,
17,
-10,
-9,
17,
-16,
-62,
0,
30,
58,
-29,
-68,
0,
-2,
-51,
20,
-12,
1,
26,
-55,
39,
-53,
-1,
-34,
20,
-24,
34,
1,
-17,
-12,
-47,
-10,
26,
20,
30,
-38,
71,
-24,
-18,
3,
67,
10,
12,
-80,
44,
43,
-8,
8,
-21,
-7,
-11,
-31,
57,
34,
-2,
-39,
53,
0,
74,
-12,
18,
-55,
28,
13,
-38,
-14,
34,
41,
23,
-29,
-7,
-1,
-30,
31,
49,
30,
-7,
-13,
-24,
-50,
-21,
16,
-14,
46,
31,
16,
-22,
-14,
6,
-1,
-12,
43,
-19,
25,
-33,
-8,
20,
23,
-13,
23,
19,
-26,
-5,
5,
35,
3,
-6,
-11,
21,
26,
19,
28,
-43,
3,
10,
-38,
23,
2,
-31,
-23,
24,
-22,
-44,
31,
-26,
12,
-21,
56,
5,
27,
-33,
10,
18,
0,
-28,
10,
20,
25,
6,
-4,
0,
-34,
7,
14,
18,
24,
30,
11,
-41,
-30,
24,
41,
49,
-3,
-94,
-25,
5,
21,
3,
12,
4,
-24,
19,
-5,
22,
-45,
-17,
-40,
-10,
-42,
10,
-17,
32,
-23,
20,
31,
-50,
58,
12,
39,
-17,
25,
-20,
-6,
-21,
42,
20,
-79,
9,
18,
34,
11,
4,
44,
-15,
-29,
-16,
45,
-17,
84,
-2,
-19,
-31,
7,
17,
-1,
13,
-13,
9,
-7,
-8,
-61,
2,
29,
-14,
34,
20,
28,
-8,
-37,
-38,
-23,
18,
9,
17,
11,
-6,
9,
26,
-10,
24,
-11,
12,
-19,
18,
28,
-49,
-4,
8,
7,
45,
-53,
-33,
-14,
-20,
-5,
39,
-24,
-16,
1,
-5,
3,
-15,
-47,
49,
34,
4,
14,
-43,
-10,
-23,
8,
2,
0,
-34,
0,
26,
66,
-15,
-21,
-39,
-4,
-21,
27,
20,
11,
-25,
7,
-26,
-48,
-4,
17,
-11,
44,
36,
25,
50,
-14,
6,
-12,
2,
34,
-44,
21,
37,
-14,
57,
16,
30,
-31,
-16,
41,
-47,
-33,
-33,
-1,
-14,
5,
18,
13,
-20,
-65,
-14,
-17,
4,
-1,
-4,
20,
15,
10,
27,
-2,
46,
18,
1,
-9,
18,
3,
4,
-37,
55,
12,
7,
-29,
68,
28,
-2,
-64,
-15,
-12,
-28,
-1,
9,
33,
-29,
-12,
34,
23,
31,
1,
-55,
-16,
-21,
-56,
-16,
17,
53,
-4,
-15,
-67,
-7,
-15,
11,
24,
-53,
-23,
-21,
-51,
-54,
30,
-26,
-31,
-20,
-38,
-8,
-16,
-15,
-12,
6,
16,
-49,
37,
73,
-43,
-44,
22,
-41,
1,
0,
-5,
1,
-14,
31,
0,
-10,
-5,
-39,
0,
-14,
13,
10,
-16,
-71,
17,
25,
-29,
-8,
3,
29,
32,
-54,
4,
25,
14,
-21,
-7,
-15,
10,
25,
11,
25,
0,
3,
-13,
4,
-35,
12,
66,
11,
42,
-18,
-19,
10,
24,
-63,
4,
-66,
22,
17,
6,
8,
-5,
13,
22,
-21,
-20,
-9,
6,
-58,
23,
-35,
20,
-51,
12,
65,
7,
26,
51,
-2,
-2,
18,
-5,
-14,
1,
-66,
-31,
-24,
34,
0,
17,
-13,
21,
6,
-39,
-29,
12,
20,
-20,
15,
-26,
-4,
-13,
-26,
8,
-2,
24,
18,
22,
54,
-17,
-25,
-41,
-19,
6,
22,
30,
5,
33,
42,
-6,
19,
-43,
25,
-37,
-5,
-13,
-3,
28,
-11,
-18,
2,
83,
35,
-16,
-12,
9,
10,
-22,
-5,
-8,
14,
-6,
21,
-16,
22,
8,
2,
-20,
-20,
-9,
-56,
-17,
15,
11,
3,
35,
29,
29,
41,
-18,
28,
-84,
-92,
40,
-14,
-43,
-11,
-38,
6,
26,
-42,
65,
4,
-18,
-74,
-21,
40,
-42,
50,
-44,
-26,
-42,
-5,
22,
-8,
25,
19,
-1,
-12,
-17,
5,
-17,
21,
-75,
31,
28,
-11,
-32,
-18,
6,
0,
52,
60,
13,
33,
-17,
11,
-58,
30,
-56,
3,
-5,
28,
-4,
-63,
3,
-31,
17,
-29,
-8,
28,
17,
-21,
0,
-20,
48,
-20,
-3,
-19,
8,
13,
100,
24,
63,
6,
58,
-25,
17,
-26,
7,
10,
5,
-31,
-75,
-37,
-22,
-30,
46,
19,
-2,
25,
15,
28,
-26,
-25,
-56,
0,
-4,
0,
-32,
-35,
-54,
-35,
0,
-3,
-33,
13,
17,
26,
5,
3,
71,
-48,
1,
13,
11,
-24,
7,
-27,
-12,
-18,
20,
-33,
14,
-26,
32,
-12,
53,
-32,
-23,
-13,
23,
51,
5,
-12,
0,
3,
59,
14,
-3,
-27,
6,
14,
3,
27,
21,
-19,
-28,
34,
-15,
-44,
7,
-8,
-22,
-35,
9,
49,
-8,
-33,
-64,
23,
-35,
0,
-12,
-18,
-44,
6,
-28,
12,
48,
34,
-23,
-2,
-2,
48,
31,
30,
21,
6,
14,
-38,
8,
-21,
27,
30,
32,
3,
-20,
22,
25,
-67,
41,
-38,
-17,
-12,
20,
10,
30,
-25,
16,
45,
36,
10,
25,
50,
-8,
-15,
3,
56,
-40,
19,
-8,
-2,
-27,
49,
-62,
17,
-20,
-45,
9,
9,
17,
4,
70,
-12,
-1,
-17,
8,
7,
-2,
42,
-37,
-26,
-49,
38,
32,
-54,
2,
-15,
-1,
-73,
-20,
5,
28,
-20,
-22,
-35,
15,
22,
22,
11,
-31,
-13,
-70,
-34,
17,
35,
-62,
-3,
2,
28,
-20,
-40,
29,
15,
30,
-84,
47,
48,
-19,
-43,
-50,
0,
-38,
-5,
1,
-6,
-1,
15,
21,
44,
10,
10,
12,
-34,
7,
19,
30,
-19,
19,
-55,
-32,
46,
8,
49,
53,
-40,
-3,
-42,
-5,
-2,
20,
-1,
24,
-38,
-3,
-19,
5,
-14,
-18,
31,
-37,
16,
50,
13,
-21,
-57,
-36,
-5,
35,
14,
-21,
-6,
4,
-4,
-49,
31,
35,
-21,
33,
-5,
-5,
16,
53,
6,
6,
36,
12,
19,
31,
-5,
-4,
41,
18,
-60,
31,
19,
-23,
19,
1,
13,
0,
80,
30,
0,
-42,
35,
-21,
-10,
-42,
25,
-15,
-48,
-6,
34,
16,
-6,
-31,
18,
-7,
21,
-17,
-22,
53,
21,
-12,
68,
-3,
9,
-8,
25,
1,
22,
28,
-4,
7,
-5,
-2,
-6,
34,
-20,
-10,
-2,
-10,
46,
-17,
-22,
27
] |
Levin, J.
The defendant was convicted of attempting to obtain money by false pretenses from a credit union. He appeals claiming (1) that the people proved only that he attempted to obtain a check, not money, and (2) that even if he had succeeded in converting the check into money, the money which he would have obtained would not have been the credit union’s money. We affirm.
The uncontroverted evidence established that some person telephoned the credit union representing that he was Alex Preston and requested that a check for $306 be prepared and charged to Preston’s account with the credit union. The defendant later appeared and represented that he was Preston and requested the check. The cashier asked him to sign a receipt for the check, which he did. Upon comparing signatures she became suspicious and asked for additional identification. The defendant then left without the check and was later apprehended.
The defendant contends that attempting to obtain a check — the crime proved — is a crime separate and distinct from the charged offense of attempting to obtain money by false pretenses. We are referred to People v. Mears (1930), 251 Mich 359, 361. There the defendant was charged in a single-count information with both obtaining signatures to a note and mortgage by false pretenses and with obtaining money on the note and mortgage. The Court declared that these were two separate offenses, and, in reversing the conviction, said that the defendant was convicted of the first offense but was “inadvertently” sentenced for the second, and that when the defendant moved to quash the information for duplicity the trial court should have ordered “the count made single”.. The court also observed that the second offense “involved the first”.
Here, in contrast with Mears, the information charged only one offense, namely, attempting to obtain money by false pretenses. Mears cannot properly be read as precluding conviction of obtaining money by false pretenses because, as part of the scheme to obtain the money, the felon persuades the victim to sign a document (here a check) which the felon uses, or, as in this case, charging attempt, intends to use, to obtain the money.
In People v. Luttermoser (1900), 122 Mich 562, it was urged that an information was bad for duplicity in that it charged two offenses, — the one, obtaining signatures of certain persons to a written instrument by false pretenses, and the other, obtaining money on the basis of the instrument by false pretenses. The Court affirmed the conviction reasoning that obtaining the signatures was merely a step toward obtaining the money (p 565):
“Possibly the facts were set out in greater detail [in the information] than was absolutely necessary, but this was not a fault. The gist of the offense was the obtaining the money by the presentation of false or invalid orders. When this is stated, it answers the further objection that the information is bad for duplicity because in the same count several distinct, petty offenses are alleged, as these supposed distinct offenses consist of obtaining these several orders, but the averment as to obtaining the money is single.”
In People v. Hoffman (1905), 142 Mich 531, the Court rejected the argument that an information charging a defendant with having obtained money from the state by false pretenses was not proved because before the defendant obtained the state’s money he first had obtained, on the basis of false documents, a warrant drawn by the auditor general upon the state treasurer. It was the defendant’s contention that he obtained the warrant, not money, on the strength of the false documents, and that when he later obtained the money the state treasurer relied on the auditor general’s warrant, not the false documents, and the bank which paid the check relied on the check and nothing else. The Supreme Court reviewed other cases where it was attempted to fragment false pretense transactions and concluded that steps in such a transaction must be viewed as a continuum if they culminate in the attainment of the unlawful objective, obtaining money by false pretenses, not as separate crimes or variances between the proof and the charge stated in the information.
It has, indeed, been held that there is a fatal variance between an indictment charging the obtaining of money by false pretenses and proof that the accused person obtained a check not money. In the case before us, however, the defendant is charged with attempt, not the completed offense. It is the nature of attempt that the offense attempted is not completed.
The people proved that the defendant Robinson attempted to obtain a check. The trier of fact could reasonably infer that if he had obtained the check he would have attempted to convert it into money. And since the action of the defendant had gone beyond mere preparation (he presented himself at the credit union and requested, and signed a receipt for, the check) the trier could properly conclude that the charged offense, attempting to obtain money, was proved.
In other jurisdictions, it has been said that evidence that the accused attempted to obtain or obtained a check sufficiently supports a conviction of attempting to obtain money or property by false pretenses even though the check is not cashed.
The people also adequately established that the money that the defendant attempted to obtain was, as charged in the information, the property of the credit union. The credit union’s account with the bank on which it drew the check it had prepared to the order of Alex Preston represented the credit union’s right to a sum of money. That right would have been diminished if the defendant had succeeded in obtaining and cashing the check. This is sufficient; the fact that the drawee bank or some other bank or a prior endorser, not the credit union, might ultimately bear the loss does not affect the matter.
Nor is it of any importance that the defendant could not have cared less whether the money he purloined was the credit union’s money, the bank’s or someone else’s money, or who would ultimately suffer the loss.
The trial of an information charging an attempt to obtain money by false pretenses does not require an inquiry concerning the defendant’s knowledge of, or instructions to the jury regarding, the law of bank collections and negotiable instruments.
Affirmed.
All concurred.
MCLA § 750.92 (Stat Ann 1962 Rev § 28.287) : MOLA § 750.218 (Stat Ann 1962 Rev § 28.415).
The information charged that the defendant “feloniously attempt [ed] to commit the crime of obtaining money under false pretenses, and he, the said Lyndell B. Bobinson, did then and there do a certain overt act towards the commission thereof, to-wit: presented identification of one Alex Preston and signed his name as Alex Preston to' a receipt for a check No. I>032719 in the amount of $306, property of Craftsman Credit Union, a nonprofit organization, with intent to obtain $306 from the said Craftsman Credit Union, but he, the said Lyndell B. Bobinson, did then and there fail in the perpetration thereof, or was intercepted and prevented in the execution thereof.”
The information in this case, in contrast with the Mears information, does not charge two separate offenses. Here the description in the information of what the defendant is alleged to have done concerns the overt act, which is simply an element of — the element that symbolizes — the one offense charged.
See, also, People v. Batten (1967), 9 Mich App 195, 201.
The majority rule is that there is no fatal variance between allegations in an information that the defendant obtained “money” by false pretenses, and proof that he obtained a note or cheek which he negotiated or cashed thereby in fact obtaining money through the transaction. See Anno: Criminal charge predicated upon fraudulently obtaining a cheek, note, etc., or signature thereon, from the person executing the same, 141 ALR 210, 220.
State v. Pittman (1967), 9 Ohio St 2d 186 (224 NE2d 913). Similarly, see People v. Pickett (1968), 15 Mich App 1; information charging the obtaining of money by false pretenses for services to be rendered over an indefinite and possibly prolonged period of time cannot be proved by showing that the accused person obtained a job by misrepresentation of his identity and criminal record. The Court observed that the information did not charge, and the people did not prove, that the accused person falsely represented the quality of the services that he could render.
State v. Terry (1891), 109 Mo 601, 622, 623.
Reeves v. State (Okla App, 1939), 96 P2d 536.
There was testimony at the trial that the credit union did not cash checks for its customers. Thus, if the defendant had obtained the check he might have converted it into cash with a bank, not necessarily the drawee bank, or a merchant or other person. Under the Uniform Commercial Code a collecting bank warrants that there are no forged endorsements. See MCLA §440.4207(1) (a) (Stat Ann 1964 Bev § 19.4207[1] [a]). It appears, however, that delay in discovering the fraud might result in ultimate imposition of the loss on the credit union. Under MCLA §440.4207(4) (Stat Ann 1964 Rev § 19.4207 [4]) neglect in asserting a claim beyond a reasonable time after learning of a breach would discharge the collecting bank; also, the statute of limitations in an action by a customer against his own bank based on payment of an item bearing an unauthorized endorsement is only three years (MCLA § 440.4406 [4] [Stat Ann 1964 Rev § 19.4406(4)]) while a longer limitational period, the general six-year statute (MCLA § 600.5807 [8] [Stat Ann 1962 Rev § 27A.5807(8)]), might apply in an action against the credit union by one of its customers.
In a number of eases it has been held that an accused person may be convicted of obtaining money or property by false pretenses even though the victim might not suffer any loss. See State v. Porter (1881), 75 Mo 171, 177; People v. Cook (1886), 41 Hun 67 (5 NY Crim 115); People v. Bryant (1898), 119 Cal 595 (51 P 960); State v. Aiken (1953), 174 Kan 162 (254 P2d 264).
It has also been held that when the offense charged is the obtaining of a signature on a written instrument by false pretenses that it is sufficient that the victim has been exposed to the hazards attendant upon having the instrument come into the possession of other persons. See annotation cited in fn 5, at p 235.
See People v. Hoffmann, supra. | [
28,
-22,
-9,
-28,
-16,
-21,
11,
-3,
-35,
31,
47,
1,
63,
5,
-10,
-24,
28,
24,
28,
-33,
-43,
-87,
15,
37,
-10,
-43,
41,
14,
4,
82,
14,
-1,
-10,
-10,
-33,
-36,
11,
-12,
46,
5,
-25,
1,
23,
48,
-77,
5,
-42,
-46,
-14,
-5,
55,
-40,
48,
33,
16,
-5,
22,
-45,
43,
-33,
9,
-23,
81,
11,
-15,
-25,
-11,
6,
-25,
19,
-9,
-1,
-40,
-1,
4,
-11,
4,
19,
-39,
29,
0,
3,
8,
5,
58,
10,
-15,
-3,
34,
-77,
28,
8,
-38,
-51,
-6,
-17,
-9,
47,
35,
-6,
-34,
-40,
-25,
40,
8,
65,
0,
-6,
-49,
-3,
-50,
-8,
26,
-15,
-44,
-35,
-50,
22,
20,
-16,
-22,
-24,
0,
22,
8,
3,
-14,
-33,
-68,
34,
-1,
29,
-59,
25,
-58,
7,
-42,
11,
-13,
6,
-15,
41,
-20,
33,
8,
-28,
69,
4,
28,
11,
-46,
7,
-9,
10,
-5,
-6,
-33,
-49,
-55,
-23,
16,
71,
5,
-9,
24,
-12,
-9,
-3,
28,
-95,
23,
46,
-29,
-33,
1,
19,
8,
-17,
17,
-37,
-21,
32,
-1,
73,
-14,
2,
-17,
-5,
11,
-16,
-21,
-3,
-8,
26,
45,
25,
-3,
35,
-23,
-64,
-24,
-18,
51,
22,
34,
-21,
-32,
-50,
3,
13,
-14,
2,
-17,
-15,
-38,
-14,
1,
-46,
47,
2,
-63,
33,
2,
-7,
-34,
-44,
56,
43,
-1,
44,
-80,
15,
3,
-30,
-8,
-2,
16,
-10,
17,
31,
-39,
-18,
9,
-2,
-23,
14,
-16,
-22,
2,
-35,
-22,
5,
-20,
22,
-104,
-13,
51,
-45,
-33,
2,
-46,
29,
9,
26,
13,
-26,
13,
45,
-86,
-1,
-20,
-78,
-8,
-24,
15,
-12,
-65,
13,
-16,
-6,
23,
14,
-10,
13,
-6,
-5,
-14,
23,
71,
18,
65,
-4,
-13,
7,
46,
0,
24,
-55,
-39,
35,
14,
-22,
-1,
-29,
5,
-35,
62,
-62,
-96,
-56,
49,
-27,
-69,
19,
75,
-31,
-21,
-22,
24,
-8,
50,
-56,
6,
-13,
40,
14,
14,
-44,
21,
-18,
-1,
7,
-32,
20,
-10,
-6,
39,
31,
34,
-8,
-20,
-29,
-32,
4,
20,
8,
-37,
2,
-25,
-59,
32,
32,
6,
10,
-32,
39,
-2,
-13,
2,
44,
10,
27,
-2,
-23,
46,
33,
7,
38,
-1,
53,
-8,
-75,
-18,
-1,
7,
-17,
-50,
-40,
-52,
-5,
-54,
-2,
41,
-16,
-18,
10,
-47,
-73,
-31,
1,
-29,
47,
-12,
14,
-19,
-21,
37,
-31,
36,
-25,
-23,
22,
50,
10,
-41,
-6,
9,
-26,
-54,
10,
11,
17,
-14,
31,
-15,
-13,
62,
2,
-9,
-5,
23,
-35,
-45,
-31,
21,
-35,
-11,
52,
-26,
-47,
-22,
16,
10,
-47,
-30,
29,
-28,
-14,
-4,
-56,
6,
-1,
-16,
16,
0,
-7,
-37,
-53,
26,
9,
-36,
-24,
22,
-27,
5,
12,
31,
0,
-10,
-67,
28,
15,
-11,
-5,
59,
-53,
-16,
-49,
-7,
32,
-1,
-22,
-31,
28,
17,
28,
28,
-2,
-17,
-7,
-45,
23,
13,
-43,
-24,
-18,
-42,
-95,
-64,
-5,
-21,
24,
19,
40,
6,
16,
-74,
-22,
-26,
39,
-37,
28,
66,
42,
38,
15,
-3,
-29,
26,
19,
-49,
35,
-1,
50,
-8,
11,
-16,
36,
-55,
-1,
22,
26,
-10,
26,
-34,
17,
12,
14,
5,
26,
39,
-11,
42,
-65,
27,
-5,
12,
4,
-14,
4,
-50,
11,
6,
7,
36,
5,
21,
-38,
-3,
1,
-38,
11,
79,
15,
-6,
7,
7,
-27,
3,
-34,
-49,
-23,
14,
-1,
14,
-10,
17,
29,
34,
-77,
-20,
-8,
-11,
53,
-40,
28,
-7,
-17,
-5,
23,
60,
23,
5,
-22,
-48,
48,
-18,
3,
20,
-13,
22,
-16,
68,
16,
55,
-16,
-64,
-47,
21,
37,
42,
-6,
-58,
30,
22,
-64,
-1,
64,
-43,
-9,
30,
11,
6,
29,
15,
-57,
-15,
8,
-10,
32,
55,
32,
-2,
15,
22,
-27,
-13,
16,
11,
-51,
11,
-8,
-18,
21,
-18,
19,
-28,
26,
-22,
0,
0,
49,
-12,
15,
32,
9,
24,
5,
42,
-27,
4,
12,
33,
-37,
8,
-33,
-23,
-16,
-26,
-22,
-36,
17,
-62,
34,
54,
21,
-4,
-1,
56,
-28,
30,
-72,
27,
7,
57,
-7,
-23,
-22,
-16,
-54,
0,
-14,
26,
43,
-13,
-8,
12,
-32,
-10,
0,
66,
30,
-47,
-13,
0,
7,
8,
-17,
-13,
3,
41,
-66,
-47,
21,
-22,
-31,
-13,
-44,
-13,
40,
21,
8,
0,
52,
-7,
0,
-35,
7,
-42,
12,
-14,
-11,
34,
5,
27,
2,
78,
-27,
34,
-39,
2,
-14,
14,
1,
42,
46,
28,
0,
-4,
36,
-12,
28,
25,
-33,
-16,
-28,
38,
-38,
27,
-18,
55,
18,
-18,
18,
-19,
58,
2,
-34,
-19,
-47,
-23,
56,
-25,
-48,
-8,
17,
-68,
-8,
13,
-29,
-38,
-73,
1,
46,
-56,
49,
15,
-48,
67,
31,
24,
42,
18,
-19,
23,
-43,
0,
-29,
19,
36,
-4,
26,
0,
-2,
0,
44,
10,
-21,
17,
-20,
-16,
26,
19,
5,
-46,
35,
25,
-2,
9,
-14,
32,
2,
-8,
7,
5,
-3,
31,
-2,
-39,
-49,
29,
-24,
22,
-51,
-33,
69,
-26,
-27,
-24,
-4,
-29,
40,
51,
16,
3,
31,
19,
-6,
-49,
-39,
14,
-33,
11,
49,
36,
46,
62,
2,
28,
-37,
56,
-42,
-4,
4,
-26,
14,
-23,
88,
33,
22,
34,
19,
14,
3,
-4,
-30,
6,
47,
16,
-48,
1,
8,
-10,
16,
3,
51,
37,
-5,
-1,
25,
-5,
22,
0,
-10,
12,
-9,
26,
-16,
-20,
-1,
-25,
19,
-41,
-28,
24,
-35,
4,
-48,
22,
-27,
31,
18,
-74,
30,
32,
-4,
14,
9,
-13,
26,
-19,
-24,
35,
10,
-25,
4,
54,
40,
41,
-4,
-2,
36,
12,
24,
-12,
13,
33,
47,
-25,
7,
-18,
14,
-32,
10,
16,
13,
11,
-47,
53,
22,
5,
14,
-1,
-4,
-34,
28,
-24,
-7,
-20,
16,
-25,
7,
-6,
30,
19,
37,
-6,
-32,
-26,
-4,
-25,
3,
-1,
-7,
18,
47,
34,
-58,
2,
24,
6,
-27,
-39,
-33,
2,
-7,
13,
-31,
3,
16,
5,
18,
27,
31,
-8,
-29,
12,
42,
-13,
57,
11,
-42,
-25,
35,
29,
-45,
22,
-22,
-32,
-30,
-1,
9,
20,
9,
27,
-9,
26,
6,
13,
-34,
16,
-47,
41,
15,
6,
7,
-7,
-18,
-21,
34,
-2,
43,
-1,
43
] |
On Rehearing
Per Curiam.
Lola Buchanan, plaintiff in the instant case, appeals from a judgment entered on a directed verdict. The initial action was commenced as a result of personal injuries sustained by plaintiff when her car was struck by the defendant’s automobile at the intersection of Dye Road and Miller Road in Flint Township.
Miller Road is a four-lane highway with a three-or four-foot island dividing two eastbound from two westbound lanes. It is a through highway with a posted speed limit of 50 miles per hour. Dye Road runs north and south, has a gravel surface, and is controlled by a stop sign at its intersection with Miller Road.
At the time of the accident, weather conditions were variously described as “bad” to “terrible”. It was snowing and sleeting and the wind had been blowing. The snow had been creating a slick condition upon road surfaces. The sky was overcast, and visibility was impaired considerably.
Testimony elicited during the trial indicates that plaintiff was northbound on Dye Road and had stopped for eastbound traffic on Miller Road for approximately ten minutes while she observed traffic and determined that it was safe to proceed through the intersection. At approximately the same time, defendant’s automobile overtook other eastbound traffic which was moving at about 20 miles per hour. It was also alleged that defendant was traveling at about twice the speed of the cars he was overtaking. After passing an automobile on his left which was driven by one of the witnesses, defendant pulled in front of it, thus placing him back on the inside lane. Plaintiff noticed defendant’s vehicle for the first time when it was two or three car-lengths away. At this point, the front end of the Buchanan vehicle was well into the lane in which defendant’s automobile was then traveling. Defendant applied his brakes and went into a skid, whereupon he slid into plaintiff’s car which was then almost in the middle of Miller Road.
Upon completion of plaintiff’s proofs, defendant was granted a directed verdict based on an alleged failure to show negligence as well as plaintiff’s own contributory negligence. Plaintiff filed an appeal as of right and in April, 1970, oral arguments were heard by this Court. On May 27, 1970, the Court sua sponte ordered that a rehearing of the matter be held.
The primary question with which the Court is faced is whether the trial court erred in granting defendant’s motion for a directed verdict of no cause of action. Specifically, we must determine whether plaintiff was negligent as a matter of law in failing to yield the right-of-way to defendant.
The applicable statute, MCLA § 257.649 (Stat Ann 1968 Rev § 9.2349), which concerns right-of-way and stop signs, states in part:
“(f) # * * after having stopped, the driver shall yield the right of way to any vehicle which has entered the intersection from another highway or which is approaching so closely on the highway as to constitute an immediate hazard during the time when the driver would be moving across or within the intersection.”
A complete review of the record in the present ease reveals that the facts are such that our previous decision in Chambers v. St. John (1969), 20 Mich App 533, is directly applicable and controlling. The Chambers case, involving the same statute, held that “the prevailing rule has been and still is that negligence as a matter of law results from a violation of the statute”. See, also, cases cited therein.
The decision of the trial court is therefore affirmed on rehearing in this Court. Costs to appellees. | [
-78,
46,
8,
-8,
-11,
-57,
32,
-15,
-46,
48,
0,
-27,
50,
-25,
21,
-66,
37,
-15,
0,
-7,
-36,
-30,
-32,
8,
-43,
-1,
26,
-85,
22,
14,
11,
-83,
-35,
-1,
-22,
13,
18,
68,
9,
-3,
43,
41,
-25,
-28,
-2,
-62,
4,
14,
17,
2,
-31,
21,
-42,
1,
-8,
69,
15,
21,
-26,
-8,
-27,
-9,
-2,
-5,
52,
8,
16,
-11,
-7,
-9,
-28,
29,
-7,
11,
-36,
-4,
-11,
11,
-19,
45,
-23,
11,
47,
34,
-21,
-14,
-12,
-27,
-54,
-18,
31,
-47,
-13,
-11,
-13,
39,
16,
-22,
16,
6,
-12,
30,
64,
3,
-41,
-3,
-21,
-55,
-23,
-22,
14,
53,
-2,
-21,
-68,
-29,
61,
0,
65,
16,
43,
26,
22,
-25,
-7,
-38,
-12,
27,
-30,
-38,
-34,
4,
54,
57,
8,
34,
-36,
-12,
-29,
-27,
19,
21,
22,
35,
-8,
43,
47,
-15,
-16,
20,
-18,
16,
1,
-16,
1,
-34,
18,
-46,
35,
-10,
54,
27,
-24,
24,
-16,
0,
-22,
3,
16,
-44,
47,
-26,
70,
0,
34,
-1,
-19,
-3,
-72,
14,
-23,
26,
36,
4,
-23,
-32,
-16,
26,
-37,
18,
0,
-12,
-27,
14,
37,
12,
6,
22,
3,
11,
30,
40,
-18,
-18,
-55,
14,
-13,
-25,
-5,
-15,
-9,
-19,
-64,
-16,
55,
-37,
30,
-3,
26,
-6,
-7,
47,
75,
-17,
-62,
-35,
-32,
-29,
18,
24,
43,
5,
-62,
36,
-4,
33,
-7,
6,
-5,
-44,
42,
13,
13,
-23,
26,
62,
3,
-7,
1,
-13,
36,
8,
-14,
-33,
6,
-6,
19,
29,
-6,
11,
62,
82,
-17,
-20,
-13,
36,
-35,
20,
-5,
-42,
-5,
-20,
37,
-17,
-52,
0,
4,
5,
29,
29,
-43,
-11,
-60,
-14,
5,
21,
-24,
18,
-5,
11,
78,
-40,
-31,
49,
-25,
-23,
8,
-14,
-58,
16,
41,
-9,
10,
-11,
22,
-13,
-12,
-28,
-21,
24,
-7,
-15,
-2,
47,
66,
45,
1,
-13,
15,
-47,
-12,
11,
8,
-49,
-29,
29,
1,
-24,
-8,
-16,
-27,
29,
25,
36,
60,
-30,
-29,
54,
-16,
30,
18,
31,
-30,
-27,
14,
28,
19,
10,
3,
36,
-39,
-42,
34,
-19,
-35,
-27,
-8,
-18,
-28,
-2,
17,
-10,
3,
-1,
11,
-2,
10,
11,
-43,
24,
34,
-40,
37,
-18,
-38,
-37,
5,
-29,
-2,
10,
16,
-52,
-13,
-55,
-3,
10,
-35,
-60,
-18,
20,
0,
-19,
10,
-1,
-54,
3,
19,
-1,
-50,
-3,
8,
8,
26,
-26,
-44,
-6,
35,
-23,
7,
-2,
-12,
-25,
47,
-28,
-1,
0,
0,
29,
-47,
-48,
-28,
-7,
-17,
-32,
-10,
-32,
13,
-17,
12,
27,
3,
13,
24,
-19,
-22,
16,
22,
-36,
-3,
2,
-63,
13,
-42,
26,
-23,
-5,
15,
-36,
43,
4,
90,
21,
22,
-16,
0,
42,
7,
41,
-2,
11,
29,
-34,
-20,
35,
-12,
-73,
-14,
19,
20,
0,
-18,
40,
19,
42,
33,
-1,
23,
-18,
-32,
6,
-16,
-29,
-8,
-25,
8,
-23,
27,
22,
16,
7,
-4,
49,
-19,
-9,
-36,
-3,
-25,
32,
-35,
-19,
-56,
5,
-30,
-1,
52,
-11,
21,
29,
-21,
-34,
-19,
16,
32,
1,
41,
39,
-12,
-8,
32,
-39,
-10,
-9,
-38,
4,
-53,
-21,
-49,
-5,
-24,
8,
58,
-7,
40,
-5,
-30,
-2,
-39,
-14,
-27,
49,
-42,
48,
-19,
-52,
7,
-15,
0,
23,
18,
29,
38,
-16,
3,
-25,
-8,
-14,
29,
-24,
26,
-15,
21,
5,
-17,
45,
23,
-36,
-48,
-38,
87,
4,
-6,
0,
13,
-32,
24,
24,
-23,
6,
-26,
7,
31,
22,
-12,
6,
-17,
-16,
0,
-48,
-31,
6,
-18,
26,
15,
7,
3,
0,
18,
-20,
-19,
-21,
2,
4,
-27,
-12,
47,
2,
4,
-44,
-3,
-15,
22,
-20,
8,
-2,
-15,
-17,
-28,
29,
29,
-24,
-13,
-4,
-21,
-15,
-10,
-13,
-29,
56,
-21,
-14,
-63,
26,
-86,
10,
-69,
-3,
20,
-1,
-34,
-4,
-42,
49,
81,
-21,
-20,
-35,
0,
1,
-51,
-3,
-17,
48,
-2,
-64,
5,
-14,
23,
-17,
-39,
-24,
3,
15,
0,
-56,
-61,
-41,
-14,
-44,
29,
8,
24,
4,
0,
16,
30,
-5,
-40,
9,
-38,
43,
-23,
-48,
3,
-29,
-1,
16,
16,
35,
28,
5,
1,
37,
-7,
-20,
-37,
15,
20,
-31,
-38,
19,
17,
-27,
0,
18,
-23,
7,
7,
18,
52,
32,
-6,
36,
-3,
-12,
0,
41,
12,
-14,
-27,
10,
14,
-15,
-12,
-29,
-28,
-5,
8,
-14,
65,
4,
1,
55,
-11,
19,
0,
10,
38,
-10,
8,
-42,
-9,
33,
19,
-18,
-75,
6,
-29,
19,
-10,
-49,
2,
2,
11,
-10,
-43,
-1,
38,
-36,
7,
-3,
55,
-26,
10,
29,
-35,
-2,
34,
-43,
-25,
15,
-27,
30,
43,
-51,
-41,
31,
27,
-34,
40,
-21,
-39,
-10,
0,
-4,
14,
-49,
-21,
-20,
-39,
22,
13,
7,
-14,
7,
17,
5,
33,
-22,
28,
26,
17,
-6,
-6,
11,
31,
-7,
-1,
85,
86,
0,
57,
10,
20,
-17,
69,
-23,
36,
63,
-14,
-11,
11,
-11,
17,
-17,
0,
32,
48,
-28,
46,
29,
39,
-32,
-32,
6,
-33,
7,
108,
4,
-2,
-38,
0,
8,
14,
25,
-55,
17,
-11,
18,
-3,
32,
-5,
0,
1,
-32,
-41,
12,
-25,
-2,
13,
46,
-7,
-21,
-37,
-13,
25,
0,
-12,
-6,
12,
21,
20,
-18,
-10,
39,
-37,
33,
-11,
-36,
48,
18,
28,
-49,
65,
56,
-20,
-77,
-43,
-34,
-17,
27,
37,
76,
20,
-31,
-41,
5,
-40,
42,
-28,
-41,
-40,
53,
0,
13,
34,
-32,
-2,
35,
-24,
9,
40,
-7,
-20,
-2,
54,
21,
-37,
3,
35,
39,
57,
1,
-15,
6,
17,
4,
-21,
-25,
5,
59,
-2,
-21,
-25,
-2,
-4,
-36,
-3,
-31,
-16,
-25,
5,
-22,
-67,
34,
10,
-30,
9,
44,
-48,
-17,
16,
-4,
-9,
8,
11,
-5,
2,
15,
-9,
13,
5,
21,
47,
2,
22,
9,
24,
29,
-27,
57,
-20,
6,
13,
-26,
-13,
39,
39,
-1,
-46,
-29,
-5,
-31,
58,
10,
-32,
-29,
2,
-49,
-31,
-4,
-36,
27,
23,
28,
-5,
28,
-37,
-17,
29,
36,
8,
35,
-7,
13,
30,
-16,
44,
20,
10,
13,
-41,
32,
-34,
-6,
-18,
50,
-24,
-24,
-10,
-21,
-10,
-12,
11,
1
] |
Per Curiam.
Plaintiff and defendant entered a contract whereby defendant was to construct a building for plaintiff. The contract was dated July 13, 1960, the building was completed on November 28, 1960, and final payment was made on December 17,1960. This contract included two clauses of relevance here:
“Article 9
“The Contractor shall re-execute any work that fails to conform to the requirements of the contract and that appears during the progress of the work, and shall remedy any defects due to faulty materials or workmanship which appear within a period of one year from the date of completion of the contract.
“Article 12
“The making and acceptance of the final payment shall constitute a waiver of all claims by the Owner, other than those arising from unsettled liens or from faulty work appearing thereafter, as provided for in Article 9 and of all claims by the Contractor except any previously made and still unsettled.”
On January 27, 1967, the building collapsed from the weight of snow. On December 21,1967, plaintiff commenced an action to recover damages with three counts alleging (1) negligence, (2) breach of express and (3) implied warranties in the construction of the building.
Defendant filed two motions in the trial court:
1) For accelerated judgment on the grounds that the action was barred by the applicable statute of limitations.
2) For summary judgment on the grounds that plaintiff had, by contract, waived all claims against defendant for any defects occurring later than one year after completion.
The trial court granted the motion for summary judgment and denied the motion for accelerated judgment.
Plaintiff has appealed the decision on the motion for summary judgment and defendant has filed a cross-appeal from the denial of its motion for accelerated judgment.
Plaintiff urges that the waiver clause of Articles 9 and 12 were not sufficient to support a grant of summary judgment. The provisions were the result of unequal bargaining positions and are contrary to public policy, it is claimed.
The general rule holds that such clauses are valid when the parties are in equal bargaining position and no matter of public policy, such as a duty imposed by law, is involved; 38 Am Jur, Negligence, § 8, p 649; and 17 Am Jur 2d, Contracts, § 188, p 556. This Court has supported the general rule, Shelby Mutual Insurance Co. v. City of Grand Rapids (1967), 6 Mich App 95.
The lower court correctly found that the waiver in the contract was the product of fair “arms-length” bargaining by the parties and was not contrary to any public policy. The grant of the motion for summary judgment is affirmed.
As to Count 1 of the motion for accelerated judgment (count for negligence), the cross-appellant urges that under Michigan law the statute of limitations commences at the time the tort is committed, regardless of when the damage was done, MCLA § 600.5827 (Stat Ann 1962 Rev § 27A.5827). This position is supported in Jackson v. Crisler (1968), 10 Mich App 144 and Kennedy v. Local 38 United Brewery, Flour, Cereal, Soft Drink & Distillery Workers of America (1966), 3 Mich App 700. In this case then the statute would have commenced upon the completion of the building in November 1960 and the action would be barred after November 1963.
The statute in question reads:
“Except as otherwise expressly provided, the period of limitations runs from the time the claim accrues. The claim accrues at the time provided in sections 5829 to 5838, and in cases not covered by these sections the claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results.”
Admittedly, this statute is inartfully worded and somewhat arcane, testing one’s common sense in that the result can be one where a claim is stale when a plaintiff has yet had no opportunity to brinfe- an action. Yet any other reading which might result in a statute of limitations longer than three years must torture the language and ascribe a different legislative intent where none is apparent.
Plaintiff-appellee’s argument that the statute must be interpreted so that the time for the running of the statute commences at the time of “injury” rather than “wrong” is not tenable.
The statute specifically limits the time at which a claim accrues in situations not covered by the various exceptions (none of which are relevant here). The statute in this case began to run in 1960, regardless of when the damage manifested itself. The motion for summary judgment as to count 1 was improperly denied.
Under the relevant statute dealing with breach of warranty of quality or fitness, MCLA § 600.5833 (Stat Ann 1962 Eev § 27A.5833), the claim accrues when the breach is discovered or should reasonably have been discovered. Defendant contended that here the waiver clause in Article 9 of the contract had the effect of predetermining a “reasonable time” for discovery and limiting it to one year. Plaintiff argmed that “reasonable time for discovery” was a determination for trier of fact to mate, taking into consideration the terms of Article 9.
The lower court properly denied the motion for accelerated judgment as to counts 2 and 3; the question is one for the trier of fact.
As to the motion for summary judgment, the lower court is affirmed.
On the motion for accelerated judgment the lower court is reversed as to count 1, affirmed as to counts 2 and 3. Costs to abide the final outcome. | [
-14,
25,
-4,
15,
-7,
28,
19,
-48,
29,
26,
24,
20,
3,
-65,
4,
-14,
-44,
9,
-34,
12,
-61,
-19,
-27,
-11,
-10,
55,
35,
-25,
37,
55,
-20,
-2,
-48,
-17,
-61,
14,
15,
-2,
29,
7,
-1,
-28,
-8,
-58,
-1,
-39,
37,
0,
87,
-11,
13,
34,
-5,
-2,
3,
-37,
14,
-10,
-43,
35,
-15,
-22,
-16,
21,
26,
7,
-14,
55,
37,
-3,
1,
37,
10,
-14,
-27,
16,
-12,
59,
-47,
-3,
41,
-8,
29,
-1,
-4,
27,
11,
12,
34,
19,
-89,
-20,
0,
62,
-50,
29,
-16,
22,
36,
19,
-34,
17,
25,
43,
-44,
-24,
-7,
-31,
42,
23,
12,
6,
-2,
1,
-18,
-14,
24,
43,
-38,
-8,
15,
35,
4,
41,
-1,
47,
-5,
-33,
-32,
-34,
-3,
-1,
-20,
40,
15,
-5,
34,
15,
13,
-24,
20,
-44,
6,
-8,
16,
30,
5,
-14,
-32,
-24,
-30,
-6,
27,
31,
5,
4,
-35,
-31,
-15,
-48,
38,
-10,
-10,
6,
-26,
-31,
1,
28,
23,
27,
11,
-6,
9,
-16,
28,
5,
46,
-34,
1,
-2,
9,
-24,
37,
2,
29,
-39,
-23,
8,
-15,
-39,
11,
-33,
-73,
39,
-23,
5,
-15,
44,
-19,
-4,
-27,
-48,
1,
-10,
-30,
4,
31,
1,
5,
37,
-33,
-27,
-35,
-14,
8,
21,
10,
57,
-29,
-35,
-27,
-1,
-17,
6,
-9,
-7,
1,
-16,
12,
-44,
-27,
-19,
0,
-12,
72,
5,
-7,
13,
49,
23,
21,
-19,
-52,
24,
-1,
-74,
-50,
-31,
27,
-14,
-12,
-8,
23,
12,
-24,
-25,
-27,
9,
-34,
-26,
-15,
43,
-30,
-76,
15,
13,
-33,
-7,
12,
18,
-37,
58,
26,
6,
-20,
-57,
-44,
1,
-10,
16,
-42,
3,
-17,
6,
-63,
3,
44,
29,
-47,
-20,
53,
-42,
8,
-21,
45,
5,
29,
22,
-17,
-29,
-24,
-65,
37,
-4,
-4,
4,
-44,
4,
19,
-18,
-55,
-10,
53,
-38,
0,
0,
0,
-23,
7,
-52,
49,
-3,
26,
-10,
1,
-72,
3,
0,
-44,
24,
-44,
56,
-29,
4,
2,
-11,
8,
-22,
-23,
17,
17,
75,
29,
-41,
-39,
52,
14,
-15,
21,
9,
29,
-28,
-26,
-8,
-2,
37,
17,
-23,
-39,
2,
74,
26,
35,
-18,
4,
0,
23,
22,
-39,
25,
12,
26,
0,
9,
-30,
-38,
10,
62,
-57,
67,
20,
-3,
36,
-9,
51,
-4,
-27,
-51,
-9,
-2,
-62,
-73,
12,
12,
16,
25,
-5,
10,
-32,
-45,
-6,
-8,
-3,
-32,
2,
-3,
10,
-27,
-59,
24,
1,
-18,
4,
-4,
-19,
-7,
20,
-11,
22,
10,
1,
-10,
-1,
4,
-47,
-56,
17,
-12,
-38,
-25,
-34,
36,
-11,
-68,
27,
7,
-25,
-14,
-40,
10,
-38,
19,
-41,
-56,
34,
0,
8,
60,
2,
-3,
38,
11,
-13,
39,
-22,
-17,
-3,
-5,
36,
38,
10,
-19,
-24,
-32,
25,
-10,
-19,
-9,
52,
-24,
-16,
-1,
-1,
24,
3,
8,
21,
-2,
27,
-2,
26,
21,
4,
-52,
-43,
-37,
-8,
4,
15,
-53,
40,
-7,
-1,
-61,
-38,
-2,
-23,
13,
-3,
7,
-34,
-4,
-12,
1,
55,
-31,
-8,
-7,
-19,
42,
-39,
-12,
9,
27,
68,
17,
30,
0,
-13,
16,
-42,
16,
-48,
-54,
31,
14,
-24,
45,
-16,
7,
-17,
-25,
-14,
-45,
-42,
49,
4,
25,
-14,
4,
-11,
29,
-7,
44,
26,
25,
-32,
25,
-3,
40,
17,
-53,
-9,
4,
-3,
36,
3,
-1,
55,
9,
13,
56,
52,
-14,
30,
41,
-7,
-28,
31,
14,
-61,
26,
7,
-2,
-46,
28,
-10,
16,
13,
2,
-18,
0,
-34,
11,
-13,
-11,
78,
7,
13,
50,
-45,
-41,
7,
-23,
-13,
10,
0,
1,
-11,
9,
4,
0,
-47,
-2,
-2,
12,
-23,
0,
36,
-6,
-1,
0,
-15,
-20,
-3,
-14,
31,
5,
73,
39,
3,
54,
33,
-34,
-47,
39,
33,
0,
-45,
34,
10,
28,
-23,
-39,
30,
-42,
35,
1,
-22,
30,
-8,
35,
11,
3,
-36,
6,
-21,
48,
4,
-15,
-20,
6,
27,
-52,
69,
2,
6,
-34,
-17,
-41,
-1,
-34,
-13,
31,
-10,
0,
75,
-33,
-26,
-15,
14,
22,
45,
12,
29,
4,
13,
56,
8,
17,
46,
-27,
0,
-6,
-32,
10,
-2,
-20,
19,
12,
-15,
-18,
-19,
-45,
6,
1,
21,
51,
-41,
-1,
20,
-7,
13,
-9,
-38,
47,
-83,
15,
48,
3,
-11,
20,
-52,
-8,
0,
66,
-21,
7,
-35,
-40,
38,
-45,
16,
10,
-72,
1,
22,
16,
-35,
3,
-25,
26,
-27,
20,
-2,
18,
17,
6,
19,
-55,
-7,
29,
-21,
0,
-29,
-35,
13,
49,
-44,
-44,
2,
11,
-5,
-8,
22,
-47,
-43,
-10,
2,
21,
-28,
-11,
-21,
2,
-2,
0,
-25,
-19,
29,
-57,
19,
15,
7,
-37,
26,
-28,
16,
-28,
-21,
-33,
18,
-32,
9,
9,
-10,
-23,
67,
-27,
10,
25,
-23,
33,
49,
-12,
-31,
-10,
3,
45,
-10,
-23,
-10,
-2,
-15,
29,
15,
-28,
-48,
3,
34,
-47,
-14,
-21,
-25,
-4,
0,
12,
15,
17,
5,
26,
-10,
60,
-72,
-15,
44,
-23,
6,
-52,
11,
-3,
19,
-22,
-22,
6,
15,
-30,
-10,
48,
-13,
-10,
0,
-24,
5,
36,
10,
-30,
-27,
20,
-28,
22,
-18,
-25,
33,
-13,
25,
45,
-38,
-21,
2,
-2,
-8,
4,
-36,
38,
-6,
12,
-42,
24,
35,
10,
7,
29,
-56,
-9,
40,
6,
-5,
-11,
48,
-59,
-21,
35,
2,
-14,
-15,
5,
-4,
-24,
-17,
59,
61,
-9,
-56,
30,
-6,
-39,
-5,
4,
10,
11,
-5,
33,
37,
33,
-3,
69,
11,
18,
4,
12,
9,
-13,
16,
-23,
39,
34,
-25,
-8,
38,
57,
17,
-28,
-5,
-49,
-5,
22,
8,
7,
-19,
24,
-2,
12,
13,
37,
-1,
-24,
-16,
-50,
-54,
23,
-4,
-47,
3,
-13,
-43,
-33,
25,
-42,
35,
2,
21,
34,
56,
38,
11,
-33,
-36,
45,
-27,
-43,
11,
32,
15,
-43,
69,
-1,
83,
-28,
-1,
17,
33,
-47,
-35,
16,
-37,
5,
-22,
9,
-6,
3,
27,
-27,
31,
-2,
-28,
-24,
5,
20,
-3,
-36,
14,
-8,
-1,
-2,
-8,
-37,
2,
8,
38,
70,
25,
6,
34,
5,
-19,
1,
68,
-15,
38,
-23,
-13,
21,
36,
-44,
27,
47,
-63,
-12,
22,
-49,
72,
-11,
-22,
28
] |
McGregor, J.
Plaintiffs aro owners of two adjacent parcels of property in defendant township. In 1963, the first parcel of their property Avas rezoned from industrial to mobile home use, under a township zoning ordinance, and platted as Holly Shores Subdivision. This area Avas developed and mobile homes Avere placed thereon.
Desirous of developing the remaining parcel of the property for mobile home use, the plaintiffs made application for rezoning from “industrial” to “mobile home use.” Following a public hearing, the toAvnship zoning board recommended the zoning change and the Rose ToAAmship Board adopted an ordinance rezoning the property from industrial to mobile home use. Thereafter, a petition was filed for a referendum on the ordinance.
Prior to the referendum, the plaintiffs had submitted to the toAvnship board the proposed plat of the second parcel of their property for mobile home use, Avhich listed the neAv subdivision as Holly Shores No. 2.
Although the first Holly Shores Avas adjacent to Holly Shores No. 2, there aauis no legal access route to the proposed second subdivision. Plaintiffs proposed in their plat a legal access road, through platted and self-OAvned lots 55 to 59 of Holly Shores No. 1 into Holly Shores No. 2, for the purposes of ingress and egress to the neAv subdiAÚsion.
Five days prior to the referendum, Rose ToAvnship rejected the plan for the reasons that the land Avas not considered suitable for platting purposes because there Avas no legal access road, and that the land was subject to a referendum vote.
The result of the election was to nullify the ordinance and the zoning reverted to its previous classification of “industrial.” Although this election was set aside by an action of the plaintiffs, a subsequent election had the same result. Plaintiffs contend that the township board acted in an arbitrary, discriminatory and confiscatory manner, and seek approval of their plan through mandamus.
The trial court found that the lack of a legal access road was sufficient justification to refuse approval of the plat for its intended use, but did not rule upon the constitutionality of the zoning ordinance.
Defendant township contends that the property is landlocked, since there is no legal access road. We find the defendant’s contentions without merit, inasmuch as plaintiffs’ proposed plat indicates that they will dedicate the necessary access roads. These roads would be over plaintiffs’ presently owned property, and therefore, eliminates any contingency that there might not be any legal access roads to the new subdivision.
Although the issue was argued in the lower court but was not passed upon, we are asked to consider the constitutionality of the existing zoning which prohibits mobile home use. This being a matter in equity, we hear it de novo, based on the record below. Frendo v. Township of Southfield (1957), 349 Mich 693, 699.
The rules by which the validity of a zoning ordinance is tested are easily stated but often difficult to apply. Thus, a zoning classification may not prohibit an otherwise lawful use of the property if the present zoning does not bear some real and substantial relationship to the public health, safety, morals, or general welfare. Gust v. Township of Canton (1955), 342 Mich 436, 438.
“Lawful uses of land may be prohibited in certain areas by zoning or building ordinances, if such exercise of police power bears a real and substantial relationship to public health, safety, morals or the general welfare. Roman Catholic Archbishop of Detroit v. Village of Orchard Lake, 333 Mich 389, and cases therein cited. Presumption of the existence of such relationship and, hence, of the validity of the ordinance is resorted to in the absence of proof on the subject, but not when there are proofs upon which a judicial determination thereof may be made, as when the contrary is shown by competent evidence or appears on the face of the enactment.”
Although the plaintiffs have introduced evidence showing the lack of any such relationship, the burden of persuasion is on the plaintiffs to demonstrate the unconstitutionality of the ordinance. Hudson v. Buena Vista Township (1967), 6 Mich App 625, 631.
The plaintiffs presented evidence that if, in fact, the property were used in accordance with the present zoning classification, “Industrial,” it may be injurious to public health. A witness stated that since access is by one point, through the present mobile home subdivision, a hazard might be created in terms of movement of goods through the residential area. Other testimony was presented, in large part unrefuted, to show that the property was improperly suited for industrial uses because of its limited accessibility and its close proximity to a residential area.
Plaintiffs have also introduced a substantial amount of testimony to show that the parcel has little value except as an extension of, and use in conjunction with Holly Shores Subdivision. An examination of the proofs reveals the validity of plaintiffs’ contentions. Nevertheless, the mere fact that the property has a lesser value under the pres ent zoning cannot invalidate a zoning ordinance. Lamb v. City of Monroe (1959), 358 Mich 136.
The reasonableness of the proposed classification does not appear to be seriously contested. The property is adjacent to another mobile home subdivision, also owned by plaintiffs, which is ready to expand. Although we note this factor, it is not controlling.
The fact remains that the defendant township board did initially agree with plaintiffs and did rezone the land. The rezoning was nullified by virtue of the referendum vote which caused the land to revert to its prior classification. This Court holds that a referendum vote may not sanction and legitimize a zoning classification which is arbitrary, unreasonable and discriminatory. Upon consideration of the factors here involved, we find that the denial of plaintiffs’ proposed zoning classification was unconstitutional.
The decision below is reversed so that a decree may enter in favor of the plaintiffs not inconsistent with this opinion. Costs to the prevailing parties.
All concurred.
Under the former plat act, MCLA § 560.1 et seq., and Stat Ann 1953 Rev § 26.431 et seq., the township board was the governing body to “determine as to whether the lands are suitable for platting purposes.” | [
0,
32,
-36,
-49,
-4,
0,
17,
47,
-4,
54,
-17,
-29,
52,
59,
14,
-32,
31,
-3,
-21,
51,
-27,
-59,
-4,
36,
-14,
8,
26,
12,
-30,
78,
3,
-44,
-14,
44,
-19,
0,
10,
8,
26,
-4,
9,
16,
-38,
-29,
7,
5,
40,
9,
-7,
9,
-33,
29,
-7,
9,
-23,
16,
-5,
-31,
-21,
13,
-34,
39,
-32,
23,
68,
3,
24,
-8,
16,
-46,
-45,
0,
-58,
-34,
43,
19,
-3,
-9,
-11,
7,
-37,
38,
72,
28,
-40,
33,
-73,
-35,
-22,
-12,
-5,
-23,
-11,
47,
21,
72,
-15,
-41,
5,
-40,
7,
43,
31,
13,
-16,
11,
-12,
-43,
61,
-16,
-34,
2,
14,
-5,
23,
-21,
-6,
25,
16,
-27,
13,
-24,
24,
-40,
-13,
-32,
7,
5,
-58,
-9,
18,
31,
52,
30,
14,
21,
-12,
-26,
41,
22,
20,
23,
38,
9,
14,
-29,
14,
-63,
-56,
-30,
-10,
4,
-26,
36,
-17,
3,
54,
12,
39,
31,
-5,
2,
19,
9,
-47,
-36,
-42,
59,
-33,
-4,
40,
-20,
0,
-6,
-7,
-35,
2,
75,
-34,
20,
-13,
-7,
-1,
25,
-65,
-38,
8,
-34,
-30,
-28,
53,
-30,
14,
-65,
1,
17,
-32,
13,
-50,
26,
-25,
0,
45,
-27,
16,
-49,
-24,
-14,
-23,
11,
-25,
-38,
-63,
-17,
43,
0,
24,
13,
44,
-13,
7,
-21,
4,
20,
-57,
32,
-28,
-66,
38,
-43,
18,
-6,
1,
63,
-48,
24,
-27,
2,
-2,
-3,
19,
50,
-22,
-7,
-52,
29,
25,
-36,
0,
10,
7,
-31,
-52,
-31,
-20,
7,
-34,
14,
31,
0,
44,
27,
-8,
11,
-30,
57,
2,
-9,
-66,
53,
-82,
48,
-13,
18,
-95,
12,
26,
-28,
14,
11,
3,
29,
28,
16,
-5,
45,
-55,
30,
2,
-20,
-14,
9,
-26,
31,
-11,
-43,
37,
-55,
-7,
-10,
-1,
30,
-16,
-19,
41,
17,
9,
7,
67,
11,
31,
-24,
21,
12,
4,
1,
33,
-12,
0,
-38,
-10,
11,
32,
23,
0,
16,
37,
-37,
-11,
28,
26,
-6,
30,
33,
53,
5,
-4,
-31,
-31,
0,
37,
22,
37,
20,
28,
3,
-74,
-28,
-6,
-51,
22,
2,
-19,
-10,
-41,
-10,
-22,
-25,
-38,
26,
13,
-3,
-30,
-10,
-32,
-41,
12,
11,
-2,
33,
37,
12,
2,
47,
23,
-25,
-3,
35,
-27,
57,
8,
0,
24,
16,
77,
12,
-30,
-19,
-4,
-37,
-41,
-40,
-17,
4,
9,
-48,
15,
31,
28,
-9,
31,
9,
-24,
27,
-68,
11,
6,
-13,
2,
0,
-37,
-4,
44,
-36,
-35,
5,
18,
-35,
-6,
-12,
-1,
4,
17,
-42,
-9,
-24,
-16,
9,
-8,
74,
-76,
26,
5,
-24,
23,
5,
-16,
-17,
-30,
13,
-32,
51,
-23,
-11,
-45,
-82,
-34,
14,
-7,
-6,
-6,
51,
-29,
-21,
-46,
-32,
22,
10,
25,
-40,
28,
-19,
-25,
16,
-17,
-50,
-49,
0,
6,
-48,
-60,
79,
29,
45,
21,
3,
44,
45,
-53,
15,
29,
-11,
-59,
-2,
-5,
-22,
21,
56,
15,
47,
28,
42,
-3,
44,
61,
-4,
7,
-1,
3,
52,
-7,
57,
-49,
-19,
14,
16,
-36,
16,
6,
27,
0,
-25,
-1,
51,
-11,
29,
25,
-14,
15,
1,
35,
-19,
-25,
-51,
24,
16,
28,
8,
-12,
4,
-8,
-8,
23,
15,
-9,
-20,
-34,
18,
-24,
4,
-5,
37,
-39,
-7,
-9,
-1,
-28,
-16,
13,
4,
-12,
-3,
-32,
-21,
11,
-22,
-60,
-34,
-14,
10,
-40,
32,
10,
-7,
61,
-31,
12,
-22,
52,
0,
4,
-31,
21,
-37,
-2,
43,
-12,
-1,
-14,
26,
-1,
-2,
-10,
-38,
25,
-14,
5,
32,
-11,
17,
-18,
-21,
-4,
0,
41,
-11,
-40,
34,
3,
-22,
23,
-20,
-23,
-16,
-11,
-23,
16,
-17,
-43,
-2,
0,
-53,
-42,
45,
30,
31,
-2,
-27,
52,
-19,
19,
32,
-31,
22,
12,
-4,
12,
42,
3,
36,
0,
-2,
18,
4,
44,
-11,
-24,
35,
20,
-42,
-5,
-20,
-27,
-20,
-44,
6,
2,
2,
-44,
22,
-47,
55,
-20,
13,
-15,
17,
5,
-37,
-1,
5,
39,
-17,
21,
9,
-33,
-71,
1,
-32,
29,
27,
-17,
26,
10,
1,
9,
-19,
2,
-1,
30,
27,
-13,
-17,
-40,
-23,
-17,
3,
4,
37,
17,
4,
14,
-6,
4,
3,
-39,
-17,
-33,
11,
-28,
28,
5,
49,
-2,
38,
-56,
107,
48,
-3,
-3,
-28,
-15,
-35,
27,
-1,
16,
20,
7,
-2,
12,
47,
8,
-17,
-37,
-48,
0,
-11,
15,
-48,
27,
22,
-24,
59,
-29,
-22,
-6,
-16,
5,
4,
23,
-25,
6,
-20,
0,
4,
43,
-2,
0,
24,
-24,
59,
-5,
-11,
-21,
23,
-6,
-61,
-19,
9,
5,
10,
10,
-62,
-50,
16,
13,
-47,
22,
-2,
-18,
12,
-46,
22,
-55,
-27,
-16,
2,
-14,
-12,
5,
8,
-35,
-8,
37,
-45,
-16,
-24,
-5,
-42,
4,
46,
-19,
16,
-30,
0,
-26,
51,
11,
1,
40,
-23,
23,
67,
-42,
55,
5,
-5,
-74,
-18,
9,
17,
31,
-13,
-11,
-12,
45,
27,
10,
51,
-31,
3,
30,
-25,
-19,
-13,
-13,
27,
70,
12,
23,
38,
48,
-10,
9,
3,
-54,
-57,
28,
4,
16,
-30,
-15,
-40,
-21,
-22,
-36,
20,
11,
14,
14,
14,
-71,
12,
8,
4,
-18,
-13,
11,
2,
-23,
45,
83,
4,
-29,
0,
-31,
9,
-10,
-60,
37,
69,
-1,
-25,
31,
13,
50,
-29,
-39,
-58,
-22,
30,
-36,
-5,
53,
13,
19,
-33,
0,
45,
33,
15,
13,
49,
5,
-4,
-5,
1,
29,
5,
-29,
-32,
-13,
23,
-4,
-1,
-24,
-39,
9,
20,
8,
-11,
-58,
-23,
2,
-30,
-33,
-2,
-13,
-3,
2,
61,
58,
6,
-7,
-33,
-49,
-20,
-17,
15,
25,
36,
15,
-11,
18,
-1,
24,
27,
13,
-20,
-14,
11,
-23,
27,
-34,
22,
-24,
-9,
9,
16,
-2,
-40,
-21,
17,
18,
15,
-30,
8,
-34,
-26,
-57,
-12,
-26,
50,
23,
12,
15,
-49,
17,
0,
-2,
1,
-70,
17,
36,
4,
9,
-5,
2,
13,
0,
4,
-5,
-45,
11,
31,
-3,
-7,
-16,
-27,
-52,
-27,
19,
-36,
47,
-1,
-2,
-2,
-38,
15,
10,
-23,
22,
29,
-17,
7,
8,
-12,
71,
7,
8,
-9,
-41,
37,
56,
10,
25,
30,
-31,
6,
-30,
16,
19,
-17,
-20,
-17
] |
Per Curiam.
This case is submitted on the people’s motion to affirm pursuant to GCR 1963, 817.5(3). Represented by counsel, defendant pled guilty to unauthorized use of a motor vehicle contrary to MCLA § 750.414 (Stat Ann 1954 Rev § 28.646). Following denial of his motion to withdraw the plea and vacate sentence, defendant appeals as of right.
Defendant argues that the trial court failed to determine with a reasonable degree of certainty whether he committed the offense charged. A review of the transcript reveals that the trial court fulfilled its responsibilities under GCR 1963, 785.3 (2). Moreover, it is well settled that a convicted defendant no longer enjoys the presumption of innocence, and he has the burden of showing something more than technical noncompliance with the court rules in order to vacate a guilty plea. People v. Nelson (1969), 18 Mich App 177.
The motion to affirm is granted. | [
38,
13,
0,
75,
2,
22,
0,
-13,
-11,
14,
2,
-38,
1,
-79,
-10,
-7,
5,
23,
41,
-13,
-17,
-17,
22,
-47,
6,
-69,
15,
12,
-13,
-1,
8,
18,
-31,
-37,
1,
-23,
8,
6,
9,
28,
-7,
9,
-24,
33,
-4,
-43,
-19,
-2,
12,
0,
23,
-5,
-27,
0,
-31,
-24,
-13,
0,
25,
25,
-13,
32,
-15,
-5,
-66,
-46,
-2,
57,
-43,
-10,
11,
21,
9,
15,
7,
70,
25,
45,
9,
50,
-20,
10,
37,
6,
1,
15,
53,
-28,
35,
-54,
11,
-4,
-42,
-80,
-12,
14,
3,
-43,
31,
-80,
-85,
-16,
17,
51,
22,
-4,
-21,
-15,
-11,
-42,
-46,
-37,
10,
-21,
-19,
-30,
-3,
-2,
-10,
-72,
-5,
-41,
51,
51,
14,
-11,
-16,
1,
-36,
49,
0,
45,
-20,
-59,
28,
32,
37,
-32,
9,
21,
-22,
41,
66,
18,
8,
16,
-15,
8,
3,
8,
-16,
32,
-38,
17,
9,
-15,
-13,
-47,
-17,
28,
-31,
27,
-26,
-26,
-11,
-20,
-30,
58,
-1,
-40,
14,
-21,
40,
-13,
7,
0,
-31,
41,
-50,
7,
-15,
48,
10,
22,
10,
-12,
-16,
11,
-47,
-47,
-54,
26,
23,
-29,
43,
28,
-1,
50,
-8,
3,
-24,
5,
-10,
7,
25,
3,
-12,
-13,
28,
23,
-25,
-35,
8,
-59,
3,
-7,
27,
-14,
15,
7,
-25,
-46,
8,
5,
29,
19,
19,
12,
-22,
23,
-7,
12,
5,
28,
-42,
43,
17,
-34,
37,
-4,
-18,
-34,
49,
-7,
-6,
8,
17,
15,
2,
-45,
11,
-45,
22,
2,
-38,
0,
50,
-4,
-45,
0,
25,
67,
-11,
12,
-70,
51,
-50,
-18,
-24,
-5,
31,
28,
-10,
32,
16,
-5,
-28,
45,
-3,
8,
23,
-7,
24,
31,
-39,
37,
-7,
9,
12,
-38,
28,
3,
-18,
16,
29,
-60,
-6,
2,
-72,
6,
51,
-21,
10,
-27,
0,
-32,
25,
-26,
-28,
-9,
2,
51,
-1,
32,
11,
-14,
25,
-18,
56,
-21,
-48,
10,
-23,
-25,
-24,
-12,
44,
-32,
20,
-43,
-32,
28,
-19,
-13,
34,
-17,
9,
-6,
8,
14,
23,
-20,
-4,
-30,
-23,
7,
11,
14,
-19,
-9,
-14,
-12,
14,
-30,
-12,
-6,
-9,
-52,
-13,
-46,
0,
-22,
3,
-12,
49,
15,
-14,
-11,
-8,
23,
-25,
-56,
-19,
-12,
-42,
-13,
21,
-45,
-56,
-1,
-17,
-34,
25,
9,
28,
-17,
-37,
12,
-25,
2,
-36,
-36,
-22,
-61,
-3,
49,
22,
12,
42,
-25,
1,
32,
11,
-27,
-29,
-16,
11,
15,
25,
-18,
-8,
57,
28,
82,
25,
-24,
22,
24,
52,
-47,
-14,
-37,
-6,
15,
16,
31,
23,
2,
33,
-21,
9,
5,
20,
-17,
34,
75,
-17,
0,
63,
16,
-37,
-34,
18,
-9,
7,
-33,
-42,
25,
-50,
-22,
21,
29,
-4,
-36,
-25,
-2,
42,
-3,
-12,
0,
-10,
-20,
13,
0,
55,
-61,
-37,
-12,
66,
-1,
32,
31,
-28,
31,
-15,
-21,
9,
14,
-18,
21,
8,
19,
-26,
-44,
17,
-11,
-26,
-31,
40,
-17,
-19,
12,
2,
40,
18,
18,
-44,
-17,
-22,
15,
-21,
-3,
-59,
27,
58,
4,
-9,
-15,
75,
38,
2,
23,
-8,
29,
5,
18,
29,
-22,
4,
27,
10,
25,
29,
-38,
21,
-9,
-13,
-60,
11,
20,
32,
-27,
34,
-8,
-10,
4,
-46,
-15,
23,
-4,
23,
34,
-37,
-7,
14,
15,
-47,
1,
0,
2,
-35,
22,
11,
-16,
-46,
-37,
-30,
-1,
12,
-29,
-27,
-1,
67,
0,
-37,
22,
1,
-42,
39,
-10,
66,
32,
-24,
-27,
-50,
-8,
23,
-30,
-27,
8,
49,
46,
-28,
-20,
-31,
-7,
-11,
24,
-5,
-48,
-64,
38,
39,
-39,
-16,
-14,
-16,
-14,
1,
27,
57,
-30,
-55,
42,
55,
1,
23,
-20,
-14,
-21,
85,
3,
-22,
18,
-9,
-16,
-16,
-26,
-5,
33,
-49,
29,
18,
-40,
-14,
-45,
-55,
7,
-3,
-24,
0,
21,
-41,
-3,
-45,
33,
-21,
66,
-15,
-26,
6,
81,
22,
-39,
29,
30,
0,
-9,
-42,
2,
-38,
31,
-3,
8,
44,
0,
-28,
54,
38,
-2,
26,
-8,
-41,
-33,
20,
42,
-20,
-1,
35,
34,
-42,
-22,
7,
59,
32,
9,
6,
0,
-3,
-33,
-19,
-42,
30,
-21,
0,
-41,
-6,
17,
14,
6,
3,
49,
29,
7,
6,
-5,
-1,
16,
22,
50,
-16,
55,
2,
21,
-27,
-2,
-22,
1,
0,
10,
-52,
46,
-14,
18,
-35,
-1,
-29,
-2,
-18,
5,
-20,
-10,
-15,
2,
-2,
35,
-7,
-43,
45,
-74,
-4,
-28,
18,
13,
-16,
-7,
46,
-11,
-21,
20,
-13,
-11,
-27,
14,
-43,
5,
-20,
17,
19,
-29,
40,
-22,
6,
48,
27,
33,
44,
-26,
-27,
-22,
-7,
0,
-20,
-18,
-57,
24,
-27,
54,
25,
32,
-42,
-20,
14,
-20,
-93,
52,
-10,
5,
37,
20,
18,
-34,
-7,
5,
-26,
0,
-25,
5,
-51,
-3,
67,
23,
-9,
60,
59,
45,
25,
-24,
-16,
9,
-21,
-12,
6,
-19,
-48,
-47,
46,
11,
35,
-44,
36,
30,
-15,
-17,
37,
4,
26,
13,
-2,
-7,
51,
30,
-51,
13,
-36,
-2,
35,
-34,
-8,
-34,
-6,
-57,
39,
53,
-66,
-11,
64,
-19,
-14,
-25,
-36,
0,
-2,
19,
32,
47,
53,
14,
56,
26,
50,
-4,
-50,
-23,
-11,
28,
-15,
21,
21,
-55,
44,
-3,
-50,
-3,
-17,
16,
-7,
6,
6,
-62,
15,
-17,
52,
36,
2,
-6,
21,
-7,
-15,
55,
-18,
-37,
16,
0,
28,
-27,
-5,
-39,
-66,
2,
28,
-6,
-31,
1,
-39,
16,
-8,
-32,
60,
-21,
22,
20,
-9,
-33,
27,
17,
65,
25,
-24,
18,
-11,
37,
20,
-8,
7,
-54,
-6,
19,
25,
-22,
1,
42,
6,
36,
-7,
-18,
-9,
-20,
-17,
21,
-16,
-2,
8,
-55,
8,
30,
32,
-38,
5,
0,
-2,
-15,
-49,
-2,
-31,
-7,
-45,
-18,
-31,
14,
9,
-16,
-4,
-10,
19,
22,
0,
-29,
-21,
-14,
-8,
0,
-9,
-41,
23,
-8,
-7,
-13,
3,
84,
-4,
-24,
-12,
-14,
-2,
3,
10,
15,
30,
-26,
40,
-26,
5,
-34,
0,
3,
-6,
44,
-45,
7,
25,
-16,
-30,
-20,
-9,
0,
43,
-30,
-47,
13,
-30,
20,
15,
-32,
10,
-11,
0,
-9,
-7,
55,
0,
19,
57,
22,
10,
19,
20,
-27,
7,
12,
-33,
20,
-55,
22
] |
McGregor, J.
Defendant was charged with the crime of interfering with the custody of a minor, pursuant to CL 1948, § 750.138 (Stat Ann 1962 Rev § 28.333). He was tried in circuit court on August 10, 1968, and the jury found him guilty as charged. Defendant appeals his conviction.
The victim in question was a 15-year-old minor, who had a history of being a runaway. On June 27,1967, the Kent County probate court ordered her to be held in temporary custody of the juvenile court, and to remain in detention until placed in a suitable girls’ school. On August 22, 1967, she was placed in the permanent custody of the Barat Home, a private institution.
Defendant was a shift supervisor at the Kent County children’s home. The complainant was in that home for part of the interim period, between June 22 and August 22, 1967, during which time she became acquainted with the defendant. The minor testified that she looked to defendant for advice and thought of him as a “big brother.”
After several weeks at the Barat Home, she decided to run away. She testified that she phoned the defendant and made arrangements with him to pick her up in Detroit at a friend’s apartment the following day. Defendant was alleged to have driven the complainant and another girlfriend to Grand Rapids, where they stayed at his apartment until the girls found a place of their own. During the time the complainant was in Grand Rapids, she found various jobs as a babysitter, and lived with a prostitute. When she left this residence, she returned to the home of the defendant; he took her to her sister’s home, and she subsequently surrendered herself to the juvenile authorities.
Defendant contends that his conduct, as charged, does not constitute a crime under CL 1948, § 750.138 (Stat Ann 1962 Rev § 28.333). The pertinent part of the information charging defendant reads:
That on the 14th day of September, 1967, at the City of Grand Bapids, County of Kent, and on divers other times and days between that date and the 24th day of April, 1968, Peter Bol did unlawfully interfere or attempt to interfere with the legal custody of Barat Home having custody under order of Probate Court, Juvenile Division, of the County of Kent, over a delinquent child, to-wit: Bonnie Hudson, also known as Bonita Cyranowski, by aiding and assisting her in running away from the Barat Home and by harboring her in an apartment, and otherwise interfering with the custody of said minor child, contrary to the provisions of § 28.333 of Michigan Statutes Annotated, as amended * * * .”
The statute reads:
“Any person who shall in any manner interfere or attempt to interfere with the custody of any dependent, neglected or delinquent child who has been adjudged to be such pursuant to Act No. 6 of the Public Acts of 1907, Extra Session, as amended, being sections 12834 to 12849, inclusive, of the Compiled Laws of 1929, subsequently to the making of an order of commitment to a state institution or otherwise, in accordance with said act and pending the actual admission and reception of such child as an inmate of the institution, school or home to which commitment is made; and, any person who shall entice such neglected, dependent or delinquent child from and out of the custody of the person or persons entitled thereto under the order of the court or who shall in any way interfere or attempt to interfere with such custody; and any person who shall entice or procure any such child committed as aforesaid to leave and depart from any hospital or other place where such child may have been placed pursuant to the order of the court for the purpose of receiving medical treatment pending admission into the state institution, school, home or other institution or place to which commitment may have been made, shall be guilty of a misdemeanor, punishable by imprisonment in the county jail not more than one year, or by fine of not more than 500 dollars.” CL 1948, § 750.138 (Stat Ann 1962 Rev § 28.333). (Emphasis added.)
Defendant argues that a reading of the entire statute reveals that the legislative purpose is to make it unlawful to interfere with the custody of any dependent, neglected or delinquent child who has been adjudged to be such, pursuant to the juvenile court act, and who is in temporary custody, pending his admission and reception at the final place of custody. He asserts that inasmuch as the complainant was admittedly in her final place of custody at the time of the alleged offense, this would not constitute a crime under the statute.
Defendant attempts to add the word “interim” before the term “custody” and thereby preclude himself from being within the statute. He envisions the statute as protecting dependent, neglected or delinquent minors pending their admission or reception at a final place of custody, but not protecting them once they have reached their final place of custody. AVe cannot agree with defendant’s conclusions. A minor delinquent is in need of protection against ill winds as much after the granting of permanent custody as during the interim period. His contention is without merit.
Defendant alleges error in the trial court’s refusal to permit him to make a separate record of a witness’s testimony, pursuant to OCR 1963, 604. The witness in question was a psychologist who had examined the complaining witness at the request of the juvenile court for the purpose of assisting the juvenile authorities. Defendant offered to make a special record pursuant to (K’R 1963, 604, which reads:
“If an objection to a question propounded to a witness is sustained by the court, the examining attorney may make a specific offer of what he expects to prove by the answer of the witness, or by leave of court, may examine the witness in relation thereto. The court may require the offer to be made or the testimony taken out of the hearing of the jury. The court may add such other or further statement as clearly shows the character of the evidence, the form in which it was offered, the objection made and the ruling thereon.”
A commentary on GCR 1963, 604, is provided in 3 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 377:
“Rule 604 provides alternative methods for making a record of excluded testimony, either by the examining attorney making a specific offer of what he expects to prove, or by examining the witness in relation thereto. The first alternative is available as a matter of right, whenever testimony has been excluded, or an objection to testimony has been sustained.”
The commentary states further:
“It has always been understood that a party offering evidence which the court ruled to be inadmissible had a right to state on the record the substance of the proof that he proposed to produce.”
The prosecution contended that the testimony would violate the privilege of CL 1948, § 712A.23 (Stat Ann 1962 Rev § 27.3178 [598.23]), which is designed to protect juveniles in the disposition of their cases with the authorities; the judge also added that this was privileged information between doctor and patient. MCLA § 338.1018 (Stat Ann 1969 Rev § 14.677[18]).
We hold that the defendant should have been allowed to make a special record of the psychol ogist’s testimony. The trial transcript reveals that the question of the complainant’s credibility was very much at issue. There is trial testimony as to statements she is alleged to have made prior to trial which, if made, did not coincide with her testimony at trial. A professional opinion by an impartial witness regarding the credibility of her answers would be relevant here. The complainant’s ability to fabricate the facts has a legitimate bearing on her credibility.
Furthermore, we do not find the trial court’s objections to the doctor’s testimony were well founded. This Court concludes that there is no basis for holding that a doctor-patient privilege exists, since before such a finding, this Court must conclude that there did exist a true doctor-patient relationship. Here, the complainant was ordered by the court to submit to the doctor’s examination, with information thus obtained to be used by the authorities in the disposition of the complainant.
In light of People v. Brocato (1969), 17 Mich App 277, it does not appear that this information would be barred as being privileged under the probate code. Defendant in Brocato was charged with taking indecent liberties with a female under the age of 16 years; defendant had sought and been refused discovery of some juvenile records and psychiatric reports relating to the complainant. The court therein said:
“It would appear that under People v. Smallwood (1943), 306 Mich 49, the complainant’s experience with juvenile authorities was a proper subject of trial inquiry. Perhaps the records would contain something that would have a legitimate bearing on the credibility of the complainant. But we can only guess because these records are not before us. We suggest that before retrial of this case, the trial judge inspect the juvenile records as well as the other materials requested by the defense, and after determining what portions should be discoverable to the defense, preserve a copy of what is refused in the event that his rulings are reviewed.” Brocato, supra, 286. See also People v. Coleman (1969), 19 Mich App 250.
For the reasons herein stated, we reverse and remand.
All concurred. | [
19,
0,
-31,
34,
-9,
-45,
-28,
9,
-22,
-13,
-6,
-23,
-28,
-47,
42,
-18,
-48,
0,
-22,
-11,
62,
-11,
-21,
9,
20,
-29,
33,
-10,
-46,
-16,
7,
25,
29,
-4,
24,
-14,
67,
-42,
67,
22,
51,
-29,
-12,
-39,
-6,
-3,
42,
38,
24,
-41,
12,
-8,
6,
46,
16,
26,
38,
-12,
18,
37,
-30,
2,
-28,
-71,
8,
-46,
31,
25,
-33,
5,
69,
-5,
-52,
7,
31,
73,
-26,
8,
49,
100,
20,
14,
2,
7,
-10,
-52,
-27,
-1,
-61,
14,
-30,
24,
-61,
-18,
19,
-14,
-24,
21,
15,
-59,
-9,
3,
51,
48,
-13,
44,
7,
-42,
-40,
17,
-39,
-17,
58,
13,
18,
-39,
4,
-35,
-29,
-18,
12,
0,
57,
-33,
17,
-25,
-30,
-21,
37,
-31,
-44,
30,
37,
-56,
-6,
46,
9,
-30,
41,
-50,
-14,
-39,
30,
26,
18,
-1,
12,
-37,
53,
15,
-65,
12,
15,
44,
31,
13,
-8,
-20,
-37,
-31,
-16,
-30,
12,
4,
-29,
-54,
-35,
78,
-33,
2,
-1,
20,
-19,
14,
-28,
-36,
-46,
24,
-29,
11,
23,
-6,
0,
31,
0,
-9,
-3,
-41,
-29,
-13,
1,
8,
-2,
-2,
22,
55,
35,
15,
-29,
-13,
30,
4,
46,
14,
30,
-45,
15,
15,
-8,
-63,
6,
6,
0,
-32,
-63,
-28,
-48,
22,
6,
3,
-45,
-19,
-4,
19,
-10,
-72,
-24,
-14,
-27,
16,
61,
5,
-11,
5,
-35,
9,
-4,
-33,
35,
86,
27,
4,
14,
8,
69,
42,
-24,
10,
12,
8,
-22,
9,
-38,
1,
-36,
-3,
14,
-11,
10,
17,
-20,
-16,
-30,
42,
31,
54,
-14,
30,
-70,
-78,
-8,
37,
11,
-25,
-60,
-20,
3,
37,
5,
-2,
-18,
12,
14,
49,
10,
-28,
-3,
44,
12,
3,
-11,
6,
0,
-34,
9,
-29,
26,
13,
-68,
18,
29,
24,
27,
-20,
-41,
-15,
63,
34,
15,
1,
10,
14,
-24,
5,
14,
-15,
5,
-21,
25,
-3,
5,
-22,
-19,
25,
-23,
-16,
38,
-28,
48,
14,
17,
1,
-7,
13,
18,
-11,
7,
7,
28,
9,
28,
-1,
46,
-13,
16,
22,
-6,
49,
-11,
-27,
-2,
-29,
49,
-20,
-38,
-4,
-42,
-18,
-10,
-3,
9,
-9,
-56,
-31,
-27,
26,
22,
-22,
15,
22,
24,
-57,
-1,
21,
18,
-5,
2,
6,
2,
65,
40,
-10,
-6,
9,
31,
-31,
-19,
-23,
44,
-18,
-23,
-7,
22,
-48,
18,
-38,
7,
10,
35,
-42,
30,
20,
35,
52,
-22,
17,
-2,
7,
-7,
-41,
-8,
29,
20,
28,
4,
-23,
1,
0,
-11,
-3,
20,
33,
71,
-10,
50,
20,
31,
-26,
69,
-10,
1,
46,
0,
33,
30,
10,
-44,
11,
12,
-33,
-17,
-20,
-22,
51,
23,
11,
-53,
-50,
41,
5,
18,
24,
-20,
-3,
-3,
29,
17,
54,
-56,
27,
5,
-29,
49,
46,
21,
-53,
-39,
-13,
-18,
23,
-42,
-51,
-75,
34,
-7,
20,
-38,
67,
8,
20,
11,
-21,
0,
13,
22,
-29,
4,
-61,
39,
0,
-9,
-15,
-9,
52,
51,
6,
-53,
16,
-9,
30,
-8,
-2,
44,
35,
52,
-11,
54,
51,
-8,
6,
12,
15,
-30,
6,
-4,
-28,
45,
-14,
43,
3,
40,
7,
15,
-14,
-2,
1,
29,
-57,
-55,
43,
30,
-6,
-22,
11,
47,
5,
-3,
19,
-7,
14,
32,
18,
-25,
26,
6,
-54,
11,
13,
-13,
-28,
18,
-7,
9,
-20,
-5,
-2,
-3,
18,
-33,
-36,
1,
48,
59,
-21,
10,
-46,
-68,
3,
-6,
-7,
25,
0,
-20,
13,
-57,
31,
6,
39,
-7,
-21,
5,
39,
-47,
10,
-22,
15,
34,
5,
14,
6,
-5,
0,
-17,
-13,
53,
-77,
-13,
-41,
-20,
-27,
22,
-22,
-18,
-8,
36,
-23,
38,
-3,
-34,
-37,
35,
-6,
-30,
-8,
-6,
25,
-22,
7,
-56,
14,
-31,
-10,
-25,
49,
-26,
-20,
-27,
-24,
4,
22,
-25,
-15,
8,
1,
11,
8,
0,
-3,
-35,
-35,
27,
54,
-20,
13,
-49,
32,
9,
-17,
-8,
-5,
-58,
50,
-18,
8,
0,
-26,
-29,
-5,
40,
-6,
16,
9,
-25,
17,
38,
-26,
24,
-21,
-9,
-20,
-51,
26,
16,
28,
-50,
8,
-34,
-6,
47,
-4,
-3,
7,
-12,
-32,
14,
-6,
6,
-8,
-22,
-26,
34,
-4,
35,
23,
18,
-14,
-38,
8,
-10,
19,
-41,
16,
46,
-1,
-41,
8,
31,
-34,
21,
-33,
0,
39,
2,
3,
6,
11,
-43,
-38,
-43,
32,
-68,
8,
20,
2,
5,
-21,
37,
-51,
33,
-35,
25,
0,
-15,
27,
-33,
-4,
-15,
5,
0,
35,
-17,
-14,
-9,
-43,
-21,
-7,
14,
-26,
-13,
-16,
81,
28,
-7,
-4,
-44,
25,
64,
-35,
-66,
-5,
-3,
29,
-5,
-42,
-14,
1,
-27,
-33,
45,
-37,
-66,
0,
-4,
-1,
-39,
23,
-10,
13,
2,
-60,
42,
30,
-6,
-7,
12,
-2,
-1,
-11,
13,
-7,
10,
-10,
-11,
8,
8,
47,
38,
-1,
35,
-34,
77,
0,
-18,
-4,
-30,
-15,
3,
-24,
-25,
33,
2,
73,
-31,
-47,
-37,
-10,
5,
-15,
15,
-9,
21,
-42,
9,
-28,
-54,
12,
17,
-23,
-28,
-14,
24,
3,
7,
-4,
-28,
-10,
3,
-39,
-9,
25,
5,
21,
23,
-31,
-3,
39,
50,
-24,
42,
-18,
38,
-45,
-69,
2,
45,
33,
10,
42,
11,
-11,
-21,
-1,
-21,
-47,
-22,
29,
17,
-43,
-1,
24,
8,
-50,
26,
67,
27,
-20,
22,
-35,
-59,
28,
1,
3,
40,
-16,
5,
-3,
0,
-58,
-13,
-2,
0,
37,
-8,
-47,
-27,
40,
30,
-10,
-10,
-43,
31,
24,
-74,
-15,
-43,
-34,
17,
-58,
11,
-18,
-27,
0,
49,
15,
-23,
-11,
-3,
49,
28,
-34,
-11,
-79,
12,
25,
8,
-11,
-37,
13,
-37,
37,
-25,
-27,
-46,
-49,
2,
2,
23,
-14,
31,
54,
-12,
-10,
-91,
15,
36,
87,
10,
-16,
-11,
-22,
-31,
-16,
47,
13,
-29,
23,
-21,
-40,
9,
-11,
7,
39,
-2,
29,
17,
-36,
39,
-3,
8,
-19,
-37,
-52,
-14,
5,
-14,
-14,
38,
44,
8,
-47,
-12,
-16,
-39,
-5,
-20,
11,
-1,
21,
-106,
13,
-11,
-25,
29,
17,
3,
24,
14,
-79,
8,
-25,
-33,
49,
-23,
50,
21,
-19,
23,
-27,
-4,
-16,
42,
-9,
23,
1,
42,
13,
9,
23,
18,
-1,
-39,
17,
11,
49
] |
Per Curiam.
This action arose out of an automobile accident involving three cars — one driven by plaintiff, Michael Lahey, one by defendant, William Sharp, and the third by an unidentified driver (who fled from the scene of the accident). The third automobile was owned by defendant Avis Rent-A-Car Systems, Inc. After a jury verdict of $5,500 in favor of plaintiff and against all defendants, and defendants Avis and Chrysler Leasing appeal.
Before commencement of trial, the court ruled that there was a rebuttable presumption in law that the third automobile was being driven with the own er’s consent at the time of the accident. Since Avis had admitted ownership of the vehicle, it was allocated the burden of proving the lack of express or implied consent. Thereafter, Avis introduced testimony in an attempt to rebut the presumption of consent. At the close of Avis’ proofs, the trial court refused to direct a verdict in favor of Avis, electing, rather, to leave the question of consent to the jury’s determination.
The question for review is: Did the trial court commit error in refusing to grant defendant Avis’ motion for directed verdict?
The civil liability act of owners and operators of motor vehicles states:
“The owner of a motor vehicle shall be liable for any injury occasioned by the negligent operation of such motor vehicle whether such negligence consists of a violation of the provisions of the statutes of the state or in the failure to observe such ordinary care in such operation as the rules of the common law requires. The owner shall not be liable, however, unless said motor vehicle is being driven with his or her express or implied consent or knowledge. It shall be presumed that such motor vehicle is being driven with the knowledge and consent of the owner if it is driven at the time of said injury by his or her father, mother, brother, sister, son, daughter, or other immediate member of the family.” MCLA § 257.401 (Stat Ann 1968 Eev § 9.2101). (Emphasis supplied.)
While the statutory presumption does not apply in the instant case because there is no evidence that the driver of the Avis car was a member of Avis’ “immediate family” the common-law presumption of consent does apply. In Hatter v. Dodge Brothers (1918), 202 Mich 97, 102, the Supreme Court said:
“In the absence of such statutory qualification the possession, use and control of an automobile in a public place fairly gives rise to tbe inference that the person so in control is the owner of such property or in lawful possession of it with the express or implied consent of the owner. By statute it is made a felony to take possession of and use a motor vehicle without authority (3 CL 1915, § 15341; PA 1917, No 220), and the presumption of innocence, in the absence of proof to the contrary, attends the driver. Unexplained and undisputed, the reasonable inference of consent by the owner and authority of the driver is such as common sense and common experience usually draws and applies to the possession of those driving automobiles along our highways. A prima facie case was made out by plaintiff’s evidence, putting defendant to its proofs.”
See, also, Detroit Automobile Inter-Insurance Exchange v. Gordon (1968), 15 Mich App 41.
In order to rebut this presumption there must be “positive, unequivocal, strong and credible” evidence to the contrary. Krisher v. Duff (1951), 331 Mich 699, 706.
From the testimony of Avis’ two witnesses it did not appear that the car had been reported stolen or missing or taken without the consent or knowledge of Avis at the time of the accident. Further, there was testimony (albeit conflicting) that there were keys in the vehicle at the time of the accident.
A prima facie case of consent was presented to the jury and properly left for their consideration. See In re Wood Estate (1965), 374 Mich 278, 290, 294.
Affirmed, costs to defendant-appellee. | [
-5,
50,
-9,
1,
11,
-10,
-20,
-10,
10,
-3,
-6,
-7,
-1,
-35,
-7,
-6,
78,
46,
2,
-51,
-1,
-44,
-57,
29,
-13,
-48,
49,
-32,
-30,
15,
48,
28,
20,
-18,
2,
22,
32,
51,
-43,
28,
24,
97,
-7,
-37,
7,
-42,
2,
-24,
42,
0,
23,
13,
4,
-28,
-15,
-18,
7,
27,
-5,
20,
12,
-48,
20,
-6,
-78,
36,
23,
34,
-11,
33,
-49,
13,
-39,
15,
-37,
-54,
-14,
73,
65,
-10,
-7,
-6,
36,
4,
12,
-7,
-32,
23,
-30,
-37,
-31,
-26,
-37,
-11,
0,
44,
0,
-11,
59,
-30,
-43,
-18,
38,
16,
15,
85,
-29,
-6,
-5,
-55,
-14,
0,
-21,
-51,
-11,
-6,
3,
34,
7,
-10,
-26,
-35,
57,
4,
-14,
-56,
7,
-37,
-1,
45,
34,
49,
0,
16,
-18,
-14,
17,
-23,
-2,
40,
-36,
52,
18,
24,
-20,
42,
-8,
22,
28,
5,
0,
27,
2,
-33,
-28,
-30,
-27,
-26,
50,
-22,
20,
8,
-10,
1,
7,
7,
-27,
16,
-1,
23,
61,
21,
36,
-17,
45,
3,
-34,
-28,
-57,
-26,
-23,
49,
5,
13,
-21,
-42,
-15,
12,
-48,
-53,
-21,
2,
-20,
29,
18,
45,
-2,
46,
19,
12,
45,
-37,
10,
-47,
13,
16,
-14,
-20,
17,
-31,
31,
10,
-54,
-56,
-8,
-32,
29,
-41,
-10,
-54,
31,
-13,
-12,
-40,
-51,
-13,
-29,
-31,
-58,
6,
20,
-17,
-31,
12,
-63,
-75,
3,
-72,
18,
4,
68,
28,
11,
-28,
-17,
1,
11,
24,
18,
-16,
35,
-19,
-3,
28,
-48,
-92,
4,
-6,
5,
-13,
-31,
57,
-39,
57,
-47,
13,
-28,
-11,
-5,
-26,
-37,
-4,
-17,
2,
-10,
-53,
-40,
62,
17,
-6,
-8,
-25,
-32,
29,
-24,
35,
26,
56,
-20,
13,
48,
-26,
-25,
9,
2,
8,
52,
25,
-41,
26,
58,
9,
2,
57,
54,
-29,
-26,
30,
-45,
1,
-28,
11,
-18,
23,
30,
-10,
-5,
-37,
58,
-3,
-8,
-6,
-22,
-19,
-22,
-21,
30,
-41,
-24,
-8,
-32,
2,
0,
36,
46,
-49,
-20,
10,
9,
21,
21,
-1,
9,
-29,
22,
29,
37,
16,
-52,
8,
-48,
-32,
-28,
-49,
-32,
-36,
30,
-19,
22,
-18,
29,
-24,
-28,
72,
25,
22,
28,
9,
-24,
114,
27,
-47,
-11,
-26,
-23,
-31,
4,
-9,
-52,
61,
-32,
-37,
0,
-53,
-9,
34,
-55,
-8,
-53,
16,
-7,
1,
-8,
4,
-9,
-38,
-19,
-8,
-5,
0,
-22,
17,
-18,
-70,
10,
-33,
34,
43,
13,
-2,
-29,
8,
31,
11,
14,
10,
22,
-34,
-50,
-24,
17,
-23,
10,
-34,
19,
-30,
-25,
13,
-12,
-15,
13,
-17,
34,
-56,
32,
-16,
23,
-29,
56,
29,
-32,
-7,
-4,
12,
-14,
12,
1,
-12,
10,
-27,
52,
17,
55,
-13,
48,
20,
35,
2,
-5,
-18,
1,
-16,
34,
-16,
33,
-55,
-19,
-6,
19,
-22,
1,
7,
4,
52,
14,
-24,
-28,
28,
-21,
10,
-71,
-13,
20,
-14,
0,
10,
-1,
-37,
-1,
75,
53,
22,
-59,
4,
-57,
-26,
8,
72,
3,
-10,
-10,
17,
-42,
44,
14,
-12,
22,
-39,
-2,
-35,
6,
40,
40,
39,
-26,
-18,
-11,
-61,
11,
-4,
-12,
12,
-19,
17,
-44,
-54,
27,
-6,
-2,
-40,
97,
26,
0,
-35,
-15,
-14,
22,
-17,
-28,
-6,
32,
25,
-2,
-77,
-5,
-6,
59,
13,
0,
29,
-32,
-17,
25,
9,
7,
-17,
60,
-47,
-75,
10,
-26,
27,
55,
-1,
26,
-32,
-27,
3,
63,
-27,
-52,
-33,
0,
-1,
-41,
33,
-11,
2,
-61,
-28,
21,
0,
5,
2,
-73,
28,
12,
29,
10,
-81,
-9,
52,
54,
-28,
53,
-25,
53,
1,
-27,
23,
-35,
26,
-5,
15,
18,
24,
-27,
14,
-3,
-61,
13,
22,
11,
-13,
-2,
-2,
3,
-29,
28,
34,
-9,
18,
-41,
15,
25,
3,
8,
63,
18,
-19,
-31,
18,
-61,
-2,
-5,
25,
31,
45,
30,
-9,
35,
-13,
46,
0,
51,
-36,
20,
-11,
-26,
-66,
-50,
4,
-3,
-31,
10,
14,
-31,
-59,
-22,
48,
-4,
-38,
-31,
17,
68,
9,
-5,
15,
-15,
53,
-2,
12,
46,
57,
64,
43,
-1,
42,
-10,
22,
-47,
-48,
17,
-30,
-13,
22,
18,
-28,
63,
-15,
-49,
-15,
0,
1,
-12,
46,
37,
66,
-55,
31,
-15,
-6,
-56,
4,
-3,
29,
24,
5,
-20,
58,
21,
35,
16,
-32,
11,
64,
6,
5,
-17,
-33,
-21,
3,
30,
-90,
10,
51,
0,
-45,
-18,
-8,
15,
-30,
-8,
-39,
38,
20,
61,
-33,
-8,
-26,
-28,
36,
73,
57,
-16,
-34,
-37,
20,
42,
32,
-15,
-59,
46,
29,
-13,
47,
29,
20,
-14,
-28,
-3,
32,
-21,
-6,
-12,
10,
-18,
34,
17,
-29,
-18,
-22,
54,
-75,
-80,
28,
40,
-41,
-9,
1,
14,
-12,
13,
29,
-18,
-13,
21,
-9,
-17,
10,
52,
30,
31,
23,
-7,
0,
47,
-3,
-21,
20,
34,
59,
-20,
45,
27,
-34,
48,
42,
37,
-63,
2,
-52,
-7,
-10,
29,
5,
58,
-16,
-13,
-35,
45,
-15,
-59,
-19,
6,
11,
30,
-25,
24,
-54,
49,
-35,
-36,
14,
-30,
41,
58,
-38,
-36,
18,
24,
-13,
-25,
32,
38,
0,
-11,
41,
62,
-6,
-5,
30,
-1,
-12,
-20,
-25,
-35,
53,
5,
0,
-32,
-19,
-24,
30,
-21,
-4,
28,
21,
22,
-56,
-7,
0,
-31,
11,
1,
14,
14,
-7,
-14,
61,
39,
-17,
-17,
48,
0,
-40,
22,
-19,
-56,
30,
-1,
22,
34,
-53,
-42,
-6,
8,
5,
37,
-30,
-40,
54,
-39,
-15,
13,
-11,
60,
23,
-36,
48,
17,
37,
30,
11,
38,
41,
-29,
-5,
18,
-17,
-9,
4,
-16,
-11,
-21,
-22,
-52,
10,
-14,
10,
3,
14,
-10,
-21,
10,
10,
-15,
8,
-63,
-6,
18,
38,
-45,
57,
-44,
-31,
-18,
-35,
-27,
-22,
-29,
4,
37,
-19,
13,
0,
-25,
4,
-28,
47,
-19,
-7,
19,
2,
4,
-13,
-45,
-7,
0,
58,
-26,
0,
32,
22,
-42,
-15,
-17,
-27,
-60,
-2,
-34,
15,
-10,
0,
5,
6,
-23,
11,
-46,
-4,
-29,
-29,
-37,
22,
-30,
4,
-14,
15,
36,
-16,
6,
-38,
6,
-24,
-71,
-19,
31,
33,
14,
49,
-26,
29,
14,
2,
17,
5,
-39,
-22,
-14,
-33,
-62,
39,
39,
-17
] |
Fitzgerald, J.
At 9 o’clock on the night of November 4, 1967, two state police officers responded to a call stating that the manager of the Crescent Motel in Jackson was holding a man suspected of trying to pass a forged money order. Upon arriving on the scene, the officers observed the defendant running away from the motel and the manager pointing and stating, “there he goes, right there”.
The officers called for defendant to halt and gave chase while the defendant continued his flight. They were able to head him off in the police car by pulling ahead of him and opening the car door. Upon being told to stop, he broke and ran around the rear of the car into a heavily wooded area. The officers again gave chase, advising defendant several times to stop. One of the officers fired his revolver at the ground before the fleeing man stopped and fell to the ground.
While defendant was lying on the ground, the officers conducted a cursory search for obvious weapons. Upon finding none, all three returned to the police car where a further search was made. This search of the defendant’s person revealed a packet of marijuana. He was arrested and charged with the possession of narcotics, a violation of MCLA § 335.153 (Stat Ann 1957 Rev § 18.1123).
On Sunday, the day preceding the trial, the Jackson Citizen Patriot published two articles concerning the general topic of narcotics. One of the articles consisted of a “man on the street” interview and the response of 13 citizens to the question of whether marijuana should be legalized. The other article, by P. J. Steinchron, M.D., dealt with the symptoms of drug use. Only two members of the jury had read the articles and they stated that they could be fair and impartial. Two more articles appeared in Monday’s Citizen Patriot. One of the two articles was taken from a pamphlet “What You Should Know About Drugs,” and the other was a report of a drug survey to be taken by high school students. Five of the jurors had not seen the articles and of those who had, only one had read as much as the headlines.
With respect to all four articles, the trial judge cautioned the jurors that they were not to read the material. All jurors stated that they could be fair and impartial, and defense counsel at one point stated that he was satisfied with the jury. The jury returned a guilty verdict and appeal followed.
Defendant urges as his first ground for reversal that the court erred in denying his motion to strike the panel and later in denying his motion for new trial because the newspaper articles deprived him of a fair and impartial trial. None of the articles mentioned defendant’s name nor made any mention of his trial.
Only two jurors had read Monday’s articles, and only one had even read the headlines of one of the Tuesday articles. These facts are a sharp contrast to the fact situation in Marshall v. United States (1959), 360 US 310 (79 S Ct 1171, 3 L Ed 2d 1250); Irvin v. Dowd (1961), 366 US 717 (81 S Ct 1639, 6 L Ed 2d 751) and Sheppard v. Maxwell (1966), 384 US 333 (86 S Ct 1507, 16 L Ed 2d 600), which are cited as support for defendant’s position.
The four articles in question can hardly be termed inflammatory. This Court denied a similar claim on much stronger facts in Wayne County Prosecutor v. Doerfler (1968), 14 Mich App 428. As in Doerfler, the possibility of prejudice in the instant case is so remote as to not merit in depth consideration.
The second error claimed is that the marijuana should not have been admitted into evidence as it was obtained as a result of an illegal search and seizure.
The validity of a warrantless search and seizure made incidental to an arrest depends on the validity of that arrest. Beck v. Ohio (1964), 379 US 89 (85 S Ct 223, 13 L Ed 2d 142); People v. Wolfe (1967), 5 Mich App 543. The validity of the arrest in turn depends on whether or not the arresting officer had probable cause to believe a felony was being committed and that the person arrested committed it. MCLA § 764.15 (Stat Ann 1954 Eev § 28.874). See the detailed discussion in People v. Wolfe.
The facts of this case convince us that the officers had probable cause and information sufficient to warrant prudent men to make the arrest. The radio dispatch clearly indicated there was a felony being committed and that the motel manager was holding the suspect. Upon arriving at the scene, the officers found the motel manager outside, pointing to a man running across the road. In attempting to pursue him, the officers advised him of their identity and purpose. He broke and ran; they finally subdued him, searched him, and found evidence of the crime indicated as well as discovering the marijuana.
Chimel v. California (1969), 395 US 752 (89 S Ct 2034, 23 L Ed 2d 685), and Stoner v. California (1964), 376 US 483 (84 S Ct 889, 11 L Ed 2d 856), reiterate the principle that a search and seizure incident to an arrest is reasonable when the arresting officer makes the search in order to remove any weapons the person may have which he may seek to use to resist the arrest or effect an escape. Stoner holds that, to he lawful, searches cannot he remote in time or place from the arrest.
The search which revealed the marijuana was conducted immediately after the three men returned to the car. There was no time to procure a search warrant and defendant was being searched for weapons. This was a conventional shakedown with the accused standing alongside the police car while he was being checked for concealed weapons.
There was probable cause to make the arrest. The search for weapons was conducted immediately thereafter and was a reasonable search incidental to a lawful arrest. The evidence was properly admitted.
Defendant further claims that one of the officers should not have been allowed to testify that he had called to defendant to stop and had warned him that he would shoot. This is claimed to be hearsay evidence, hut it is not.
The statements were made by the witness himself at the arrest and the witness was testifying to this fact. The statements were not offered to prove the. truth of the matter contained therein and did not constitute hearsay evidence.
Affirmed.
All concurred. | [
45,
12,
28,
31,
-30,
-4,
-15,
-5,
-9,
21,
30,
-33,
13,
29,
-10,
7,
10,
0,
48,
-5,
-25,
-36,
-49,
22,
7,
-33,
47,
8,
-18,
-9,
68,
-50,
105,
-44,
11,
33,
5,
-48,
22,
5,
21,
-19,
-12,
17,
-45,
-55,
-43,
-38,
32,
-8,
-5,
-33,
33,
41,
-13,
56,
23,
-13,
1,
21,
-29,
36,
16,
-55,
-8,
22,
-24,
27,
-4,
-5,
11,
12,
12,
-7,
-26,
42,
-34,
19,
-21,
-3,
-72,
67,
18,
37,
-20,
-14,
2,
-92,
25,
-27,
59,
-29,
20,
10,
0,
-22,
-9,
-14,
29,
-17,
-11,
-83,
-59,
-29,
24,
21,
1,
-54,
0,
-1,
-14,
14,
44,
2,
-60,
-52,
29,
-31,
-7,
15,
7,
-24,
16,
-9,
-15,
-55,
-38,
17,
-55,
-33,
20,
45,
44,
-13,
-23,
-21,
48,
-7,
-11,
23,
4,
31,
14,
23,
5,
16,
-12,
57,
-25,
77,
-46,
-24,
-55,
41,
-52,
-32,
-20,
-4,
-29,
22,
-23,
2,
18,
-7,
-3,
-19,
-56,
9,
-12,
9,
-28,
-22,
58,
40,
40,
9,
-22,
-28,
-19,
-45,
-30,
5,
-13,
54,
3,
-65,
29,
-13,
-31,
38,
21,
-13,
-31,
-9,
22,
-21,
4,
-22,
3,
-18,
37,
0,
21,
-49,
-19,
8,
7,
67,
78,
12,
0,
-68,
18,
-31,
-13,
-33,
-47,
17,
37,
-52,
-63,
0,
-42,
-28,
-11,
-35,
-20,
4,
-74,
6,
19,
0,
-3,
26,
-35,
-18,
-6,
-14,
36,
-20,
33,
-16,
-57,
-48,
38,
47,
-26,
-1,
1,
34,
19,
44,
9,
21,
-22,
22,
17,
-44,
8,
8,
22,
48,
-33,
41,
19,
38,
-40,
35,
18,
26,
-20,
-23,
-65,
-24,
10,
16,
-15,
31,
-32,
8,
37,
23,
21,
26,
24,
-51,
16,
39,
7,
-41,
57,
-3,
-59,
6,
11,
11,
91,
49,
-14,
5,
40,
-3,
-41,
-58,
-17,
-4,
33,
10,
-13,
13,
45,
31,
-1,
17,
-13,
-6,
16,
-1,
53,
18,
-14,
5,
-45,
-20,
2,
29,
37,
-30,
-18,
-46,
51,
11,
10,
-47,
-10,
34,
-40,
27,
25,
50,
-59,
-18,
-17,
-6,
18,
9,
11,
46,
-27,
-14,
34,
2,
44,
-50,
0,
17,
-58,
-1,
40,
-52,
10,
22,
1,
38,
-3,
-69,
29,
-30,
9,
12,
6,
-72,
13,
-11,
-3,
28,
76,
-43,
-1,
33,
24,
-32,
21,
-41,
-11,
-28,
-2,
-51,
15,
-2,
-31,
26,
-29,
-7,
-29,
-2,
66,
-4,
56,
-5,
-14,
1,
63,
6,
-37,
25,
-21,
24,
41,
-61,
-27,
-19,
32,
27,
-11,
48,
-41,
3,
-3,
-58,
0,
29,
-2,
-20,
7,
10,
-35,
55,
23,
-16,
6,
-42,
14,
-52,
-65,
33,
-60,
-30,
-10,
18,
-30,
-59,
-6,
38,
47,
-13,
-34,
-30,
21,
47,
-4,
30,
-1,
33,
-54,
56,
-23,
0,
-41,
40,
9,
-37,
-2,
62,
-7,
-10,
-60,
-2,
-22,
-34,
22,
45,
-10,
-25,
-43,
-1,
17,
-16,
-5,
3,
15,
-20,
7,
-54,
24,
-26,
16,
-5,
26,
33,
6,
-4,
5,
-35,
19,
41,
35,
7,
-16,
12,
-10,
7,
-47,
-33,
35,
-13,
28,
53,
-3,
46,
18,
42,
-49,
-4,
-13,
-15,
-12,
18,
-40,
-2,
23,
-10,
0,
0,
-24,
31,
9,
-74,
-45,
-66,
12,
25,
4,
10,
43,
6,
-75,
8,
49,
-26,
36,
-32,
38,
36,
3,
-28,
7,
-50,
23,
7,
-4,
42,
-28,
-65,
-21,
-4,
8,
-22,
-17,
-6,
-58,
5,
17,
33,
7,
19,
2,
36,
60,
14,
-5,
27,
-10,
30,
-18,
-28,
-19,
74,
-9,
0,
32,
5,
9,
45,
22,
-36,
6,
3,
-86,
1,
-45,
16,
25,
15,
15,
25,
-21,
-2,
-28,
-26,
12,
-12,
15,
44,
-4,
-25,
31,
30,
-16,
7,
6,
-15,
0,
-11,
3,
40,
-33,
2,
0,
-11,
-17,
-6,
-8,
20,
4,
-58,
-35,
25,
7,
-43,
-69,
-47,
-32,
9,
-41,
28,
-16,
0,
-51,
-3,
2,
-10,
27,
-13,
23,
33,
-18,
-40,
-20,
22,
-20,
-7,
-1,
39,
-9,
-22,
-23,
4,
-34,
-31,
-2,
65,
-59,
-46,
-34,
-22,
54,
-59,
14,
36,
8,
-25,
10,
-47,
48,
-15,
29,
-6,
33,
-52,
-11,
-17,
16,
-5,
-22,
9,
-3,
0,
21,
25,
-31,
88,
30,
33,
11,
57,
34,
32,
-16,
-32,
-9,
28,
-23,
-7,
-30,
-19,
23,
-21,
-14,
0,
34,
41,
-17,
-21,
-19,
3,
-6,
-14,
-14,
2,
-19,
14,
31,
9,
46,
-10,
19,
-7,
28,
-55,
13,
-46,
-22,
22,
-23,
33,
2,
9,
5,
-16,
-31,
-44,
-7,
-42,
-12,
24,
-30,
-28,
-15,
3,
15,
-8,
70,
-17,
0,
22,
35,
19,
-41,
-37,
11,
19,
-11,
-60,
-30,
30,
7,
58,
55,
17,
-35,
-62,
4,
-41,
-40,
28,
17,
-31,
-48,
4,
6,
47,
-18,
-2,
-8,
7,
-39,
15,
12,
-26,
-25,
-16,
-33,
8,
-31,
15,
-6,
21,
28,
-2,
36,
14,
0,
-19,
15,
-23,
49,
-2,
11,
-5,
-27,
39,
52,
-43,
-24,
20,
-7,
-49,
-12,
5,
21,
3,
20,
-30,
-42,
17,
29,
-28,
-18,
-3,
-54,
-25,
20,
6,
-2,
29,
11,
-66,
8,
68,
6,
32,
25,
32,
6,
-24,
31,
3,
13,
34,
-4,
-43,
-40,
-2,
-43,
49,
-29,
-1,
39,
9,
53,
-32,
5,
-54,
32,
39,
26,
35,
0,
10,
-7,
-22,
5,
41,
-69,
63,
9,
11,
25,
-84,
-8,
-20,
37,
47,
32,
0,
-36,
-60,
-5,
2,
-2,
-17,
-37,
-26,
-30,
17,
14,
27,
13,
-30,
7,
-35,
-59,
23,
44,
-28,
41,
-7,
-22,
-37,
5,
-1,
17,
-2,
-41,
17,
-51,
-4,
48,
-32,
-18,
62,
35,
33,
23,
-25,
19,
13,
22,
56,
-53,
-16,
-35,
-29,
-54,
22,
39,
18,
16,
3,
-12,
-28,
-30,
77,
-22,
25,
8,
-25,
18,
40,
-36,
-4,
0,
32,
13,
27,
37,
-8,
8,
17,
19,
-1,
34,
-88,
42,
18,
5,
-2,
-8,
-27,
23,
-41,
-5,
-45,
15,
9,
-13,
4,
-18,
-57,
-45,
-9,
-24,
-10,
46,
41,
19,
27,
-55,
53,
-41,
-38,
-8,
29,
5,
42,
-73,
-5,
-12,
2,
37,
16,
21,
46,
47,
-3,
4,
3,
5,
30,
-21,
-16,
11,
-21,
7,
89,
-6,
29,
-35,
27,
-30,
39,
-15,
58
] |
Per Curiam.
Plaintiff, a duly licensed and practicing optometrist, was served with notice of hearing issued by the Board of Examiners in Optometry, to answer charges of gross incompetence and malpractice. He filed a complaint, asking that the board show cause why the hearing should not be enjoined pending final determination of his complaint and, further, that upon a hearing on the merits, a permanent injunction be issued restraining the hearing. Defendants’ motion for summary judgment was granted.
On appeal, plaintiff argues that the trial court’s finding of no claim on which relief could be granted was erroneous.
Plaintiff first contends that he was not apprised of the nature of the hearing. We disagree: the notice of hearing issued by the board incorporated the complaint, so that plaintiff was properly informed as to the scope of the license hearing.
Plaintiff further contends, in effect, that the Optometry Act, PA 1909, No 71, as amended, MOLA § 338.251 et seq. (Stat Ann 1969 Rev § 14.641 et seq.), in failing to set forth a specific listing of unethical practices, lacked sufficient standards upon which to base a complaint. This charge has been answered in Sanchick v. State Board of Optometry (1955), 342 Mich 555. Plaintiff’s remedy herein is appeal from the board’s decision, if necessary.
Affirmed. | [
-5,
-34,
-39,
25,
-51,
3,
-1,
-1,
-28,
43,
49,
-45,
53,
44,
13,
-25,
13,
12,
-20,
-42,
-30,
24,
7,
62,
-41,
-5,
7,
9,
-5,
39,
16,
2,
-15,
23,
-42,
10,
43,
9,
32,
18,
51,
30,
-9,
-50,
-38,
-53,
19,
7,
20,
24,
47,
18,
18,
15,
-7,
-3,
14,
-19,
34,
-36,
-32,
43,
9,
19,
65,
21,
-12,
-1,
25,
-10,
-63,
64,
8,
-1,
0,
-58,
5,
-17,
8,
23,
-13,
-27,
27,
3,
26,
13,
-16,
16,
-15,
-12,
-5,
-41,
-40,
-14,
0,
39,
20,
16,
58,
33,
-3,
60,
32,
-1,
-9,
-13,
-15,
5,
-9,
17,
-9,
-3,
-27,
-35,
15,
15,
-32,
22,
20,
-1,
15,
-8,
42,
-23,
29,
27,
-15,
22,
-4,
-10,
-1,
-18,
-10,
22,
7,
0,
-16,
-41,
35,
-17,
15,
-27,
-26,
-13,
-26,
-6,
-5,
3,
-21,
-33,
26,
17,
-8,
35,
12,
51,
-3,
-66,
64,
-27,
86,
16,
-46,
28,
5,
3,
-7,
-34,
21,
21,
35,
45,
32,
4,
-57,
-48,
46,
29,
-14,
-29,
-1,
-29,
17,
-19,
11,
8,
-28,
-15,
-26,
-68,
-13,
-6,
-26,
32,
-8,
17,
4,
21,
59,
-31,
21,
16,
-28,
70,
56,
10,
-34,
-53,
-9,
32,
-25,
-3,
-12,
-24,
38,
-48,
-1,
16,
-29,
-3,
-17,
11,
-9,
5,
-87,
-36,
-2,
-16,
11,
-10,
-25,
-36,
11,
36,
14,
21,
46,
15,
51,
-50,
-51,
21,
-7,
-25,
-71,
0,
21,
30,
-30,
14,
17,
23,
50,
10,
-18,
-15,
5,
45,
-25,
-32,
-22,
16,
-33,
17,
-11,
-13,
28,
8,
-12,
0,
-29,
27,
51,
-3,
-13,
-68,
-33,
-46,
71,
0,
-1,
8,
-27,
-35,
-87,
62,
37,
-11,
31,
31,
-11,
-16,
-48,
39,
74,
-4,
-1,
20,
-24,
-40,
5,
-26,
12,
24,
14,
-9,
-32,
9,
-33,
-12,
-33,
-9,
29,
3,
-35,
-1,
-61,
-25,
-17,
-59,
-27,
-15,
-18,
-33,
-35,
-35,
61,
-29,
32,
-20,
7,
-1,
12,
-4,
25,
47,
10,
0,
-4,
4,
53,
6,
-11,
33,
39,
20,
-8,
3,
51,
14,
-31,
-5,
-24,
-12,
23,
0,
11,
-78,
-41,
18,
14,
-27,
0,
-32,
27,
22,
0,
20,
-33,
51,
0,
-4,
7,
-6,
-31,
-46,
-12,
20,
-29,
47,
-8,
-14,
16,
-36,
-22,
40,
-50,
22,
34,
-18,
-30,
-20,
38,
26,
-17,
4,
-20,
8,
-11,
3,
-22,
-27,
-41,
3,
-14,
-22,
-1,
-36,
-12,
41,
-40,
66,
9,
39,
-14,
5,
59,
18,
-21,
-39,
-24,
24,
-38,
5,
-69,
-16,
-22,
0,
14,
2,
-37,
19,
-2,
-14,
-3,
-29,
13,
-25,
41,
1,
-35,
-10,
-47,
6,
-23,
23,
21,
16,
44,
-31,
2,
-7,
20,
-2,
-21,
-17,
19,
0,
-17,
-10,
26,
-8,
-68,
-14,
-51,
-19,
-8,
19,
29,
-3,
-35,
-7,
-4,
0,
-5,
-26,
-33,
51,
-46,
21,
-15,
0,
-1,
-39,
-43,
-44,
-9,
4,
-37,
-12,
4,
41,
-14,
-40,
-7,
-33,
19,
-11,
-58,
3,
0,
-6,
19,
14,
44,
-31,
-12,
-4,
27,
-2,
-32,
-2,
23,
46,
15,
25,
-29,
-6,
-32,
18,
12,
-34,
-22,
-15,
-24,
0,
-49,
13,
52,
-27,
-10,
9,
43,
19,
27,
39,
15,
-35,
-5,
14,
-39,
20,
-29,
-6,
67,
-12,
0,
42,
47,
15,
1,
-22,
5,
-5,
42,
1,
-26,
32,
53,
-31,
-13,
26,
-16,
7,
23,
29,
21,
-23,
-25,
64,
-32,
-30,
16,
48,
0,
-12,
9,
-13,
-18,
-47,
41,
-41,
35,
-49,
-53,
2,
41,
-102,
13,
-59,
-15,
-61,
24,
-7,
-3,
-20,
-18,
-11,
51,
58,
-55,
4,
-18,
3,
-12,
21,
3,
26,
29,
-16,
3,
-27,
-21,
-57,
-54,
-3,
0,
21,
55,
-21,
15,
16,
25,
0,
57,
4,
-17,
-8,
-20,
-32,
21,
-13,
2,
-41,
23,
40,
-16,
-9,
-10,
29,
0,
-14,
-31,
-14,
34,
-30,
-26,
20,
13,
5,
1,
56,
26,
-33,
-48,
2,
14,
-66,
-5,
-24,
-40,
-61,
-1,
-23,
42,
10,
7,
28,
14,
43,
17,
1,
46,
32,
4,
-28,
32,
20,
-49,
-25,
-20,
-76,
33,
-13,
-25,
33,
-39,
-7,
40,
-18,
12,
-1,
29,
-25,
-16,
-41,
25,
18,
37,
0,
3,
-12,
-43,
10,
-14,
6,
35,
-15,
7,
-2,
-37,
29,
-41,
4,
5,
15,
30,
28,
-10,
17,
-13,
17,
10,
14,
34,
-1,
60,
-2,
29,
-23,
10,
82,
19,
7,
-32,
20,
33,
-32,
-22,
-56,
42,
37,
-19,
5,
50,
-4,
-2,
12,
-34,
32,
-40,
-13,
-56,
-26,
9,
-43,
16,
0,
30,
33,
-28,
19,
1,
-39,
-9,
18,
36,
-28,
-73,
14,
-29,
-24,
-1,
-51,
-12,
-14,
-27,
-61,
-11,
25,
-14,
5,
9,
9,
7,
-41,
10,
-2,
3,
22,
49,
-9,
-5,
-43,
29,
10,
16,
-24,
-9,
-52,
21,
35,
69,
28,
-66,
30,
-8,
-7,
22,
41,
48,
-23,
-2,
-23,
3,
-27,
-11,
1,
-39,
-52,
28,
43,
6,
34,
41,
-6,
38,
-12,
10,
10,
16,
-31,
-11,
29,
6,
-41,
6,
15,
-40,
39,
-21,
-3,
-50,
17,
10,
-45,
-47,
-11,
-1,
-16,
1,
7,
-26,
-22,
26,
4,
1,
-30,
6,
68,
9,
49,
-15,
-39,
6,
-14,
-4,
0,
29,
-28,
31,
-2,
-21,
-12,
-17,
18,
-7,
-21,
19,
-2,
-9,
-37,
-6,
-32,
0,
-20,
33,
0,
27,
-10,
25,
45,
18,
46,
-2,
33,
-40,
22,
17,
15,
-2,
49,
88,
-6,
-1,
-5,
22,
18,
-34,
10,
2,
20,
-3,
-15,
19,
12,
25,
8,
27,
-47,
33,
6,
-30,
-10,
-19,
25,
20,
-28,
-2,
9,
64,
-20,
23,
9,
22,
-7,
-37,
-39,
-18,
31,
-13,
-34,
25,
0,
-21,
13,
-5,
49,
-9,
-14,
3,
-14,
-25,
-4,
-71,
15,
24,
-9,
-38,
-6,
-9,
8,
-11,
25,
22,
7,
12,
1,
0,
60,
-32,
6,
12,
-3,
3,
27,
-56,
-2,
-15,
27,
-14,
-57,
32,
11,
-25,
-37,
-4,
-2,
24,
-12,
48,
-25,
-45,
-22,
-27,
-14,
20,
-3,
71,
20,
33,
47,
-32,
5,
57,
27,
35,
-32,
-14,
-36,
-3,
17,
112,
-21,
27,
-23,
5,
-18,
-30,
-22,
7,
37,
-23,
-21
] |
Blair, J.
This is an application for mandamus to require the respondent to vacate an order extending the time within which the Valley City Desk Company might file a motion for a new trial in the case of Travelers’ Insurance Company v. Valley City Desk Company et al. Different phases of the matters embraced in this proceeding have been before this court in Valley City Desk Co. v. Kent Circuit Judge, 139 Mich. 194, and Valley City Desk Co. v. Insurance Co., 143 Mich. 468, to which cases reference is made for a statement of the facts.
The granting of a motion for a new trial in this case would be ineffective, unless the default were also set aside, since the new trial would merely be an assessment of damages, and the result must be the same as before. 3 Comp. Laws, § 10604. We do not think it would be competent to procure the vacation of the judgment on motion for new trial and then, having got the judgment out of the way, obtain the opening of the default on the ground that there were no “proceedings taken after default on the strength thereof.” This would result in accomplishing by indirect action what the rule [Cir. Ct. Rule 126] prohibits being secured by direct action.
We deem it proper to say, however, that we have not as yet passed upon the question whether the garnishee de fendant’s motion to set aside the default was not filed in time. The judgment against the garnishee defendant was entered on November 21, 1904. On November 23, 1904, the garnishee defendant made his motion to vacate this judgment and set aside the default. At the time of this motion, no judgment had been entered against the principal defendant, and as the record then stood the garnishee defendant was entitled to prevail. Whether the entry of a judgment nunc pro tunc on November 25th, under the circumstances of this case, could affect the legal status of this motion, is a question which we cannot determine until it is properly before us for review upon writ of error, as we held in Valley City Desk Co. v. Kent Circuit Judge, 139 Mich. 194.
The writ is granted.
Montgomery, Ostrander, Hooker, and Moore, JJ., concurred. | [
-19,
4,
25,
65,
17,
11,
7,
-10,
-5,
28,
-7,
32,
-13,
-1,
-15,
-41,
-35,
-22,
-19,
31,
1,
-20,
-46,
-27,
23,
-30,
-37,
-43,
5,
-8,
42,
-25,
-11,
38,
-43,
-39,
-9,
41,
2,
14,
43,
28,
38,
6,
8,
-34,
-46,
7,
9,
-33,
40,
1,
-69,
19,
-47,
-35,
-37,
58,
53,
50,
-21,
7,
0,
-16,
-48,
-1,
-13,
2,
14,
22,
-37,
-1,
49,
45,
-8,
-7,
17,
-8,
-7,
-19,
1,
-44,
3,
-28,
0,
23,
-7,
21,
6,
-10,
-6,
-26,
-36,
-56,
-67,
33,
-20,
-29,
23,
-4,
-38,
-17,
-32,
-5,
-16,
10,
-24,
-78,
-16,
-28,
54,
15,
2,
-37,
8,
-42,
-9,
-2,
-24,
-50,
61,
-11,
53,
9,
13,
-2,
39,
-45,
-7,
19,
-3,
4,
-37,
17,
31,
-7,
10,
-2,
-23,
-31,
42,
-9,
17,
-14,
9,
21,
45,
15,
-13,
18,
2,
24,
-25,
8,
11,
-6,
-53,
-16,
10,
-9,
7,
50,
-38,
-30,
-21,
-9,
-40,
17,
20,
17,
-18,
17,
-14,
25,
3,
34,
8,
-33,
-66,
-21,
-23,
62,
-7,
-8,
45,
-54,
4,
11,
25,
-32,
-18,
-3,
1,
39,
-5,
22,
12,
36,
29,
-10,
3,
-29,
-39,
6,
25,
36,
-11,
-37,
11,
16,
-27,
11,
-72,
-46,
-16,
-19,
31,
-51,
16,
15,
-36,
30,
-15,
19,
14,
75,
-13,
-25,
-22,
40,
-32,
-16,
-2,
39,
6,
11,
9,
7,
44,
28,
29,
54,
33,
-17,
7,
15,
-11,
-37,
-26,
-42,
-19,
2,
-6,
19,
19,
-30,
-32,
-37,
-55,
-39,
14,
64,
-6,
2,
-25,
-28,
10,
-32,
20,
-8,
19,
-15,
5,
-50,
13,
-2,
6,
7,
-9,
-17,
17,
-10,
-14,
17,
-79,
0,
47,
16,
-4,
8,
-56,
-10,
-21,
66,
-10,
0,
18,
7,
15,
14,
-9,
-6,
19,
35,
-3,
0,
-78,
-3,
-69,
-58,
-29,
27,
-25,
-7,
0,
-46,
23,
37,
0,
-18,
8,
5,
21,
27,
-4,
3,
23,
-58,
-52,
-21,
5,
-22,
3,
-22,
-2,
-45,
7,
-13,
-22,
44,
29,
-24,
-55,
-44,
-12,
31,
54,
-74,
-15,
21,
-9,
7,
7,
-1,
21,
-23,
-31,
-39,
-15,
1,
-2,
21,
-34,
0,
24,
1,
-17,
53,
-17,
13,
-3,
-34,
-35,
-115,
-31,
-7,
-10,
56,
-26,
24,
33,
-88,
-31,
13,
31,
33,
-44,
32,
-1,
18,
-27,
-21,
22,
-18,
-6,
-33,
-7,
-25,
-20,
21,
-33,
-2,
10,
8,
-29,
34,
-23,
-65,
19,
70,
34,
33,
-19,
45,
-28,
-7,
-24,
19,
36,
-40,
-8,
-19,
-18,
-4,
24,
0,
27,
-37,
57,
-12,
3,
37,
-27,
-11,
-5,
64,
-32,
-38,
14,
8,
-9,
-46,
6,
-20,
15,
3,
-4,
-19,
9,
11,
30,
22,
17,
-5,
10,
-14,
-14,
10,
16,
-22,
99,
-33,
2,
30,
53,
-14,
-5,
-24,
52,
-35,
-7,
-26,
0,
24,
-30,
-14,
-26,
-1,
38,
14,
-18,
52,
19,
28,
-17,
50,
22,
-22,
-6,
17,
11,
13,
17,
17,
-59,
31,
-61,
11,
-2,
10,
-39,
-4,
6,
52,
17,
7,
-48,
-53,
3,
33,
21,
-3,
35,
26,
30,
43,
0,
-4,
12,
6,
22,
0,
-28,
5,
-32,
19,
-45,
-6,
47,
18,
22,
2,
63,
-13,
-74,
42,
-63,
-35,
-30,
-31,
-10,
60,
-23,
55,
17,
-8,
-32,
3,
-17,
13,
-24,
-17,
5,
21,
-3,
26,
-32,
31,
16,
-33,
13,
11,
-10,
6,
-7,
-14,
-25,
-33,
-25,
-43,
-7,
0,
-2,
18,
5,
12,
5,
-35,
20,
-65,
-43,
52,
-35,
-72,
-34,
-24,
-5,
-1,
22,
-22,
-8,
-9,
57,
-31,
-4,
44,
-3,
-12,
-15,
51,
-66,
27,
-44,
-42,
-16,
-57,
32,
12,
33,
-10,
23,
-57,
-32,
31,
-11,
-20,
13,
35,
-8,
53,
21,
15,
3,
35,
22,
-5,
35,
-21,
-27,
50,
1,
0,
20,
-16,
-31,
52,
-12,
19,
11,
5,
-27,
16,
39,
-46,
-16,
31,
28,
-10,
68,
22,
-20,
63,
23,
18,
23,
40,
7,
60,
16,
-54,
0,
-43,
-21,
19,
23,
12,
-5,
45,
-15,
-6,
36,
9,
35,
33,
33,
6,
1,
-38,
8,
-27,
-71,
54,
36,
-40,
-20,
3,
-7,
5,
24,
6,
-41,
50,
-58,
11,
63,
-16,
45,
42,
0,
-24,
-7,
15,
20,
37,
-17,
-11,
-29,
33,
30,
-18,
6,
-1,
-2,
-19,
5,
0,
31,
27,
-25,
-26,
-6,
6,
3,
-7,
-27,
56,
-7,
-15,
20,
-14,
-21,
-51,
-19,
10,
-45,
5,
27,
5,
-29,
2,
43,
-13,
37,
40,
5,
49,
-46,
31,
5,
-45,
44,
27,
22,
-4,
-20,
16,
-13,
-13,
-20,
20,
9,
-25,
-24,
19,
1,
-8,
38,
-21,
6,
3,
24,
-45,
26,
-39,
-33,
21,
71,
-11,
28,
18,
6,
26,
12,
22,
51,
-49,
-25,
4,
-48,
15,
40,
-9,
-46,
-7,
-7,
58,
26,
-31,
-26,
24,
72,
29,
-4,
40,
-12,
2,
12,
35,
19,
-54,
6,
-49,
9,
17,
-30,
-31,
-46,
28,
-12,
-28,
-22,
41,
-22,
-5,
-4,
1,
1,
-25,
-20,
13,
18,
-30,
8,
9,
2,
-7,
56,
27,
23,
-32,
-64,
-17,
-23,
13,
22,
0,
-62,
26,
-7,
8,
12,
16,
-24,
-12,
36,
-4,
-18,
-52,
45,
-18,
22,
47,
-41,
-2,
-16,
2,
-78,
48,
-7,
-24,
32,
55,
28,
0,
-20,
-2,
-10,
-32,
8,
-3,
-19,
33,
-38,
41,
-35,
-6,
39,
-6,
-47,
32,
56,
14,
5,
45,
51,
8,
14,
-37,
5,
13,
-41,
-1,
33,
16,
-57,
32,
17,
-1,
-29,
3,
30,
51,
-8,
17,
59,
29,
2,
-11,
15,
4,
-35,
-32,
16,
-24,
0,
1,
-13,
24,
46,
17,
9,
4,
-35,
18,
34,
-77,
-28,
-22,
8,
17,
-13,
-38,
-19,
1,
-40,
-34,
0,
14,
-26,
14,
18,
10,
-7,
-23,
23,
28,
-10,
-41,
29,
-16,
-41,
5,
18,
-55,
88,
21,
-16,
-77,
-36,
35,
20,
-33,
46,
-15,
-50,
-20,
41,
-23,
14,
25,
72,
-18,
1,
-44,
28,
58,
4,
3,
-12,
-50,
3,
10,
19,
-9,
8,
-4,
-8,
-16,
-3,
52,
-8,
-21,
78,
-7,
22,
-35,
-18,
6,
-24,
28,
8,
45,
71,
7,
-62,
10,
-31,
-32,
-11,
-23,
39,
14,
-62,
47
] |
Grant, J.
This case is before us for the second time. 140 Mich. 472. A further statement than is there found is unnecessary. A second trial resulted in a verdict for the plaintiff. Upon the second trial the plaintiff was a witness in his own behalf, and gave evidence tending to show the falsity of the charges made in the letter, except one, the use of tobacco, which the plaintiff admitted. Plaintiff called both Mr. and Mrs. Haven and questioned them in regard to the authorship of the letter. Mr. Haven admitted writing the letter, and testified that his wife had no hand in writing it, knew nothing about it until after it was written, and was in no manner responsible for it. She testified to the same thing.
1. It is now urged, as it was upon the former trial, that there was no evidence to show malice on the part of Mr. Haven. Without entering into a detail of the evidence, we are satisfied that this question was properly left to the jury. Mr. Haven was not a witness in his own behalf. There was testimony that three of the charges made were false, and we think there was sufficient evidence from which the jury might question his good faith in the matter.
%. Before giving any evidence to connect Mrs. Haven with the publication of the libelous letter, plaintiff was allowed to introduce very damaging statements made by her and also evidence of her conduct towards him. This evidence was continued all through the trial, even after the judge had intimated that there was nothing to connect MrS. Haven with the publication. We held in the former opinion that Mr. Haven was not responsible for the acts and statements of his wife. . This evidence was of such a character that we cannot hold that the error was cured by the order of the court at the close of the trial in striking the testimony out and instructing the jury not to regard it. The evidence of any statements made by Mr. Haven or of his conduct towards plaintiff tending to show actual malice is rather meager. Mr. Haven and other members of the church objected to the plaintiff’s marrying a couple, one of whom had been divorced. Plaintiff testified that about the same time he had a conversation with Mr. Haven’s father in regard to dividing his property among his children, and that he advised the father, in the pres ence of Mr. Haven, to keep control of his property while he lived. Plaintiff testified that “after these difficulties Mr. Haven did not speak to him; that he passed him frequently, but he did not look up.” Plaintiff admits that he did not speak to Mr. Haven, but “walked by with my head up like a man.” There is little, if anything, in such testimony to show malice on the part of one more than the other. But the statements proven to have been made by Mrs. Haven were different. Plaintiff was permitted to show her appearance and attitude towards the plaintiff. One witness testified that she was bitter against Mr. Konkle on account of that marriage, and that she told witness that Mr. Konkle told her husband that a saloon-keeper could be just as good a Christian as a farmer. Another witness was permitted to testify under objection and exception:
‘ ‘ Did you at any time before this suit was started against Mr. and Mrs. Haven, hear her say anything in reference to Mrs. Konkle having an abortion performed ?
“A. I don’t think that Mrs. Haven stated that to be the fact, she merely intimated it.”'
Counsel then pursued the matter further and elicited the following:
“A. Mrs. Konkle was not in Bloomingdale at the time this conversation took place. She was away visiting, if I remember right. Something was said. Mrs. Haven — I can’t remember which of us stated, spoke of Mrs. Konkle’s condition at that time. She was in a delicate condition at the time, and Mrs. Haven stated that she — we were speaking about something — I don’t remember exactly how it was. Any way Mrs. Haven stated that she had heard it rumored or understood that she was over it at this time.
“ Q. Say anything with reference — connect anybody’s name with it, or anything ?
“A. I think she did.
“Q. Whose?
“A. Dr. Ransome’s.”
Plaintiff was also permitted to testify to a conversation with Mrs. Haven. It was the duty of the court to exclude any such testimony until Mrs. Haven’s responsibility for the libelous article had been established.
3. We held on the former hearing that the defendant was not responsible for the" publication of the letter made by the plaintiff himself, and that he could not recover damages for such publication. He read the letter from his pulpit in the church at Bloomingdale. The court below did not instruct the jury that the plaintiff could not recover, damages for any publication made by himself, and it does not appear that any request was made to do so. The court was requested to instruct the jury that “ the defendant is not responsible and cannot be held liable for the publication of this letter at Bloomingdale.”
It is claimed on behalf of plaintiff that there was evidence that this letter was published at Bloomingdale aside from the publication made by the plaintiff himself. The only evidence cited to maintain this claim is the deposition of one Dougal Thompson, taken at Hillsburg, in Canada. This witness testified that the letter was received by one McMillan, a member of the church at Hills-burg. The church board was convened and the letter evidently placed before it. Mr. Thompson testified:
“I was instructed by the secretary of the church board to write to the officers of the church board at Bloomingdale, and received letters from them.”
This testimony is not evidence of a publication of the libelous letter at Bloomingdale. .It is not stated that the letter or a copy of it was sent to Bloomingdale, or that its contents were stated in the letters written by the witness, or that the name of the defendant was mentioned in the letter written by Thompson. He may have written simply to ascertain more about the character of Mr. Konkle, without any reference whatever to the letter they had received. Upon this record, we think this instruction should have been given.
Judgment reversed, and new trial ordered.
Carpenter, C. J.,andMcALVAY, Blair, and Moore, JJ., concurred. | [
5,
-10,
33,
-32,
-46,
-19,
-4,
57,
-2,
-12,
12,
-13,
71,
10,
-18,
-64,
16,
-10,
11,
-49,
34,
-12,
-30,
27,
-6,
-26,
22,
12,
6,
-3,
69,
36,
15,
-9,
13,
-21,
89,
-4,
1,
-30,
27,
-28,
27,
2,
-21,
1,
0,
-35,
-22,
-5,
70,
-8,
26,
-48,
-5,
-17,
25,
42,
-6,
0,
29,
-15,
-36,
-36,
-5,
-25,
31,
11,
-2,
11,
-17,
6,
-2,
-37,
-28,
-89,
-16,
31,
-23,
31,
-32,
-2,
28,
5,
-22,
-46,
2,
-47,
-35,
16,
47,
-40,
-19,
-12,
4,
-5,
0,
-5,
10,
-4,
-33,
-7,
-1,
26,
-37,
43,
1,
-28,
7,
-41,
29,
84,
15,
-10,
7,
-40,
28,
-8,
-79,
-36,
31,
-19,
-3,
3,
10,
1,
29,
-7,
-16,
4,
14,
-23,
-20,
3,
-31,
-66,
-10,
-23,
-20,
-20,
20,
28,
-1,
-29,
-26,
22,
-35,
37,
-56,
-8,
-10,
-10,
-18,
27,
31,
-18,
-13,
-91,
71,
-33,
20,
85,
-47,
6,
-41,
-3,
-1,
-48,
61,
-23,
9,
33,
-40,
22,
27,
23,
-59,
-30,
-29,
15,
15,
66,
34,
18,
-6,
-27,
15,
-27,
-5,
-32,
-52,
-23,
10,
13,
13,
46,
-74,
-16,
0,
-103,
-10,
-12,
-17,
34,
8,
42,
5,
-21,
22,
-22,
25,
49,
-11,
-22,
-12,
-31,
2,
-16,
-49,
17,
23,
-5,
-3,
10,
-81,
-11,
2,
18,
-79,
-24,
-59,
-1,
1,
0,
22,
13,
21,
32,
28,
7,
-7,
8,
27,
-11,
-11,
18,
-8,
14,
21,
26,
28,
33,
38,
33,
-40,
-34,
11,
2,
-24,
-6,
-18,
45,
-23,
13,
-18,
-18,
0,
4,
21,
24,
41,
-65,
-15,
-8,
3,
12,
18,
8,
-54,
34,
-15,
9,
-14,
3,
23,
20,
22,
61,
16,
3,
50,
-18,
-18,
-35,
26,
41,
29,
-6,
-48,
-8,
38,
7,
-22,
12,
17,
32,
3,
-6,
-38,
7,
21,
59,
9,
6,
14,
34,
-17,
10,
44,
-1,
9,
-5,
15,
-50,
-43,
-14,
13,
-68,
-11,
33,
5,
28,
28,
1,
11,
-27,
-31,
-66,
-33,
-13,
1,
-19,
-40,
-27,
-28,
-58,
-2,
-15,
-25,
34,
24,
38,
31,
-20,
-17,
10,
19,
-39,
19,
-20,
-11,
70,
16,
-11,
19,
-27,
45,
-13,
9,
8,
27,
-56,
-36,
1,
0,
-19,
53,
-20,
-6,
27,
-33,
22,
-1,
12,
-7,
78,
-45,
3,
-38,
25,
-5,
-4,
35,
15,
-36,
-27,
-4,
14,
-50,
6,
-11,
26,
15,
-26,
-57,
32,
4,
0,
27,
2,
22,
52,
10,
10,
12,
-33,
24,
6,
26,
27,
3,
21,
21,
0,
18,
-43,
15,
22,
41,
-41,
0,
13,
5,
-34,
26,
-12,
-44,
30,
38,
22,
12,
30,
-37,
57,
-23,
49,
42,
-19,
27,
29,
8,
-17,
-28,
29,
38,
20,
-1,
-9,
17,
-4,
53,
19,
11,
-12,
21,
7,
4,
-52,
-18,
3,
30,
22,
23,
1,
-7,
2,
-11,
19,
3,
3,
75,
13,
22,
-2,
10,
38,
29,
-47,
34,
-26,
29,
20,
-3,
18,
-18,
-14,
-27,
-36,
-42,
-8,
11,
15,
-6,
-37,
42,
28,
-19,
-6,
6,
31,
16,
20,
29,
-25,
-48,
14,
70,
-47,
-32,
27,
12,
-38,
-17,
-41,
0,
-30,
50,
-27,
2,
12,
27,
63,
6,
-35,
20,
14,
8,
-50,
21,
15,
-19,
23,
32,
21,
-19,
-13,
43,
-8,
29,
9,
-38,
11,
-5,
15,
17,
-7,
9,
6,
-10,
-36,
-48,
-5,
4,
-28,
21,
-27,
20,
-38,
41,
-52,
50,
-55,
-5,
27,
-22,
39,
6,
-13,
25,
-52,
-22,
-25,
-26,
-25,
-20,
36,
46,
28,
-47,
-17,
-27,
36,
-13,
-10,
-1,
-37,
-34,
1,
16,
58,
-43,
-27,
-19,
13,
-11,
-9,
36,
9,
-9,
-20,
33,
-34,
9,
-5,
19,
22,
-17,
-76,
-11,
23,
11,
-4,
31,
-63,
0,
-11,
59,
-2,
39,
-50,
-29,
-29,
-13,
-2,
-7,
46,
4,
-13,
4,
20,
31,
25,
-5,
20,
2,
8,
43,
-5,
6,
-13,
16,
-5,
15,
-39,
-24,
-25,
3,
-13,
5,
-1,
12,
-36,
3,
18,
-25,
-16,
-7,
54,
-30,
6,
-10,
-24,
14,
57,
13,
-40,
-1,
-31,
41,
-54,
-5,
-11,
51,
-36,
16,
36,
-6,
-11,
-46,
6,
-2,
20,
-33,
81,
25,
13,
22,
36,
4,
3,
-13,
-39,
-11,
24,
6,
-20,
-14,
-12,
-1,
7,
49,
58,
-7,
-30,
-58,
-8,
31,
5,
-4,
-4,
7,
34,
-16,
23,
-20,
-35,
25,
-5,
73,
10,
52,
-31,
-21,
28,
-27,
15,
44,
-2,
36,
2,
-14,
44,
-43,
-16,
50,
13,
20,
0,
13,
-32,
7,
-13,
24,
-30,
-31,
35,
12,
-52,
-59,
-29,
26,
29,
1,
-97,
-11,
-23,
-23,
-31,
17,
17,
-27,
-40,
22,
-6,
-49,
23,
27,
23,
29,
-1,
9,
6,
-60,
32,
45,
-34,
62,
-11,
10,
34,
-26,
26,
-8,
39,
26,
-8,
0,
9,
0,
0,
20,
19,
-13,
28,
-40,
35,
3,
12,
17,
27,
-3,
-17,
-12,
-29,
-29,
-25,
31,
-47,
24,
-31,
8,
16,
16,
-23,
19,
25,
-4,
-26,
-25,
-61,
29,
-21,
-23,
22,
-54,
7,
12,
-4,
-24,
-6,
15,
23,
13,
39,
29,
-16,
14,
-29,
42,
-39,
35,
0,
-17,
0,
-34,
-56,
-1,
21,
30,
6,
-31,
2,
-15,
-72,
37,
1,
29,
23,
34,
-65,
-26,
0,
-45,
-3,
10,
-10,
-6,
-19,
2,
2,
-44,
16,
-3,
0,
-22,
-37,
15,
15,
-23,
-33,
46,
-21,
56,
14,
-6,
-21,
30,
-9,
-5,
75,
6,
-52,
-55,
38,
0,
-46,
17,
-4,
69,
15,
-25,
-39,
-5,
2,
-13,
6,
27,
-19,
57,
-38,
19,
-11,
14,
-15,
-22,
-6,
-38,
-4,
-47,
18,
35,
20,
-71,
-37,
64,
9,
-30,
-4,
15,
-15,
25,
-16,
-28,
7,
-22,
4,
-35,
-22,
-17,
25,
-52,
13,
-1,
43,
-32,
1,
9,
-25,
0,
1,
-2,
43,
-28,
-9,
37,
24,
-39,
35,
-12,
9,
3,
-44,
-3,
-48,
23,
-12,
11,
-56,
-17,
-52,
17,
-28,
-43,
-13,
-22,
-7,
30,
-12,
-50,
-21,
-7,
16,
0,
-29,
-4,
-37,
-6,
-37,
-5,
-42,
-12,
-34,
19,
3,
24,
-27,
1,
56,
0,
-28,
-18,
13,
14,
48,
-18,
29,
-15,
-47,
27,
-12,
17,
12,
8,
40
] |
Montgomery, J.
Plaintiff brought this action to recover for injuries received by falling into an open area opening upon a platform in an alleyway adjoining defendants’ premises in the village of Ithaca. The circuit judge directed a verdict for defendant, and plaintiff brings error.
The appended map will be an aid to an understanding of the situation. An alleyway extends from the westerly ■side of defendants’ store building 32 feet west. This .alleyway has been used by the general public at will for many years. About 1892 or 1898 defendants built a platform on the alley. This platform originally extended from the head of or entrance to the basement staircase in the alley to a point just south of the side entrance from the alley to their building, and was later extended north to a point about one foot south of the north end of their building. This platform was built for the storage of salt, which they bought by the car load, and has always been used by them to store salt and pile wood on, as well as for unpacking goods and “ generally for the convenience of the use of our building.” Later the defendants constructed a double plank margin or addition along the west edge of this platform, partly for the purpose of keeping water from running under the platform and into the cellar, and partly to make a substantial edge to back wagons against in loading and unloading goods, salt, etc. The north end of the platform was frequently covered with boxes from which goods had been unpacked, so as •to render the platform impassable for walking purposes for weeks at a time, and the remainder of the platform was also so covered that it was impossible to use it to walk upon for weeks at a time. Later, defendants built a narrow walk, leading from the south end of the platform at the head -of the basement stairs, along the alley side of the cellar stairs, to the front to a point opposite the approach to the stairway leading upstairs, but stopping a foot short of the south end of their store building. This walk was built simply and solely for the accommodation of defendants and their clerks in going from the store to and down the outside cellar stairs, and for their upstairs ten-. ants in going back along the side of the stairs to get their wood which was thrown there. These tenants had their wood thrown from farmers’ wagons under the stairs to the south of the basement stairs, and for weeks at a time this wood so covered the narrow walk as to make it impassable, and requiring defendants to go out in the road part of the alley to get by.
There is a basement under defendants’ building, used by them in connection with their business, and there are three basement windows on the west side of the building for the purpose of admitting light and air into the basement, and for such other purposes as they may be used for. The first of these basement windows toward the south is 42 feet north of the south end of the building, and its south edge is 8 feet 1 inch north of the staircase leading to the basement. Each of these basement windows has an area surrounding it, projecting out from the building about 2 feet 10 inches and is about 4 feet 9 inches long. The south area, into which it is claimed that the plaintiff fell on the night in question, was at that time about five feet deep, was capped with a 2-inch plank, 10 inches wide, resting on the stone wall of which the area wall was constructed, and this plank was about 2 inches above the level of the platform adjacent. The south edge of defendants’ building is 5 feet north of the north street line of Center street, on which it faces. That 5-foot space is covered by a cement walk which connects with the walk proper, and is used for the purpose of exhibiting goods sold by defendants in their business. Immediately west of the south end of their building defendants constructed a cement platform, extending from the south edge of their building north 3 feet 3 inches to the foot of the stairs leading to the second story. This was built simply and solely for the accommodation and convenience of themselves and their tenants occupying the second floor, and, of course, those who might have occasion to transact business with those tenants. As a result of these several structures, the narrow walk along the side of the stairway laps over or extends by this cement approach to the second-story stairs for a distance of 26 inches. There is a gutter running along the westerly edge of the platform and narrow walk in question, which gutter was constructed by the defendants for the purpose of carrying away from their cellar the water which comes from the north and from the back or side of their building. This water goes across the space between the south end of the narrow walk and the walk on Center street leading across the alley, and under the walk and into the gutter on Center street; and at the place last mentioned, being south of the narrow walk and west of the approach to the second-story stairs and the adjacent sidewalk, there is a depression of about a foot. Defendants have used this portion of the alley occupied by them for their own business purposes and convenience, and have never personally invited the public to use it as a sidewalk or a thoroughfare. They have seen people using it for that purpose when it was not so full of their property but that they could get along on the westerly edge of the platform. They have never given permission to any one to use it either as an alley or thoroughfare, and they did not give this plaintiff, or any of those who were with him on the night of the accident, permission to cross or enter upon the platform in question or upon their lot back of their store.
On the night in question, there was at least one tier of salt barrels upon the platform in question, lying endways to the building. On the evening in question plaintiff visited three saloons, and finally went to Knickerbocker’s saloon, conducted in the third building east of the premises of defendants. Plaintiff was in that saloon when it was announced that it was time to close, and had ample opportunity to go out the front door if he had so desired. The only reason which he gives for not going out the front door at that time is that “I was willing to stay awhile longer with my friends.” Plaintiff further testified that when he got ready to go home he did not ask the proprietor to go out the front door; that the reason he didn’t was because Bodet, one of his companions, said he knew the way around the back way, and plaintiff thought he did; that plaintiff did not know anything about the back way himself at all, but went out the back way because Bodet said he knew the way. Thereupon plaintiff and three of his companions left the saloon through the back door, and went north across the rear of the premises of these defendants, and towards the alley in question. The three companions were 15 or 20 feet ahead of plaintiff when they reached the alley, and they went upon the platform. Plaintiff testified that he could see the buildings and could see the alley between the buildings. It is undisputed that at that time the dirt portion of the alley was at least 20 feet wide, and was smooth and dry at the time, and afforded plenty of room for teams and foot passengers to pass to and fro along the west side of the platform. Plaintiff testified that he was headed out towards the middle of the alley, and that his companions called him to get upon the platform; he being 15 or 20 feet behind them. He left the alley, entered upon the platform, and directly ran against a salt barrel or box standing thereon. He felt the obstruction with his cane, saw some salt barrels on the platform, and walked along on the outside of the platform next to the row of salt barrels. He further says that he remembers his cane hitting against the salt barrel several times; that he would touch the barrels with his cane, but was not far enough towards the outer edge of the platform so that it brought his crutch close to the edge of the platform.
Plaintiff further testifies:
“ Q. Was there anything between where you were and the roadbed to prevent your going out there to walk in the roadbed ?
“A. I did not see anything.
“ Q. You could have stepped off from the platform and walked on in the middle of the roadbed, and gone out straight that way, could you not ?
“ A. I could if I so chose.
“ Q. You didn’t choose to do it ?
“ A. No, sir. They told me to go on the sidewalk.
“Q. After that, after you got on the sidewalk, and had run against the salt barrel or box with your cane, at that time you could have gone out in the middle of the roadbed, if you wanted to ?
“A. Yes, sir.”
Plaintiff further testified that he could see the ground, next to the platform; that it was a foot or so below the platform, that he could tell where the platform stopped, and could see that he had a chance ■ to get off the platform onto the ground. Plaintiff walked with a crutch and a cane on the night in question, and says that he had drunk enough before so as to become intoxicated, but that neither he nor his companions were intoxicated upon this occasion; and it also appeared that, while walking, the distance between plaintiff’s cane and crutch was 2 feet 2 inches.
In determining the rights of the parties it is necessary •to inquire somewhat as to the rights of the defendants to erect the platform in question, to he used in connection with their building. It has been frequently stated in this State that an alley is not a highway in the proper sense of the term. Paul v. City of Detroit, 32 Mich. 108; Bagley v. People, 43 Mich. 355; Horton v. Williams, 99 Mich. 423. Such alleyway is intended for the convenience of adjacent property, and not for general travel or passage like streets. Paul v. City of Detroit, supra.. Accordingly it was held in Bagley v. People, supra, that an obstruction to the right of passage through or to the proper use of an alley by those entitled thereto cannot be considered a public wrong. If this be the true rule, and it be held that the public generally cannot have an interest in preventing an obstruction, it would seem to follow that the plaintiff, as a member of the public, cannot assert any greater rights in the alley as a thoroughfare. In the case last cited it was intimated that the construction of a platform to be used in connection with adjacent property might, in some circumstances, be a proper use of an alley. However this may be, the fact appears that this space was devoted to that use, and so far as appears without objection from those beneficially interested in this alley or from the public at large. This did not, under the facts in this case, enlarge the uses of this alleyway, but, on the contrary, restricted such uses by devoting this platform to use as a freight platform and for storage of bulky articles of merchandise.
It is manifest that the platform in question was not so constructed as to constitute an invitation to the general public. The narrow plank walk on the west side was not extended to the street but was a part of the provision made for the occupants of the building. The rear of the platform terminated abruptly, and was elevated from the ground so that it was only at considerable inconvenience that a pedestrian could clamber on to it at that end. The entire platform was frequently obstructed by boxes, barrels, and packages used in connection with defendant’s business. Indeed, its construction was such as to indicate that it was designed as a convenient place to unload freight. The most casual glance in the daytime would have disclosed this purpose and would, by reason of that fact, have negatived an invitation. Plaintiff cannot be heard to say that, because he was ignorant of these conditions, an invitation was extended to him. If he chose to invade this place in the night-time, without any appearance of an invitation other than the fact that a platform was there which he could, with some effort, ascend to, he cannot assert that he had a right to expect other conditions than in fact existed, for, even in the dark, it was obvious to him that this was not an ordinary sidewalk. Redigan v. Railroad, 155 Mass. 44 (14 L. R. A. 276); Ryan v. Towar, 128 Mich. 463 (55 L. R. A. 310). The instruction was warranted.
The judgment is affirmed.
Carpenter, C. J., and Ostrander, Hooker, and Moore, JJ., concurred. | [
-37,
42,
6,
38,
-26,
-7,
0,
12,
31,
41,
0,
31,
4,
19,
-2,
0,
0,
5,
-24,
7,
59,
-52,
19,
-20,
14,
-6,
-12,
2,
-41,
43,
45,
16,
-22,
-23,
-4,
39,
35,
4,
54,
0,
31,
17,
-6,
-16,
71,
18,
35,
-8,
39,
10,
7,
-30,
24,
11,
-13,
-41,
-39,
63,
-4,
11,
6,
-4,
-19,
-43,
47,
-2,
-3,
-42,
-15,
-57,
-43,
42,
-22,
-58,
2,
-7,
-31,
4,
5,
16,
-3,
-6,
49,
-5,
-41,
-8,
-20,
-13,
-7,
-19,
14,
20,
3,
27,
-18,
2,
-11,
34,
47,
-12,
-25,
13,
-41,
-9,
0,
18,
-26,
-42,
-46,
-1,
5,
12,
38,
-4,
-9,
-25,
1,
-13,
3,
22,
24,
-9,
19,
-12,
-52,
-17,
5,
3,
-17,
-8,
0,
16,
-51,
1,
-40,
39,
1,
53,
23,
16,
0,
11,
-34,
-16,
-26,
0,
-48,
26,
-81,
23,
-22,
8,
-4,
-26,
27,
21,
-12,
-15,
59,
35,
-2,
-24,
6,
-11,
-4,
-17,
-28,
-9,
-25,
28,
19,
-22,
23,
6,
17,
34,
31,
-52,
-23,
-1,
4,
-2,
13,
-6,
-39,
-13,
-13,
-20,
-1,
53,
18,
34,
-55,
-40,
5,
-10,
-21,
-7,
15,
-24,
-79,
4,
0,
-104,
23,
-5,
14,
-1,
-9,
-18,
-15,
-45,
-42,
-37,
43,
3,
-19,
-14,
33,
22,
-53,
45,
-15,
54,
-82,
-23,
31,
4,
4,
-35,
29,
-24,
4,
-10,
40,
-5,
-12,
-5,
-1,
43,
27,
42,
-38,
-32,
31,
14,
-8,
44,
-54,
7,
0,
-18,
-56,
-32,
-8,
26,
-13,
-13,
-34,
-48,
14,
26,
12,
-12,
45,
3,
20,
3,
-80,
50,
-56,
19,
21,
30,
14,
-24,
-51,
32,
-5,
-31,
23,
-12,
7,
-48,
-34,
12,
-10,
16,
-44,
-16,
-18,
-18,
-7,
0,
8,
3,
19,
-19,
-14,
-50,
-31,
-29,
-31,
-44,
43,
50,
46,
-11,
34,
-6,
10,
-21,
12,
-38,
7,
36,
12,
45,
13,
-63,
11,
-23,
2,
-9,
2,
-2,
24,
-28,
-14,
10,
27,
29,
21,
-7,
12,
41,
15,
5,
-12,
4,
47,
-12,
20,
-53,
0,
30,
-4,
34,
4,
-1,
-26,
-30,
7,
0,
76,
-31,
-23,
-6,
-2,
30,
68,
-60,
7,
-62,
10,
-73,
-27,
-33,
-21,
7,
-41,
-11,
-4,
3,
9,
-64,
61,
-49,
-9,
63,
28,
6,
48,
-24,
2,
-22,
-4,
-47,
-22,
47,
-60,
45,
72,
18,
45,
-42,
-51,
13,
7,
-11,
-5,
39,
46,
18,
-19,
7,
-9,
-25,
41,
11,
-15,
-31,
17,
-5,
-33,
8,
3,
-66,
12,
27,
44,
-14,
46,
-15,
33,
12,
-4,
-41,
-14,
-46,
-31,
4,
-28,
29,
28,
35,
-42,
3,
-25,
-45,
-42,
-22,
-24,
-28,
47,
23,
-10,
31,
24,
-32,
3,
1,
-10,
-41,
36,
1,
-17,
-15,
68,
-4,
35,
26,
-68,
1,
53,
-9,
-72,
-71,
16,
12,
-20,
18,
21,
2,
-6,
-1,
19,
6,
-23,
3,
35,
40,
38,
16,
-16,
-33,
50,
10,
-40,
-11,
31,
-29,
40,
17,
14,
13,
0,
3,
-14,
9,
-73,
7,
-55,
-29,
0,
-21,
3,
13,
50,
38,
-45,
27,
2,
-30,
2,
-32,
-7,
20,
-15,
15,
25,
-21,
-15,
7,
-4,
22,
27,
43,
-20,
-2,
33,
-16,
-13,
44,
3,
5,
20,
0,
32,
-26,
-7,
18,
49,
-2,
-18,
4,
42,
28,
10,
28,
39,
34,
1,
-1,
-17,
-26,
-18,
1,
11,
-5,
-25,
-42,
23,
-6,
38,
7,
54,
-30,
42,
8,
-31,
19,
6,
-21,
-44,
-32,
-50,
19,
7,
21,
-9,
3,
2,
-25,
3,
29,
12,
23,
-21,
55,
-42,
3,
9,
-17,
21,
-43,
-38,
3,
-1,
-6,
25,
-19,
2,
-28,
36,
-54,
-12,
8,
6,
17,
41,
-2,
-7,
0,
-1,
8,
10,
10,
-15,
-10,
19,
-27,
-50,
9,
-25,
-10,
8,
23,
-45,
25,
-36,
26,
26,
19,
-7,
36,
29,
9,
-34,
-2,
3,
-13,
-13,
-3,
-21,
24,
36,
33,
-32,
0,
-39,
32,
40,
-11,
41,
-8,
14,
24,
-8,
-28,
-19,
31,
-3,
44,
27,
-13,
-25,
-47,
-13,
-47,
-4,
-19,
-11,
52,
18,
-50,
-19,
23,
-1,
-1,
30,
-9,
-15,
-10,
20,
-12,
22,
11,
13,
-24,
-33,
-51,
33,
1,
24,
61,
28,
-74,
25,
0,
7,
-11,
32,
19,
15,
8,
-4,
-9,
-3,
-59,
-10,
9,
23,
26,
14,
8,
-48,
7,
8,
13,
23,
-34,
-8,
-28,
-4,
20,
39,
13,
13,
-2,
-14,
7,
-10,
13,
-33,
41,
-36,
-17,
22,
-27,
18,
-23,
-62,
-18,
-41,
19,
-9,
-28,
-28,
-10,
-11,
61,
-8,
-28,
-6,
-78,
4,
-13,
-59,
8,
-6,
-4,
27,
-22,
-48,
23,
38,
-49,
32,
-8,
0,
15,
-6,
-34,
-35,
37,
30,
-40,
10,
-1,
2,
-45,
25,
-15,
17,
1,
20,
-10,
46,
2,
-37,
8,
-15,
-11,
-14,
2,
4,
31,
-4,
7,
-4,
27,
-30,
25,
-11,
-7,
24,
19,
-7,
1,
-13,
-23,
1,
-36,
-32,
11,
-7,
-18,
29,
13,
-33,
23,
-12,
-58,
18,
-16,
9,
-17,
-11,
-7,
65,
-17,
6,
-13,
12,
20,
26,
48,
-13,
0,
-21,
31,
-17,
15,
48,
-55,
-14,
0,
-3,
9,
25,
-14,
39,
-82,
-16,
11,
35,
3,
12,
54,
26,
-3,
-29,
10,
-27,
3,
-28,
10,
-60,
-29,
24,
39,
2,
5,
-1,
25,
-56,
-42,
24,
-10,
-8,
0,
-8,
30,
-2,
-38,
-22,
-12,
-14,
12,
-2,
24,
36,
7,
-67,
-23,
-45,
12,
2,
-38,
-2,
27,
12,
11,
-8,
-27,
13,
17,
38,
-61,
15,
-1,
-4,
-2,
51,
6,
-35,
51,
-22,
58,
-30,
8,
46,
44,
-28,
32,
-8,
10,
-16,
72,
-21,
-39,
44,
-12,
9,
26,
7,
-98,
-15,
8,
9,
0,
37,
8,
-39,
-65,
30,
58,
16,
-33,
19,
17,
-47,
33,
1,
4,
-49,
17,
-14,
42,
-38,
39,
34,
5,
19,
13,
47,
-10,
-11,
-42,
-1,
-64,
-20,
-36,
2,
0,
3,
0,
-21,
-1,
22,
-43,
-10,
11,
-32,
-3,
7,
-1,
37,
-7,
-11,
-30,
44,
37,
-27,
-6,
-87,
-13,
-58,
-38,
22,
4,
9,
-2,
30,
18,
65,
24,
19,
-38,
-57,
-37,
108,
35,
49,
36,
-18,
48,
-11,
11,
-6,
-2,
11,
41
] |
Ostrander, J.
(after stating the facts). The validity of the most of the objections set up could not be admitted in this court without overruling the cases of Sherlock v. Stuart, 96 Mich. 193 (21 L. R. A. 580), and People v. Blow, 120 Mich. 45, and we are not inclined to overrule either of these cases. It is settled law that license fees may be imposed for regulation or for revenue, and that the grant of a license may be made by the State directly, or it may be made indirectly through one of the municipal corporations of the State. A municipal corporation has no inherent power to grant licenses or to exact license fees. It must derive all its authority from the State, and the power must come by direct grant and cannot be taken by implication. 2 Cooley on Taxation (3d Ed.), pp. 1133, 1138. The same author says further:
“ The terms in which a municipality is empowered to grant licenses will be expected to indicate with sufficient precision whether the grant is conferred for the purposes of revenue, or whether, on the other hand, it is given for regulation merely. It is perhaps impossible to lay down any rule for the construction of such grants that shall be general and at the same time safe; but, as all delegated powers to tax are to be closely scanned and strictly construed, it would seem that, when a power to license is given, the intendment must be that regulation is the object, unless there is something in the language of the grant, or in the circumstances under which it is made, indicating with sufficient certainty that the raising of revenue by means thereof was contemplated.”
After laying down the rule that if a revenue authority is conferred, the extent of the tax, when not limited by the grant itself, is left to the judgment and discretion of the municipal government, subject tó the implied limitation that it must not be so heavy as to be prohibitive, thereby defeating the purpose of the power; and after stating that, generally, a fee for a license should not exceed the necessary or probable expense of issuing the license and of inspecting and regulating the business which it covers, the same learned author proceeds as fol-. lows:
“ But the limitation of the license fee to the necessary expenses will still leave a considerable field for the exercise of discretion, when the amount of the fee is to' be-determined. The fee, of course, must be prescribed in advance, and when it cannot be determined with any accuracy what the cost of regulation is to be. It must therefore be based upon the estimates, with more or less probability that the result will fail to come anything near a. verification of the calculations. Moreover, in fixing upon the fee, it is proper a.nd reasonable to take into account,, not the expense merely of direct regulation, but all the incidental consequences that may be likely to subject the public to cost in consequence of the business licensed. In some cases the incidental consequences are much the most important, and, indeed, are what are principally had in view when the fee is decided upon. The regulation of the business of huckster, for instance, could seldom be troublesome or expensive, but that of the manufacture and sale of intoxicating drinks could not be measured by anything like the same standard. * * * It cannot be questioned, therefore, if it is to be licensed by the public authorities, that it is legitimate and proper to take into the account all the probable consequences, or that the payment to be exacted should be sufficient to cover all the incidental expenses to which the public are likely to be put by means of the business being carried on. And all reasonable intendments must favor the fairness and justice of a fee thus fixed. It will not be held excessive unless it is manifestly something more than a fee for regulation. ’*
The power to license saloons in the city of Flint is expressly conferred by the charter. The exercise of that power by the passage and enforcement of the ordinance which is in question must be held to be for the purpose of regulation, and not revenue, and must be sustained so far as the amount of the license fee is concerned. This disposes of the first, second, third, fifth, and eighth of the objections set out in the application for the writ of certiorari. I think the fourth, sixth, and seventh objections are answered by the terms of the ordinance itself. If they are not, it does not appear that George Webb, the person against whom it was sought to have the warrant issued, has ever made any application to the council for a license or paid or tendered the license fee. It will be time enough to consider some of the points which are argued when a case is made involving a capricious or arbitrary enforcement of the ordinance.
The duty of the magistrate to entertain the complaint and issue the warrant is clear, and the judgment of the court below is affirmed, with costs.
Carpenter, C. J., and McAlvay, Hooker, and Moore, JJ., concurred. | [
29,
6,
17,
-69,
-14,
33,
32,
-18,
-61,
44,
15,
6,
34,
-13,
83,
62,
33,
49,
-44,
45,
-48,
-6,
11,
-3,
-14,
6,
84,
6,
-18,
17,
30,
-24,
0,
64,
-21,
23,
-37,
31,
35,
26,
19,
8,
15,
-3,
-6,
34,
74,
-69,
-9,
-32,
-24,
53,
-8,
11,
42,
29,
-3,
-36,
14,
20,
-63,
-14,
-16,
35,
9,
-12,
-10,
12,
40,
-51,
-38,
40,
-10,
21,
50,
18,
35,
11,
5,
67,
-16,
-10,
9,
-92,
-15,
39,
19,
-18,
-13,
-28,
33,
-21,
2,
20,
-15,
50,
35,
-55,
1,
2,
-46,
31,
71,
24,
11,
-18,
-5,
40,
32,
-54,
-7,
-24,
10,
-88,
0,
16,
-39,
22,
-11,
0,
0,
-30,
33,
-11,
-3,
19,
-2,
-10,
-87,
-50,
7,
6,
9,
4,
66,
33,
-20,
8,
24,
34,
2,
71,
16,
-16,
-21,
-43,
-1,
-10,
-19,
-37,
-17,
-27,
35,
15,
-56,
-43,
-38,
8,
56,
-54,
43,
32,
4,
-30,
-1,
-21,
-39,
-18,
-10,
23,
46,
26,
34,
-13,
58,
-73,
-4,
-11,
-10,
-11,
-57,
28,
12,
3,
35,
-32,
-6,
-20,
20,
-61,
20,
-37,
-14,
-19,
17,
-37,
3,
51,
-45,
-63,
-28,
-2,
-18,
59,
30,
16,
-40,
-7,
-13,
26,
-19,
47,
36,
6,
9,
15,
-45,
-4,
15,
10,
31,
-39,
10,
8,
-56,
15,
-30,
28,
-27,
-26,
-21,
45,
-7,
65,
-14,
-45,
38,
14,
-7,
-2,
-17,
71,
-37,
1,
-14,
28,
9,
-35,
-10,
-18,
30,
-37,
15,
38,
-50,
29,
7,
-4,
31,
-35,
-16,
17,
-34,
5,
-13,
-32,
3,
52,
20,
-20,
-25,
20,
-5,
0,
-19,
-14,
-12,
-69,
-18,
23,
15,
4,
8,
40,
-10,
107,
-23,
44,
25,
9,
50,
-38,
-30,
47,
30,
38,
20,
28,
-13,
-36,
9,
11,
59,
82,
68,
-67,
-17,
55,
-26,
-10,
-61,
-19,
-52,
61,
22,
31,
-36,
-47,
59,
6,
43,
39,
-13,
-12,
-27,
12,
71,
-24,
10,
-47,
-9,
-8,
30,
-9,
2,
-21,
-6,
-54,
-41,
-40,
-2,
-28,
40,
-5,
42,
1,
-75,
-34,
-26,
-15,
-18,
42,
-28,
67,
1,
-67,
1,
-32,
-26,
-32,
13,
4,
0,
-27,
1,
3,
-1,
-32,
15,
-12,
-19,
-13,
-60,
9,
35,
-8,
25,
27,
-71,
-19,
-24,
-16,
-30,
-13,
31,
34,
-9,
-22,
-43,
-51,
27,
36,
-52,
1,
2,
-15,
-6,
-21,
-28,
-40,
-77,
4,
-33,
6,
15,
5,
52,
71,
-18,
32,
-53,
-2,
17,
-25,
-34,
57,
30,
-23,
-1,
-2,
15,
-8,
-29,
1,
-1,
-46,
-41,
47,
-20,
-13,
-10,
-22,
26,
-64,
-48,
-55,
-20,
-41,
-57,
0,
-47,
-21,
11,
30,
-29,
-11,
-19,
22,
-40,
-63,
17,
10,
-10,
47,
1,
38,
-20,
-10,
13,
22,
4,
20,
-9,
-48,
3,
-42,
-43,
5,
35,
-1,
-28,
36,
-19,
-1,
-11,
-16,
-18,
2,
-12,
6,
1,
-24,
22,
-16,
-15,
6,
-21,
8,
10,
13,
24,
33,
-37,
-47,
-29,
-10,
39,
23,
14,
39,
20,
7,
37,
-22,
-24,
7,
12,
31,
45,
3,
-28,
22,
29,
38,
-34,
54,
-25,
-24,
14,
-19,
-17,
-41,
-68,
-27,
-11,
31,
-30,
-7,
36,
15,
-18,
42,
18,
6,
-39,
-6,
30,
46,
61,
42,
39,
24,
-11,
14,
31,
32,
-4,
-38,
15,
-13,
-106,
58,
-3,
17,
-23,
-15,
-39,
-11,
22,
5,
-78,
25,
33,
-4,
30,
21,
-17,
-5,
7,
-12,
0,
-69,
-24,
10,
-29,
-24,
43,
-46,
-20,
-25,
43,
-39,
1,
-30,
-21,
-7,
-27,
14,
78,
-51,
60,
43,
25,
-1,
-15,
0,
21,
0,
60,
9,
-51,
55,
-57,
-12,
-2,
9,
-19,
-23,
3,
-13,
-8,
-25,
39,
-18,
32,
46,
-35,
-20,
29,
-36,
39,
-22,
-4,
-29,
13,
-8,
40,
-14,
-15,
5,
-17,
3,
-47,
22,
-26,
42,
22,
-1,
27,
36,
-34,
-9,
-37,
-15,
46,
50,
-65,
68,
-6,
20,
-35,
33,
-28,
-41,
24,
84,
-67,
-39,
14,
-21,
20,
2,
14,
51,
-22,
-15,
5,
36,
37,
-17,
9,
-24,
6,
15,
11,
-73,
-19,
-2,
-38,
15,
-2,
27,
-23,
-49,
-35,
60,
-27,
-6,
61,
31,
49,
-40,
7,
-28,
-34,
22,
-35,
86,
34,
-13,
32,
9,
-38,
15,
-75,
-7,
-20,
-7,
-2,
43,
24,
-8,
7,
4,
-20,
-3,
34,
39,
25,
19,
9,
-85,
-26,
-21,
24,
15,
-23,
-25,
-44,
29,
-37,
-22,
-14,
-64,
4,
55,
0,
9,
18,
-12,
15,
30,
11,
24,
-56,
8,
9,
-29,
-24,
18,
-5,
-35,
44,
-7,
-2,
-4,
-2,
60,
-6,
-27,
28,
13,
-40,
47,
27,
-59,
9,
-9,
36,
14,
32,
-24,
-43,
6,
28,
-52,
-18,
-10,
38,
2,
29,
-9,
6,
15,
20,
-19,
-10,
3,
-13,
22,
45,
7,
50,
16,
-2,
-10,
-39,
27,
41,
-22,
32,
33,
-29,
7,
-59,
31,
-6,
-9,
-2,
-36,
-2,
0,
-13,
-7,
25,
-59,
18,
23,
-37,
-24,
17,
3,
4,
28,
-11,
9,
24,
2,
-17,
20,
25,
16,
-26,
3,
24,
13,
-46,
-20,
34,
-10,
18,
-41,
24,
62,
-46,
40,
-21,
-30,
-76,
-18,
-45,
25,
1,
24,
51,
17,
26,
10,
26,
42,
42,
67,
12,
-4,
-1,
-41,
-11,
18,
16,
-10,
-13,
35,
39,
-47,
16,
-2,
-59,
19,
-47,
-28,
50,
1,
-17,
-9,
-11,
-19,
10,
22,
32,
11,
50,
-24,
21,
16,
33,
-21,
-35,
-10,
12,
-24,
-35,
-7,
-12,
-7,
-9,
21,
-33,
-31,
-4,
57,
-5,
0,
15,
-38,
-6,
-8,
-53,
-56,
15,
-28,
30,
27,
-38,
-10,
-95,
-3,
-51,
-34,
3,
23,
-65,
-37,
6,
80,
8,
-20,
-10,
34,
-20,
-11,
-56,
10,
24,
18,
-20,
14,
-33,
8,
25,
-36,
-32,
-7,
5,
12,
-92,
-11,
-29,
15,
-6,
0,
-60,
25,
83,
-24,
-10,
-5,
68,
-14,
23,
2,
-44,
38,
34,
40,
30,
-3,
-14,
-68,
22,
30,
32,
-5,
36,
58,
0,
15,
27,
-14,
-7,
-1,
-15,
-36,
-48,
-8,
-24,
-25,
-35,
50,
51,
-44,
57,
2,
-75,
-7,
25,
-26,
18,
-8,
53,
-16,
-42,
39,
-14,
14,
-7,
2,
34,
-34,
-23,
-57,
49,
26,
-56,
15
] |
Hookee, J.
The complainants are owners of 67 acres «of land, most of ' which is bounded on the east by the Thornapple river. The stream is tortuous, having banks upon complainants’ premises approximating a mile long. It is shown that there is considerable bottom land adjacent to the river, in all about 23 acres. The defendant purchased a dam site at La Barge, 6 miles below the complainants’ farm (where there had previously been a dam 7 feet high), and some rights of flowage, which are said to permit the raising of the dam to 18 feet from low-water mark at a point 300 feet below the new dam.' The defendant admits that it built a new dam 15.59 feet high above low-water mark at La Barge, so constructing it that by the use of slash boards, it could be raised to 18 feet. It does not appear that it acquired any rights of flowage upon the complainants’ land, and it is claimed on its behalf that before building its dam, it caused levels to be taken which, as reported by its surveyor, showed that a dam 20 feet high would ‘ ‘ pond the water ” as far up as the Stauffer bridge, which was two miles down the stream below the north line of complainants’ land. The bill was filed to restrain the maintenance of the dam, and incidentally to recover damages for injury to complainants’ land.
There is no proof that the dam is higher than low-water mark at the north line of the complainants’ land, but the bill alleges that, in times of freshet, the dam so obstructs the flow of the stream that the low lands are submerged and injured by water and ice. - The learned circuit court judge who heard the cause found that this allegation was true, and rendered a decree accordingly, and the defendant appealed. The defendant contends that it has a right of flowage, which permits a dam 20 feet high, and that the complainants cannot complain so long as it does not raise the water at their premises at its ordinary stage. A map was put in evidence, by the defendant, which shows levels from the point called datum, 300 feet below the dam, to various points upon the complainants’ premises. From this we are able to determine that the lowest point of the land is 17.40 feet above datum, other measurements are 18.30, 18.50, 18.60, 18.70, and they run as high as 23.30 feet. There are two levels which show 24.20 and 24.30, but the most of them are below 21 feet, and many below 19 feet. It is complainants’ claim .that, when the freshets come, all of the water in the pond below the level of the dam, is dead water, and an obstacle to the flow of the water coming down from above, and that the consequence is a much greater rise at their premises than would occur if there was no impediment to the flow of the water along the bed of the stream, and that as a consequence their land is not only overflowed but is saturated with water, which it would not otherwise be. The circuit judge has so found, and we are of the opinion that the proof warrants the finding.
The defendant admits that the dam proper is 15.59 feet high, and its manager stated that it was 16 feet high. If by this is meant 16 feet high above datum it is one thing, but if 16 feet above the bed at the point where the dam is located, it may be quite another, for datum is necessarily some and perhaps considerably lower than low water at the dam. It is admitted that, with the flashboards in place, it would pond the water back to the bridge, a distance below complainants’ north line, at an ordinary stage of water, by which we understand is meant ordinarily low water. The evidence on the part of the complainants tends to show some two or three feet more of water at the bridge or ford in times of ordinary low water, and when we consider the volume of the stream, which is naturally a rapid one, and which, under existing conditions, enters at the bridge, on a level of six miles, whereas in its natural state there was a fall of 18 feet between that point and the dam site, it is self-evident that the velocity of the current must be lessened, and that the swifter current above must deliver the water more rapidly than it can be delivered at the dam, and the inevitable result must be a rise of the water above. How far up the stream such rise will be apparent must depend upon the distance necessary to increase the depth of the pond sufficient to establish an equilibrium between the volume of the stream above and the overflow at the dam. Whatever this rise is upon complainants’ land, if any, in ordinary low water, it is an invasion of their rights, and could be recovered for if it has damaged them, if their bill had made claim for such damage.
But the cause for suit alleged is that they are damaged in times of freshets, their claim being that the ponding of the water affects their premises at all times, but especially When the stream is swollen, and that the defendant is at such times liable for the consequences of its ponding the water. To this the defendant replies that it is not responsible for the consequences of freshets, and its counsel •cite the case of Richards v. Peter, 70 Mich. 290, to the proposition that it has the right to back the water to complainants’ north line, and that so long as it does no more, •there is no liability, whatever consequences may ensue. If a proper interpretation of the case of Richards v. Peter, supra, warrants defendant’s claim, it stands practically alone and unsupported. On principle we must say that the owner of land is entitled to have the water enter •and leave his premises in the natural and ordinary way at all times, and this rule applies to ordinary low water and ordinary high water. Subject to this the owners, above and below, may use the water for their own purposes. But the lower proprietor may not raise the bed of the stream below to a level for six miles, where previously there was a fall of 18 feet, either by filling with earth or a dead wall of water, thereby causing the accumulation of a head above to the injury of his neighbor, even if such effect is slight or imperceptible except in seasons of rain. He must act with reference to all ordinary stages of water and all seasons, and the exception relates only to those extraordinary and abnormal conditions and floods, which, if known before, at least occur only on rare occasions. Such. was the limitation placed upon a similar case in Pennsylvania, that of Monongahela Navigation Co. v. Coon, 6 Pa. 383, and the later case of McCoy v. Danley, 20 Pa. 88. See, also, Michigan Paper Co. v. Electric Co., 141 Mich. 48.
We must assume that it was such freshets that the court had in view in Richards v. Peter, supra, and that it did not intend to hold that a lower proprietor was entitled to take away the opportunity for the discharge of water from an upper proprietor, so that every increase in the volume of the stream would necessarily flood, to a greater or less extent, the lands of his adjacent upstream neighbor. See Whitney v. Wheeler Cotton Mills, 7 L. R. A. 614 (151 Mass. 396), note; Barnard v. Shirley, 41 L. R. A. 749 (151 Ind. 160), note; Avery v. Electric Co., 59 L. R. A. 876 (75 Vt. 235), note. We do not discuss at length the many cases, cited in these notes, which sustain the rule that a dam owner will be liable if, in the ordinary times of high water, the overflow passes his neighbor’s line. See Dorman v. Ames, 12 Minn. 451; Ames v. Manufacturing Co., 27 Minn. 245. For late cases, consult 4 Current Law, p. 1826, and note.
The defendant’s "counsel call attention to certain evidence showing that, by extensive dredging and draining in adjoining counties, the volume of water in Thornapple river has been materially increased. How far we would be justified in taking judicial notice of the fact that much,. if not all, of this work was after the year 1903, when this suit was commenced, we need not determine. It is enough to say that it is not shown that it was not after that time that this increase began. We are convinced that the complainants’ land has been injured by the defendant’s dam. If, as the complainants claim, the flashboards were in place at the time, we would think that their removal in .times of high water would do much to lessen the damage, possibly itcould prevent any. If, however, the flashboards were off,- as the defendant’s testimony tends to show, it is manifest that adequate wasteweirs, or gates, to relieve the flood were not provided. Before the decree was rendered, the dam went out. We construe the decree to mean that the court found that the complainants had sustained damages to the amount of $150, and that if the defendant should elect to rebuild its dam to a less height, so that it would not thereafter affect the stream at complainants’ premises, that sum, with costs, should be the limit of their recovery, but, if defendant should elect to rebuild its dam to the former height, they should recover the sum of $1,000, and that the defendant should thereafter have the right to flow such lands by such dam. The decree has not in terms provided for an injunction against the maintenance of the dam. It.has, however, placed a condition upon its erection, viz., the payment of $1,000 to the complainants. This was doubtless upon the theory that complainants, having sought relief in equity, should do equity, and accept reasonable compensation for past and future damages, instead of requiring a disproportionate sacrifice by the defendant, through the crippling of its water power and business.
We are of the opinion, however, that the damages allowed are excessive. The evidence does not show that the land is rendered useless. It will have a material value for farming purposes much of the time, and we think $690 ample compensation for all past and prospective damage to said land from the dam in question. To us it seems obvious that the maintenance of the dam at 15.59 feet in height has been and will continue injurious to the complainants, and that its effect has been to raise the water in times of freshet upon their land at least two feet. It is not improbable that it raised the water more than that. We are of the opinion, therefore, that the height of the dam should be reduced to 14 feet above datum, hereinbefore referred to, and that complainants recover $150 damages, unless defendant shall pay, or tender to the complainants or their solicitor, the sum of $690, within 90 days after notice of this decree, which sum, if paid, shall be in full payment for the fight to flow the. said; bottom lands of said complainants, heretofore and hereafter, by a dam of the height heretofore maintained by the defendant. The case of Blake v. Cornwell, 65 Mich. 467, warrants such a decree.
The decree will be modified in accordance with the opinion; the defendant to recover costs of this court.
Grant, Blair, Montgomery, and Ostrander, JJ., concurred. | [
-25,
56,
14,
-37,
16,
26,
36,
53,
-1,
48,
-2,
-8,
31,
35,
29,
-28,
-39,
-54,
-9,
-13,
-12,
-1,
51,
0,
-12,
21,
15,
-25,
-2,
41,
16,
18,
-61,
19,
0,
-26,
-7,
65,
2,
-5,
-5,
43,
4,
-48,
79,
6,
-16,
13,
8,
16,
13,
25,
3,
-36,
-40,
-29,
-23,
-59,
-31,
17,
-45,
6,
13,
7,
8,
41,
-20,
-18,
10,
-14,
-31,
48,
-5,
-31,
14,
-10,
-2,
-1,
2,
7,
-32,
42,
32,
30,
24,
-24,
-29,
-20,
2,
-12,
6,
-20,
-52,
11,
-17,
-15,
8,
12,
-22,
23,
21,
21,
33,
22,
4,
-13,
-76,
-26,
-12,
-3,
32,
30,
32,
-10,
-41,
-63,
33,
-45,
13,
-21,
17,
27,
12,
-4,
-62,
-18,
-1,
-25,
-60,
30,
11,
-63,
-53,
1,
12,
19,
-44,
-1,
19,
7,
0,
-6,
-18,
-6,
1,
46,
16,
-6,
7,
-29,
6,
15,
-15,
-17,
2,
16,
18,
-40,
20,
0,
47,
-4,
-42,
-56,
-89,
14,
-5,
-22,
7,
30,
56,
19,
0,
44,
-13,
-20,
3,
-1,
13,
0,
39,
-23,
-10,
32,
-32,
-19,
11,
8,
-63,
48,
5,
-59,
21,
12,
-13,
7,
-10,
8,
3,
17,
-10,
-7,
-8,
34,
3,
-22,
-21,
48,
-17,
18,
12,
19,
37,
-27,
-10,
26,
51,
-7,
19,
15,
35,
8,
41,
-10,
-44,
-26,
-19,
21,
57,
-16,
3,
-26,
18,
51,
1,
-11,
31,
27,
12,
-15,
-40,
57,
-94,
-75,
37,
26,
-46,
-2,
-5,
48,
-49,
-43,
-35,
35,
-8,
23,
-16,
-13,
-83,
-32,
11,
7,
44,
-29,
14,
-40,
-67,
12,
-4,
0,
13,
20,
-15,
-19,
-47,
-22,
-9,
0,
-45,
11,
22,
19,
2,
24,
-7,
-11,
10,
8,
-13,
38,
-1,
21,
-23,
-19,
-21,
34,
0,
3,
53,
-21,
-13,
-78,
0,
2,
5,
19,
14,
41,
22,
-18,
-42,
46,
-12,
48,
13,
28,
21,
-29,
-53,
-3,
63,
56,
27,
17,
-39,
7,
60,
-1,
5,
41,
4,
29,
-5,
-2,
51,
0,
17,
-53,
-57,
4,
24,
15,
23,
-9,
-3,
22,
-19,
32,
30,
-18,
-5,
53,
9,
25,
21,
-27,
-37,
-11,
-36,
43,
4,
9,
0,
-13,
36,
-17,
31,
8,
74,
-3,
-33,
33,
-20,
17,
54,
-2,
-6,
5,
-20,
0,
42,
21,
34,
33,
60,
-3,
-15,
-81,
-11,
24,
-26,
-33,
-39,
48,
11,
2,
13,
3,
21,
-37,
18,
-15,
12,
-2,
-60,
70,
-14,
-15,
-5,
-33,
10,
-42,
22,
-5,
-46,
49,
31,
32,
20,
18,
14,
14,
28,
-9,
11,
-46,
41,
-15,
18,
14,
-50,
40,
-22,
-17,
-16,
4,
-23,
-4,
-20,
40,
-32,
2,
48,
-57,
-25,
-11,
11,
-30,
-23,
-50,
-31,
36,
-58,
11,
18,
31,
37,
-28,
1,
-5,
-62,
21,
0,
-20,
-8,
-39,
-18,
-29,
1,
-13,
-26,
80,
66,
-26,
9,
8,
23,
44,
-25,
-16,
69,
31,
-10,
-38,
-21,
-45,
13,
64,
28,
49,
19,
15,
-7,
-64,
16,
17,
28,
-12,
14,
40,
0,
29,
8,
-40,
12,
10,
-26,
64,
62,
79,
1,
-63,
41,
-9,
-92,
37,
35,
5,
36,
9,
-5,
-2,
-21,
-39,
-16,
15,
-38,
-22,
27,
-7,
33,
-10,
-24,
-12,
-56,
-29,
-50,
-14,
5,
-2,
-18,
31,
24,
-14,
-2,
11,
-6,
-34,
2,
-20,
-28,
-33,
35,
0,
-22,
27,
-77,
-89,
-19,
14,
-33,
16,
-8,
-50,
50,
8,
66,
0,
27,
-4,
12,
44,
15,
-2,
-38,
-11,
-44,
-12,
-7,
58,
-52,
-91,
-33,
-26,
-49,
17,
13,
-15,
9,
-11,
0,
7,
-15,
-54,
7,
-39,
35,
-13,
13,
8,
-18,
-8,
-24,
0,
35,
30,
-7,
-2,
-16,
47,
23,
4,
1,
27,
67,
20,
9,
-43,
8,
20,
46,
-45,
2,
-10,
-21,
-40,
0,
9,
-45,
7,
-72,
3,
21,
-1,
0,
-6,
-26,
31,
-4,
44,
-26,
-52,
-83,
-13,
-10,
-9,
15,
13,
-50,
-13,
-64,
38,
26,
5,
32,
-20,
-9,
-6,
-3,
11,
40,
-9,
-9,
-11,
-50,
-4,
-22,
47,
-16,
-28,
8,
-51,
7,
43,
-5,
-28,
20,
45,
11,
9,
42,
-6,
9,
-10,
14,
-7,
67,
17,
3,
26,
27,
-16,
14,
33,
-12,
-8,
-3,
-3,
-41,
-14,
17,
-20,
42,
8,
-22,
0,
10,
-37,
-13,
63,
46,
32,
41,
38,
9,
-24,
-12,
-21,
-34,
7,
9,
-24,
-17,
-17,
-49,
14,
-9,
-2,
-52,
42,
-15,
64,
34,
4,
19,
24,
-28,
40,
8,
-52,
31,
-94,
-16,
-55,
12,
-12,
58,
-6,
1,
3,
2,
-58,
3,
1,
-46,
-13,
-10,
7,
-34,
-17,
24,
-25,
-41,
-45,
14,
-64,
-11,
-37,
41,
-1,
-18,
-17,
-10,
-27,
17,
-14,
-61,
10,
3,
6,
-17,
8,
-8,
-26,
18,
-43,
25,
-50,
31,
1,
-13,
-5,
-19,
3,
-22,
42,
-7,
6,
-39,
-20,
-5,
-17,
8,
62,
-27,
-15,
16,
-44,
-16,
7,
-15,
-30,
-32,
-6,
17,
-28,
-5,
52,
39,
-6,
-21,
84,
11,
-54,
44,
41,
50,
-1,
-7,
-19,
51,
-32,
38,
26,
72,
-34,
6,
1,
9,
8,
-66,
1,
-13,
-32,
3,
-29,
-11,
6,
-68,
19,
-12,
17,
25,
22,
18,
12,
-24,
23,
-32,
32,
72,
-11,
9,
21,
-9,
-8,
33,
42,
-32,
-3,
25,
40,
-59,
12,
-40,
-11,
-61,
-21,
-4,
-10,
9,
-16,
-15,
19,
-26,
4,
-15,
22,
18,
30,
50,
7,
29,
14,
-14,
21,
-3,
-9,
-8,
-4,
-25,
31,
-31,
13,
-62,
-60,
-38,
-27,
-14,
-1,
-23,
-27,
-28,
-29,
-40,
4,
-27,
-23,
-4,
64,
38,
-14,
25,
-14,
-58,
13,
-10,
20,
-12,
56,
-38,
-38,
18,
-11,
-17,
40,
36,
-61,
-10,
-5,
32,
-21,
11,
43,
-17,
-19,
10,
1,
5,
2,
-8,
0,
54,
17,
13,
-39,
-55,
16,
-15,
-5,
-55,
3,
-12,
-25,
23,
61,
35,
3,
-64,
-14,
1,
-31,
11,
-40,
43,
34,
-4,
14,
4,
-25,
27,
-39,
-27,
11,
29,
-5,
-1,
-39,
-14,
19,
-27,
44,
59,
16,
17,
-37,
-47,
1,
-22,
3,
6,
3,
-3,
31,
52,
24,
26,
34,
1,
-22,
-30,
12,
33,
31,
6,
19,
12,
-6,
0,
-8,
47,
-17,
3,
52
] |
Blair, J.
This is an action of replevin commenced' before a justice of the peace. The affidavit for the writ contained, among other things, the following:
“E. S. Knowles & Son, of the township of Moscow, county of Hillsdale, being duly sworn, deposes and says: That he is one of the firm of E. S. Knowles & Son, doing-business in the .township of Moscow, county of Hillsdale, State of Michigan; that he makes this affidavit for and on behalf of himself and said son; that said E. S. Knowles & Son are entitled to said property by virtue of a certain chattel mortgage given by William J. Cavanaugh to E. S. Knowles & Son. ”
On the return day, the said E. S. Knowles and his son, Jay Knowles, comprising the firm, appeared before the. court with their attorney and declared orally, as follows::
“Wm. J. Cavanaugh, defendant herein, was summoned to answer E. S. Knowles & Son, plaintiffs herein, in a plea of replevin, wherefore the said defendant unlawfully detains certain goods and chattels, the property of said plaintiffs, by virtue of a certain chattel mortgage and note datéd May 31, 1904, of the amount of $93 upon which note there appears two indorsements, as follows: One dated October 18, 1904, for $10; and one dated November, 1904, Received by horse, $35, which chattel mortgage being given to secure the payment of said note. The mortgage being read and introduced as evidence upon which the plaintiff dated his claim. Mortgage being due, and after demand of payment of balance due on said note, which was refused by said defendant, the plaintiffs bring the action to recover possession of the property mentioned in said mortgage, and asked judgment for the amount due on note, and interest on same, and costs, at torney’s fees, and counsel fees, as provided for in said chattel mortgage, and the retention of said property and costs of this suit.”
As shown by the justice’s return, the defendant appeared specially by attorney and “motioned to dismiss the cause on the following objections:" Insufficient return of the officer; the copy served on defendant was not certified to, therefore, not a certified copy; also the names as they appear on the writ are not correct, the son’s name not being mentioned.” The justice rendered judgment in favor of plaintiffs, as follows:
“The court finds the defendant did unlawfully detain said goods and chattels, and assess the damages sustained by the plaintiffs by the unlawful detention of said goods and chattels, fifty-two and thirty-five one-hundredths dollars ($52.35), and costs of three and thirty-five one-hundredths dollars ($3.35), and direct that the plaintiffs may retain the property taken for the purpose of selling same and collecting the above-mentioned damages and costs.
“ And on the 29th day of April, 1905, I rendered judgment in favor of E. S. Knowles & Son, plaintiffs, and against the defendant for fifty-two and thirty-five one-hundredths dollars ($52.35), damages, and three and thirty-five one-hundredths dollars ($3.35) costs of suit.”
Defendant removed the proceedings to the circuit court by special appeal, relying upon, the objections made in justice’s court and others set forth in the affidavit for appeal. When the special appeal came on to be heard in the circuit court, plaintiff’s counsel, as shown by the return of the circuit judge, asked leave to amend—
“The affidavit, process and other proceedings in said cause so that the individual names of said plaintiffs, namely, Ezra S. Knowles and Jay D. Knowles, copartners, doing business under the firm name and style of E. S. Knowles & Son, should appear therein as such plaintiffs, and also to amend the plaintiffs’ declaration so as to properly set forth the said plaintiffs’ said cause of action.
“ I further certify and return that the said defendant’s attorney then and there claimed and contended that said affidavit, process and other proceedings were fatally defective; that the court had no jurisdiction to hear, try and determine said cause; and that the said circuit court had no jurisdiction to grant or allow said amendments.
“I do hereby further certify and return that I, as said circuit judge, who heard said special appeal, did then and there overrule the motion and request of said plaintiffs’ counsel for leave to so amend said affidavit, process and other proceedings .in said, cause, and. did then and there grant said special appeal and rendered judgment quashing said affidavit, process and other proceedings and dismissing said cause, for the reason, and only for the reason, that I did not think that I, as said court, had the power to grant said amendments, but stated in open court that if I thought I had such power I would grant such leave to so amend such process, affidavit and other proceedings in said cause.”
The plaintiffs have- caused the proceedings to be removed to this court for review upon writ of certiorari.
We do not think that the affidavit and process were so fatally defective as to oust the justice of jurisdiction. The reference to the mortgage in the affidavit sufficiently identified the plaintiffs to authorize the justice to entertain jurisdiction. Barber v. Smith, 41 Mich. 143; Emerson v. Spring Co., 100 Mich. 131; Stever v. Brown, 119 Mich. 196; Beattie v. Hill, 60 Mo. 72.
We also think that counsel for appellants have placed the proper construction upon section 764, 1 Comp. Laws. It was not the intention of that statute to take away from the court the power of granting amendments, which it theretofore possessed, but rather to grant to the parties to a cause in justice’s court the absolute right to amend the pleadings at any time before they are closed, leaving with the court the discretionary power to permit amendments after the pleadings were closed which it possessed before the passage of the statute. Phelps Manfg. Co. v. Enz, 19 Conn. 58; Bennett v. Collins, 52 Conn. 1.
In the case before us, however, the justice was not requested to, nor did he, exercise his discretionary power to allow an amendment stating the names of the partners. •On the contrary, notwithstanding the objection of defendant’s attorney which squarely presented the point, plaintiffs’ attorney did not ask for an amendment, but asked for judgment on the merits upon the record as it stood, and final judgment was thereupon rendered upon such .record. It was not until the special appeal came on for hearing before the circuit court that any request was made for an amendment.
If, as seems to be conceded by appellants’ brief, an amendment stating the individual names of the partners was essential to the validity of a judgment for plaintiffs in the circuit court, such an amendment would be equally essential in justice’s court and the circuit judge would be justified in denying his authority to allow such amendment. The case before us differs from Stever v. Brown, supra, in that here there was no plea of the general issue, as in that case, to waive the objection, and if the objection was one that could be raised by special appeal, which we do not determine, it could not be obviated by amendment in the circuit court.
The statutes referred' to by appellants as conferring such authority, viz.-, sections 918, 1 Comp. Laws, and 10268,' 3 Comp. Laws, do not apply to orders relating to questions properly raised by special appeal but to general appeals only, where the case is to be tried upon the merits de novo. '
We think, however, that it was clearly necessary for plaintiffs to procure an amendment to their declaration, which sought to combine in one count a declaration in replevin -with one in assumpsit for the balance due on a promissory note.
The judgment followed the declaration, and not ■ only found that plaintiffs were entitled to the possession of the property taken on the writ, but gave them judgment for the balance due on the promissory note.
We think that the declaration conferred no jurisdiction to render the judgment. The judgment was void, and the court did not err in holding that he had no power to allow an amendment. Loranger v. Davidson, 110 Mich. 605.
While these objections were not made before the justice, they were properly raised in the affidavit for special appeal. Wright v. Russell, 19 Mich. 346.
The judgment is affirmed, with costs of this court to defendant.
McAlvay, Grant, Montgomery, and Moore, JJ.„ concurred. | [
-32,
9,
29,
7,
-18,
16,
29,
1,
37,
-26,
0,
-44,
-22,
30,
-11,
13,
1,
-40,
-15,
-12,
23,
-61,
-54,
-59,
48,
1,
32,
-36,
5,
10,
3,
12,
-4,
34,
-15,
9,
1,
-45,
-9,
-8,
-41,
11,
13,
-28,
-12,
10,
-27,
4,
26,
-29,
-2,
-22,
-1,
-18,
-14,
29,
-6,
14,
26,
-5,
7,
-25,
16,
2,
-32,
-35,
3,
29,
48,
-6,
16,
9,
62,
-5,
-24,
-42,
-59,
-9,
-23,
-4,
-15,
-25,
49,
-8,
-37,
-38,
-1,
-23,
5,
0,
38,
41,
7,
25,
18,
4,
29,
29,
-11,
30,
-10,
2,
27,
14,
-6,
31,
-14,
-56,
-31,
31,
15,
-4,
55,
-47,
-16,
9,
-52,
-34,
17,
0,
0,
-23,
-12,
-14,
-16,
34,
0,
-12,
1,
51,
23,
14,
-43,
5,
-11,
14,
13,
8,
-3,
6,
66,
-9,
7,
-39,
48,
-25,
49,
-41,
-11,
5,
-4,
30,
-6,
1,
12,
3,
40,
0,
37,
-7,
48,
9,
-49,
-41,
-40,
1,
9,
16,
14,
-7,
-8,
16,
-47,
-66,
-10,
32,
-1,
-4,
11,
-2,
-11,
37,
17,
-53,
1,
-68,
-14,
-38,
18,
15,
26,
-12,
18,
32,
-44,
44,
-2,
-9,
-40,
24,
1,
3,
43,
-22,
-38,
-48,
57,
-23,
0,
49,
-16,
-19,
-32,
18,
-2,
14,
-27,
-16,
43,
12,
20,
58,
-37,
-19,
-46,
33,
22,
3,
0,
-12,
-13,
16,
-1,
-23,
-2,
-1,
-10,
32,
-14,
-9,
-24,
-27,
10,
-8,
8,
-7,
-11,
0,
-34,
32,
-38,
-11,
-64,
-9,
-22,
-16,
-11,
8,
-17,
-10,
-1,
17,
-28,
30,
1,
-69,
28,
-23,
-14,
4,
-16,
-42,
5,
4,
3,
33,
-22,
12,
-29,
-21,
36,
-31,
-55,
-1,
18,
31,
4,
28,
-12,
24,
-35,
-18,
17,
-65,
36,
-15,
-33,
-77,
53,
2,
-32,
13,
-12,
-9,
-39,
-19,
-7,
-31,
-3,
0,
23,
-3,
-24,
6,
14,
-4,
-12,
10,
-6,
-39,
-2,
20,
-34,
18,
-21,
19,
32,
-5,
15,
-1,
7,
-28,
1,
23,
-5,
9,
41,
-51,
-1,
-3,
5,
60,
-15,
-32,
-29,
8,
-1,
-49,
-33,
40,
-31,
-9,
3,
7,
-2,
30,
-13,
40,
-18,
17,
54,
10,
7,
38,
-20,
6,
-55,
-29,
-27,
63,
40,
-18,
-39,
43,
-50,
9,
-31,
-59,
-29,
9,
-14,
-59,
-13,
17,
12,
6,
-18,
48,
-27,
66,
-71,
24,
50,
-3,
-7,
-60,
0,
11,
-74,
-13,
0,
40,
32,
22,
-16,
-5,
7,
-40,
55,
16,
-17,
-19,
-26,
15,
47,
10,
-33,
-62,
7,
34,
-49,
-3,
-2,
-31,
48,
10,
9,
14,
9,
-2,
10,
-7,
19,
62,
84,
33,
-67,
45,
0,
29,
7,
14,
16,
4,
52,
10,
-16,
25,
16,
14,
37,
36,
-19,
-14,
-23,
2,
28,
14,
27,
-54,
30,
-27,
14,
-1,
4,
-14,
-18,
-7,
17,
15,
15,
33,
1,
3,
-51,
-33,
21,
-27,
0,
-4,
1,
5,
-27,
44,
-50,
12,
-26,
-13,
17,
30,
15,
-14,
-12,
88,
-4,
38,
-39,
-53,
22,
34,
7,
6,
-32,
-3,
38,
-10,
-68,
-24,
-30,
11,
4,
-9,
2,
-22,
-30,
33,
42,
13,
59,
54,
43,
19,
-43,
-19,
-13,
-6,
21,
54,
1,
26,
-27,
2,
-30,
11,
-20,
-21,
39,
49,
-3,
0,
-32,
37,
12,
-5,
-22,
-17,
-23,
-49,
-20,
28,
-9,
-22,
-5,
25,
-30,
-7,
29,
-11,
-14,
-46,
1,
-19,
23,
-19,
33,
-48,
6,
-7,
8,
-8,
-23,
-23,
16,
8,
30,
-7,
-17,
-22,
3,
-24,
8,
31,
-17,
-48,
13,
31,
-8,
-5,
0,
-1,
-25,
16,
-46,
-37,
-38,
7,
-60,
44,
17,
43,
43,
10,
-24,
-39,
-1,
-22,
-28,
69,
-24,
-41,
13,
11,
11,
0,
7,
15,
27,
-21,
-27,
2,
41,
-1,
2,
2,
-15,
-4,
0,
-8,
5,
58,
-18,
-1,
-24,
51,
25,
25,
-13,
35,
1,
-25,
-6,
-6,
-40,
7,
11,
-22,
27,
-59,
36,
26,
-10,
13,
30,
13,
0,
-13,
68,
14,
26,
-37,
53,
-12,
-27,
39,
5,
-22,
-10,
28,
37,
20,
29,
-17,
-6,
-4,
-14,
-14,
-1,
-3,
56,
13,
-30,
25,
-8,
-16,
53,
-67,
4,
11,
-19,
15,
-56,
-5,
-45,
-14,
-18,
30,
36,
15,
12,
-6,
9,
32,
4,
-23,
-25,
-9,
4,
33,
15,
-2,
7,
-23,
10,
38,
-29,
25,
-13,
44,
-32,
-21,
-25,
-28,
27,
-39,
31,
-59,
12,
-44,
7,
23,
41,
9,
41,
8,
-15,
-10,
-19,
-32,
-67,
5,
-30,
-30,
-23,
-21,
12,
-21,
49,
51,
11,
-20,
32,
-25,
-3,
37,
9,
6,
-45,
-45,
10,
40,
-33,
38,
11,
4,
-22,
13,
-47,
8,
7,
-6,
0,
11,
-32,
-57,
10,
33,
1,
-7,
49,
-40,
37,
0,
11,
19,
-9,
-51,
9,
36,
3,
17,
11,
-57,
3,
-28,
-39,
-1,
79,
-3,
-8,
0,
-22,
46,
24,
32,
26,
10,
-17,
11,
-7,
-2,
-39,
-24,
-1,
-34,
-24,
-39,
-15,
39,
31,
18,
-7,
52,
12,
20,
12,
15,
-15,
33,
-50,
27,
-5,
-25,
-14,
9,
0,
-16,
69,
-5,
28,
-6,
1,
-24,
-31,
-2,
-4,
14,
19,
-4,
-13,
-51,
7,
18,
16,
5,
-16,
-45,
-25,
13,
-23,
0,
11,
21,
-36,
-9,
14,
-9,
-14,
-14,
-34,
6,
41,
31,
-30,
38,
27,
-15,
21,
5,
9,
-26,
-20,
-12,
-30,
-12,
1,
57,
52,
-34,
-44,
45,
-22,
-12,
-7,
31,
26,
15,
-20,
-52,
-25,
34,
1,
-7,
-44,
-13,
8,
12,
-3,
16,
-27,
36,
6,
-32,
-34,
-29,
-28,
-23,
7,
-10,
-31,
18,
5,
-28,
-52,
2,
10,
-39,
15,
38,
0,
29,
7,
15,
-65,
9,
61,
-34,
56,
-15,
-2,
23,
47,
8,
-15,
-28,
29,
29,
-32,
18,
-15,
-21,
-43,
-12,
15,
55,
-16,
19,
6,
6,
12,
13,
24,
-6,
-1,
-29,
27,
18,
40,
19,
18,
-3,
-6,
-3,
-37,
-43,
-57,
-12,
56,
-14,
2,
-25,
42,
-39,
-51,
12,
-19,
13,
31,
-26,
4,
-19,
48,
23,
40,
-46,
-9,
3,
32,
-20,
-11,
-27,
3,
3,
71,
-16,
42,
-31,
6,
14,
-13,
-16,
-39,
8,
22,
36,
-9,
10,
-13,
-3,
57,
-7,
36,
-16,
26,
15
] |
Blair, J.
Complainant’s husband, the appellee, purchased of Samuel J. Brown a hotel property with the furniture, on January 14, 1886, and gave back a bond, and mortgage, signed by himself and his wife, for $8,800. The complainant signed the mortgage as well as the bond, merely as the wife of the appellee. Afterwards, on April 20, 1886, the appellee sold the property to defendant Mary E. Wilson, who assumed and- undertook to pay the bond and mortgage, and the appellee, with his wife, executed a conveyance thereof to said Mary E. Wilson. After this, and about December 6, 1886, Samuel J. Brown assigned to the complainant an interest in the bond and mortgage, to the amount of $4,800.
On April 6, 1887, the complainant commenced this suit to foreclose the mortgage, and on February 25, 1888, a decree was made. Both complainant and Brown appealed to this court from that decree, each claiming that her and his interest respectively took precedence of the other. The case is reported as Quinnin v. Brown, 72 Mich. 304. And this court decreed, on November 1, 1888, that complainant should be fully paid before (anything should be paid to Brown, 'affirming the decree below in all other respects. Under the decree as modified by this court, the property was sold, March 23, 1889, by a circuit court commissioner, to Samuel J. Brown, and from the proceeds the complainant was paid in full, and the commissioner reported a deficiency of $4,403.95. Nothing further was done in the case until December 5, 1894, when Samuel J. Brown assigned all his interest in the decree to the appellant.
August 13, 1895, the appellant filed his petition in this case, stating the assignment to him, and that he had assigned an interest therein to Jeremiah Lynch, and praying that he and Lynch be substituted as defendants for Brown, and also setting forth that there was a large deficiency (without saying how much), and praying a personal decree against Mary E. Wilson and the appellee, which petition was granted by an order made September 3, 1895. The appellee claims that no notice of the petition or of the hearing thereof was given to him. Jeremiah Lynch subsequently died, and the appellant now has all his interest in the decree. Nothing more was done until June 17, 1904, when appellant caused an execution to be issued and levied on the lands of the appellee. On October 28, 1904, the appellee filed his petition to vacate the execution and the proceedings thereunder, and also to vacate the order on which the execution purports to have been issued. In his petition the appellee claims as the ground upon which he asks relief:
“1. Because he was released from all personal liability by Brown.
“2. Because the answer claiming the benefit of a cross-bill by Brown was never served on him, and he was never served with any subpoena or process to answer the same, or notice thereof, and never did appear thereto, and said answer claiming the benefit of a cross-bill was never taken as confessed by him.
“3. Because the original decree of foreclosure does not decree or adjudge that he is liable for any deficiency.
“4. Because the order for execution for the deficiency made September 3, 1895, was made without any service of notice upon him.
“5. Because the issuing of the writ of execution after the lapse of over 15 years after the making of the decree as modified by this court, and more than eight years and nine months after the making of the order of September 3, 1895, without any further showing or notice, was irregular and not in accordance with the laws of this State.”
Appellant contends that appellee’s petition should have been dismissed, since a final decree cannot be modified or vacated by petition. Conceding the correctness of appellant’s position in this regard, it was competent for appellee to attack the validity of the execution upon the ground that it was barred by lapse of time. The decree in this court was made November 1, 1888, and was filed in the circuit court November 19, 1888. The execution in question was issued June 17, 1904. The execution was invalid, and was properly vacated by the circuit court. Shelden v. Barlow, 108 Mich. 375; Smith v. Pegg, 111 Mich. 232. It is unnecessary to discuss the other questions raised.
The decree of the circuit court is affirmed, with costs of both courts to appellee.
Montgomery, Ostrander, Hooker, and Moore, JJ., concurred. | [
-38,
-12,
7,
-6,
-10,
-6,
0,
-11,
44,
-7,
20,
-24,
-17,
12,
28,
-4,
6,
-23,
-5,
-7,
3,
-41,
-57,
-8,
-9,
21,
21,
-62,
-14,
-38,
14,
-35,
-52,
46,
-49,
-12,
7,
-4,
28,
-3,
-16,
-55,
-28,
2,
-33,
27,
-45,
-58,
18,
-6,
-51,
-63,
36,
-11,
36,
19,
-5,
1,
0,
13,
-26,
-29,
-33,
-14,
13,
-10,
-2,
6,
35,
-12,
27,
-51,
3,
7,
1,
-4,
16,
-7,
-93,
-44,
-60,
-55,
22,
36,
21,
6,
-15,
0,
-13,
22,
-40,
53,
-2,
-4,
-28,
15,
24,
52,
-19,
27,
8,
-45,
-23,
31,
10,
23,
0,
-22,
-54,
23,
5,
-38,
51,
23,
-24,
-18,
-51,
-7,
-34,
-22,
57,
13,
35,
-76,
23,
42,
-12,
-30,
-22,
-11,
-16,
31,
-28,
29,
-13,
-8,
-2,
-30,
1,
4,
41,
12,
-32,
-15,
72,
-28,
8,
-28,
-1,
-16,
-16,
55,
4,
-10,
42,
-21,
16,
14,
4,
-3,
32,
29,
22,
-53,
-28,
-17,
-36,
-41,
27,
38,
56,
79,
-34,
-48,
30,
6,
41,
-44,
-64,
-31,
-34,
24,
-10,
-30,
-23,
-29,
-38,
-28,
23,
33,
4,
-52,
-2,
0,
-4,
31,
28,
-71,
6,
30,
6,
-27,
-23,
18,
20,
-6,
15,
-4,
-19,
25,
-43,
-1,
-40,
0,
-60,
30,
-12,
-5,
22,
38,
0,
12,
-33,
-33,
-57,
-39,
24,
-24,
38,
1,
-64,
-16,
-14,
-21,
-32,
11,
1,
-8,
12,
-23,
4,
24,
-19,
30,
-49,
28,
-25,
-41,
-53,
-19,
-23,
12,
-4,
26,
61,
6,
-17,
2,
44,
-38,
-33,
-19,
-5,
2,
21,
-58,
25,
-37,
12,
32,
6,
-4,
45,
-18,
-36,
18,
-40,
25,
-35,
-27,
10,
-2,
-42,
19,
50,
-21,
20,
-35,
-11,
45,
60,
-42,
-3,
-16,
22,
-6,
-9,
-81,
46,
25,
-47,
-23,
21,
30,
12,
51,
-2,
2,
-8,
-9,
52,
0,
-33,
-15,
52,
-14,
-4,
-16,
3,
12,
10,
9,
-52,
13,
32,
38,
8,
-30,
-59,
5,
-11,
1,
20,
36,
-39,
28,
30,
50,
-32,
-3,
-8,
48,
-4,
-25,
16,
-31,
-8,
-34,
-41,
31,
-38,
33,
-33,
22,
-23,
68,
22,
31,
-19,
49,
23,
5,
12,
9,
-10,
-17,
-31,
-8,
3,
14,
33,
59,
-32,
-1,
-65,
-9,
-47,
28,
1,
-18,
71,
2,
18,
-9,
14,
42,
-51,
-30,
-24,
18,
-11,
-35,
6,
10,
-4,
-86,
17,
-15,
-46,
2,
5,
-1,
-21,
-37,
-47,
-2,
7,
-11,
28,
6,
21,
21,
40,
14,
19,
24,
0,
-49,
22,
-5,
-35,
-43,
40,
15,
12,
-36,
30,
47,
-18,
26,
-32,
38,
27,
52,
47,
19,
-56,
-27,
-36,
47,
2,
45,
-3,
32,
4,
3,
0,
-24,
83,
40,
22,
-7,
-20,
20,
-20,
-16,
30,
8,
1,
-28,
82,
3,
52,
53,
-13,
23,
-16,
17,
-6,
1,
0,
13,
64,
1,
3,
-13,
-4,
-23,
9,
-1,
26,
7,
-2,
24,
-28,
-13,
-18,
-23,
-57,
4,
22,
1,
0,
-2,
0,
16,
0,
-42,
-23,
-31,
18,
-23,
23,
28,
-18,
-31,
-56,
-19,
0,
14,
-1,
-60,
12,
46,
39,
-37,
-1,
-3,
-3,
-6,
-13,
66,
7,
15,
21,
-9,
41,
66,
-5,
43,
-49,
57,
0,
-8,
-11,
17,
-19,
-8,
1,
-6,
-35,
36,
35,
61,
-39,
23,
-20,
-84,
-8,
22,
17,
-56,
10,
31,
-73,
10,
-24,
-18,
26,
7,
6,
-32,
10,
8,
50,
-41,
-40,
-19,
-43,
0,
0,
18,
0,
-12,
24,
-9,
-13,
-14,
-22,
11,
-51,
-1,
5,
-38,
14,
-21,
4,
33,
-23,
-4,
-17,
21,
-5,
31,
44,
7,
-31,
3,
-12,
-22,
0,
-31,
-26,
-58,
-50,
-48,
-2,
39,
7,
8,
-3,
5,
15,
49,
-2,
53,
-5,
-24,
-68,
-2,
36,
49,
-9,
-48,
8,
-6,
4,
-24,
-23,
-6,
22,
-51,
-9,
-4,
-11,
14,
9,
13,
30,
-82,
-53,
31,
0,
-2,
7,
28,
20,
-87,
29,
-50,
-28,
24,
99,
7,
-17,
-2,
9,
23,
0,
-31,
46,
-10,
-10,
44,
-26,
-36,
52,
-14,
19,
11,
13,
2,
46,
-3,
-49,
56,
-26,
6,
44,
4,
-17,
-14,
32,
21,
-22,
-7,
17,
-28,
-69,
26,
-31,
-14,
-30,
8,
-6,
21,
7,
47,
6,
12,
16,
19,
-15,
18,
-9,
16,
-15,
11,
-14,
1,
21,
-12,
-34,
40,
-4,
15,
22,
5,
-37,
24,
-8,
-41,
6,
-82,
6,
-7,
-22,
-27,
0,
30,
-9,
-62,
-1,
19,
-10,
6,
6,
2,
-24,
11,
-73,
42,
-43,
19,
8,
-16,
18,
68,
23,
1,
39,
-23,
-9,
15,
18,
-57,
-20,
6,
35,
-6,
-19,
39,
-7,
1,
10,
2,
-10,
-45,
-3,
21,
-58,
-31,
7,
26,
4,
0,
13,
-2,
0,
-28,
-6,
-42,
7,
-19,
-31,
-9,
22,
19,
35,
16,
11,
-28,
-6,
-20,
-68,
-8,
46,
-30,
0,
-44,
6,
58,
-2,
-26,
-1,
22,
-12,
22,
21,
7,
-5,
-77,
-24,
25,
-27,
34,
-42,
22,
14,
28,
-8,
36,
-28,
40,
-18,
0,
-1,
10,
-19,
7,
-15,
-23,
19,
2,
13,
5,
15,
-35,
-13,
-6,
-29,
-35,
18,
9,
32,
16,
-19,
23,
-17,
-41,
4,
-24,
13,
-39,
-90,
-39,
8,
18,
45,
5,
46,
23,
3,
-25,
8,
-8,
20,
29,
44,
35,
14,
3,
30,
77,
1,
17,
46,
23,
57,
9,
7,
-9,
-35,
32,
-37,
4,
33,
4,
10,
40,
44,
9,
6,
38,
-11,
-13,
-2,
-41,
-17,
-45,
-6,
16,
-16,
-15,
13,
-25,
23,
70,
-10,
9,
18,
-7,
-61,
-60,
-29,
5,
-19,
-29,
37,
12,
-8,
-30,
-39,
26,
6,
-14,
-8,
43,
15,
6,
38,
14,
-24,
33,
20,
-11,
18,
-31,
28,
38,
24,
8,
-37,
13,
-39,
28,
48,
-49,
65,
8,
-39,
-4,
-2,
17,
37,
-35,
-27,
1,
-24,
-8,
-16,
55,
11,
-48,
66,
97,
47,
34,
-27,
-49,
15,
-18,
-11,
-6,
-37,
37,
60,
-24,
27,
-21,
62,
-62,
10,
-3,
12,
29,
54,
-11,
-14,
12,
48,
0,
41,
13,
17,
-14,
57,
10,
-2,
6,
32,
29,
58,
50,
18,
-59,
-29,
35,
-8,
4,
-76,
10,
30,
-1,
-1,
41,
-13,
11,
36,
-66,
78,
15,
6,
30
] |
Ostrander, J.
This case is ruled by Simmons v. Board of Sup’rs of Alcona County, ante, 591.
The appeal is dismissed, and the record remanded for further proceedings. No costs are awarded.
McAlvay, Blair, Montgomery, and Hooker, JJ., concurred. | [
-51,
-15,
64,
24,
27,
-12,
35,
15,
-17,
29,
15,
-26,
-63,
1,
42,
-20,
15,
-35,
-56,
-30,
-20,
-13,
-3,
18,
-6,
-3,
-9,
13,
-36,
-1,
-4,
-21,
-26,
19,
22,
-1,
-53,
53,
-5,
-5,
-29,
0,
6,
-56,
-29,
-1,
37,
9,
-17,
-3,
-18,
49,
-25,
-21,
25,
50,
102,
-8,
39,
16,
-6,
37,
-25,
10,
77,
6,
-57,
-44,
56,
-31,
-17,
-14,
-8,
-69,
118,
-13,
-23,
-35,
41,
30,
-3,
50,
24,
13,
-14,
-54,
-18,
-10,
54,
86,
-19,
-14,
-5,
10,
12,
32,
36,
24,
30,
28,
11,
-27,
35,
-9,
34,
22,
-27,
18,
21,
-39,
-57,
1,
36,
13,
25,
39,
2,
-17,
0,
39,
42,
77,
69,
-21,
-18,
-37,
-12,
44,
-33,
1,
6,
-7,
6,
-33,
28,
66,
36,
-32,
-45,
-32,
7,
20,
-14,
4,
-2,
-4,
36,
-46,
-69,
3,
-46,
-15,
1,
-34,
2,
0,
71,
-26,
31,
30,
1,
3,
-9,
-108,
-6,
-26,
22,
18,
-12,
-10,
28,
63,
29,
52,
8,
6,
-16,
17,
10,
49,
13,
-19,
-49,
26,
-15,
-6,
-40,
-20,
-55,
1,
-7,
-17,
0,
-9,
5,
-26,
39,
66,
14,
32,
-27,
6,
7,
-25,
28,
-12,
48,
-41,
-11,
38,
6,
-40,
-48,
14,
27,
27,
-20,
31,
19,
8,
-35,
25,
21,
-27,
-73,
-17,
5,
41,
14,
10,
-16,
-8,
-14,
37,
22,
10,
-5,
-31,
31,
-38,
-78,
-13,
-16,
28,
-26,
4,
33,
-24,
19,
-2,
61,
-24,
-79,
14,
-23,
-15,
-21,
30,
-17,
-4,
22,
-14,
-40,
-25,
-64,
-21,
31,
55,
-1,
38,
-5,
38,
40,
-44,
-12,
-13,
13,
-54,
28,
10,
72,
-30,
-11,
-65,
-48,
39,
-24,
51,
30,
-4,
-4,
8,
3,
-26,
24,
-20,
-22,
13,
20,
-72,
-12,
-26,
-1,
14,
13,
-7,
2,
-1,
0,
-10,
-23,
0,
-20,
-46,
-3,
-66,
-43,
12,
-29,
9,
-63,
-38,
7,
-59,
-25,
-24,
37,
21,
51,
46,
-37,
19,
-47,
55,
-52,
13,
-40,
13,
64,
26,
26,
8,
-4,
-19,
44,
-25,
-122,
35,
41,
-29,
7,
5,
25,
24,
-32,
-56,
-8,
31,
-33,
35,
16,
-39,
-24,
-31,
62,
-34,
13,
46,
-11,
10,
28,
-15,
3,
5,
23,
63,
-16,
-38,
-15,
24,
-42,
37,
34,
-87,
1,
-29,
28,
-3,
-16,
7,
11,
27,
-14,
-38,
40,
20,
-1,
28,
-4,
-16,
-32,
-4,
3,
15,
-41,
-26,
-31,
-14,
23,
28,
-48,
19,
11,
-12,
4,
12,
-50,
32,
-42,
-10,
18,
14,
-27,
7,
31,
17,
7,
18,
17,
-45,
-23,
0,
-5,
19,
-8,
39,
-17,
39,
-32,
10,
-24,
4,
-9,
-51,
-44,
-26,
28,
0,
36,
-91,
33,
8,
-19,
-18,
56,
29,
21,
-16,
-9,
-24,
8,
-1,
-6,
31,
0,
-15,
-31,
21,
0,
-42,
-50,
-2,
-15,
-22,
15,
-37,
10,
-11,
-38,
-16,
43,
-21,
-24,
-2,
-7,
-27,
-46,
-17,
27,
9,
-29,
-7,
-33,
-34,
-63,
-3,
38,
22,
-30,
13,
-61,
-16,
38,
-45,
35,
11,
-5,
22,
61,
23,
38,
-18,
1,
-1,
-56,
5,
-42,
30,
46,
0,
9,
-24,
-71,
-41,
9,
18,
7,
7,
-13,
42,
-23,
44,
-15,
16,
-24,
-52,
-45,
31,
-18,
10,
15,
-36,
4,
0,
-62,
20,
-21,
-25,
-39,
22,
-37,
1,
-1,
-28,
1,
-17,
-53,
-79,
-25,
-35,
-17,
-21,
-3,
-2,
23,
10,
-37,
61,
-10,
-28,
66,
-31,
72,
22,
56,
10,
36,
19,
16,
-15,
23,
1,
2,
15,
-19,
-26,
16,
-44,
4,
28,
-17,
2,
-35,
12,
19,
-39,
21,
44,
-2,
23,
-20,
78,
6,
-16,
1,
5,
-27,
33,
-39,
-5,
21,
1,
52,
-10,
-90,
-32,
-21,
-8,
-32,
-46,
12,
57,
0,
18,
-55,
-3,
88,
-37,
-5,
36,
5,
-13,
-37,
-18,
8,
12,
-39,
17,
-32,
4,
-17,
-20,
-64,
30,
15,
-48,
3,
-57,
22,
24,
-24,
6,
23,
12,
-42,
-7,
-77,
-58,
7,
-57,
50,
-11,
27,
80,
36,
-40,
11,
12,
46,
-14,
25,
-34,
-21,
-17,
19,
12,
-3,
25,
14,
87,
10,
0,
-17,
-38,
57,
51,
47,
80,
5,
-33,
0,
30,
29,
0,
-65,
7,
34,
29,
-11,
0,
24,
51,
21,
8,
-12,
-25,
9,
2,
40,
14,
-47,
1,
-14,
83,
-23,
12,
57,
7,
-30,
53,
56,
-63,
-31,
-10,
-9,
-40,
5,
-4,
0,
-27,
-7,
66,
-12,
12,
5,
7,
-26,
-5,
-68,
24,
-24,
-40,
-15,
35,
-19,
20,
33,
-20,
-55,
14,
14,
8,
-12,
16,
17,
-33,
61,
2,
-32,
0,
-16,
-53,
-39,
75,
-17,
-10,
13,
-5,
-34,
26,
18,
51,
-22,
-60,
-10,
40,
-23,
-51,
7,
-23,
-24,
-39,
-32,
-5,
34,
-55,
-29,
-59,
-75,
54,
24,
-14,
71,
-45,
6,
5,
35,
30,
-7,
-5,
0,
127,
-31,
31,
4,
13,
-53,
63,
-3,
2,
56,
11,
-13,
-8,
61,
-26,
-25,
-49,
-13,
-25,
-30,
7,
23,
24,
34,
43,
32,
15,
-5,
12,
36,
-4,
-23,
20,
-4,
-73,
13,
-17,
-9,
-85,
-41,
-13,
-7,
6,
-21,
-28,
-39,
13,
6,
-18,
32,
16,
14,
-38,
-10,
-82,
38,
17,
-23,
59,
45,
35,
-4,
5,
-47,
92,
19,
12,
2,
-27,
41,
-26,
13,
-8,
-5,
10,
-35,
-48,
0,
-20,
5,
-42,
-79,
-8,
15,
-82,
6,
31,
69,
-16,
0,
3,
51,
24,
-5,
20,
-37,
8,
26,
1,
23,
22,
37,
24,
6,
-17,
-31,
14,
-6,
27,
14,
29,
38,
15,
-30,
-32,
-36,
-11,
25,
28,
-2,
0,
24,
7,
-68,
53,
27,
3,
-24,
3,
-58,
-23,
73,
0,
30,
-3,
42,
-7,
5,
18,
7,
-20,
-43,
23,
-14,
22,
40,
18,
-22,
-47,
37,
-26,
12,
50,
-51,
24,
8,
-24,
18,
48,
-2,
-67,
-15,
26,
-28,
-2,
57,
42,
-19,
22,
-16,
45,
17,
-14,
-3,
-17,
37,
-6,
69,
34,
28,
-58,
10,
21,
-84,
26,
11,
-7,
-17,
29,
10,
-52,
41,
-17,
5,
17,
-41,
-73,
7,
-55,
25,
-22,
-29,
5,
16,
15,
19,
-48,
7,
15,
-38,
17,
-1,
-33,
65,
-8,
45,
-14,
31,
54,
25,
-1,
-10,
-52
] |
Marston, J.
The bill in this case was filed in aid of certain executions against Thomas Whittle and Lewis N. Algoe, and levied upon certain real estate which it is claimed Thomas Whittle conveyed to his father James Whittle for the purpose of defrauding his, Thomas Whittle’s, creditors.
The evidence in this case is clear and beyond dispute, that James Whittle, who is now an old man, has been working by the month for different parties, but much of the time for Thomas Whittle, since he came to Michigan in 1865. That during nearly all this time his wages have been from eighteen to twenty dollars per month and board, having been at work in a brewery, and that his services were worth such wages. During all this time James Whittle has been steady, industrious and economical, rarely spending any money, and his wages have been received by or retained by his son during all this time, under an agreement between them that interest should be allowed thereon. It also appears that Thomas and James had one or two settlements, and that frequently during all this time the fact that an actual indebtedness existed was talked of and at no time denied or kept secret. In March, 1876, Thomas Whittle gave his note to his father for two thousand seven hundred dollars, as the amount then owing him. This note was introduced in evidence and criticised, but we were unable to discover anything in the appearance of the paper or surroundings to cause us to doubt its being genuine or that it was not given at the time it purported to be. Evidence was also given that the total amount of the indebtedness in 1879 was upwards of four thousand dollars.
We have no doubt but that Thomas Whittle was owing his father James Whittle a large amount of money, and this being the fact, he had a legal right, if he chose to exer•cise it, to convey sufficient of his property to his father in payment of that debt. He had a right to prefer him as a .creditor, even although he did not have sufficient other property to pay the rest of his debts. This doctrine is too well settled in this State to be now disturbed. Jordan v. White 38 Mich. 253.
It follows that the decree dismissing the bill as to James 'Whittle should be affirmed with costs.
The other Justices concurred. | [
0,
46,
34,
-9,
7,
-16,
34,
-17,
35,
55,
4,
3,
14,
-56,
49,
-6,
1,
-18,
-27,
15,
1,
-25,
24,
-22,
11,
8,
11,
43,
-28,
0,
0,
13,
1,
34,
-2,
11,
0,
-19,
29,
-48,
45,
14,
28,
35,
18,
6,
0,
-29,
-16,
-14,
2,
-28,
-23,
8,
16,
18,
-25,
-30,
3,
26,
26,
-53,
55,
8,
-42,
-9,
1,
41,
7,
-12,
-18,
31,
19,
9,
64,
-11,
-12,
-34,
-37,
13,
-29,
-26,
-14,
-1,
-41,
17,
-14,
7,
-8,
9,
22,
14,
-11,
8,
21,
49,
1,
44,
-53,
-14,
1,
-27,
-46,
-27,
0,
-24,
6,
-38,
-33,
33,
0,
-10,
32,
0,
-35,
0,
-20,
9,
-20,
10,
5,
-3,
-11,
42,
-19,
-4,
-48,
-47,
-13,
20,
6,
-15,
-83,
18,
-21,
-18,
-9,
10,
-27,
12,
-31,
-26,
0,
-47,
-28,
0,
-12,
1,
37,
-51,
1,
23,
27,
45,
13,
-3,
2,
0,
41,
-40,
12,
-11,
50,
-14,
-46,
-2,
-3,
-13,
20,
9,
-28,
-23,
-50,
-17,
53,
47,
-6,
-53,
-15,
-51,
2,
47,
13,
-29,
-18,
-9,
34,
-11,
14,
-52,
1,
14,
-29,
-35,
-6,
23,
33,
3,
-32,
-19,
-10,
-39,
52,
27,
19,
-26,
30,
-37,
-26,
28,
-6,
-17,
-3,
-20,
-42,
58,
-60,
-79,
-1,
-25,
17,
21,
1,
47,
-31,
-22,
-31,
25,
-7,
-32,
-40,
-17,
40,
-25,
-11,
7,
-18,
30,
-28,
4,
-36,
13,
-11,
-31,
15,
21,
-18,
-4,
-16,
44,
-51,
-9,
-25,
-3,
-27,
-18,
-13,
-36,
-14,
-43,
-38,
12,
-36,
4,
43,
-32,
32,
27,
3,
9,
-5,
-25,
27,
31,
-67,
-21,
-1,
-39,
-43,
6,
3,
0,
-7,
16,
7,
15,
-18,
15,
-8,
-1,
24,
-54,
45,
26,
36,
35,
-16,
-8,
9,
-13,
-15,
-54,
6,
5,
8,
28,
-18,
-4,
11,
-12,
-2,
7,
-15,
2,
40,
25,
-27,
8,
36,
13,
14,
19,
12,
-63,
8,
49,
1,
-44,
13,
-2,
-30,
-13,
37,
26,
-40,
-12,
59,
-6,
17,
-36,
15,
-6,
-17,
16,
-12,
-30,
-20,
-53,
-19,
2,
-18,
26,
18,
53,
-3,
35,
8,
-16,
-11,
35,
14,
-31,
-10,
25,
-21,
-5,
-46,
-29,
19,
-23,
27,
40,
-40,
25,
4,
0,
-17,
44,
-17,
4,
13,
-18,
4,
8,
50,
2,
12,
-8,
-37,
8,
-70,
27,
-4,
26,
-41,
8,
6,
-27,
-17,
-15,
-24,
34,
-17,
-15,
-20,
0,
-15,
34,
-22,
-17,
22,
-11,
-3,
-8,
10,
-3,
23,
-49,
9,
-31,
4,
38,
4,
-7,
50,
-9,
15,
36,
-14,
-29,
20,
-3,
46,
-16,
36,
20,
-7,
3,
-32,
2,
-12,
53,
-2,
21,
8,
-6,
-54,
23,
32,
-13,
-20,
5,
-16,
19,
41,
20,
8,
-21,
10,
5,
13,
-14,
15,
-23,
20,
-3,
-17,
-18,
59,
-29,
-29,
18,
1,
-22,
-15,
-12,
42,
-20,
10,
-17,
1,
19,
-8,
36,
-35,
1,
-49,
-64,
-25,
-13,
16,
-15,
-10,
-12,
9,
-11,
-49,
-39,
2,
-3,
-11,
28,
35,
-8,
-8,
-20,
-23,
-15,
6,
55,
10,
-35,
-18,
23,
-37,
49,
18,
-11,
56,
-31,
59,
57,
-26,
11,
25,
-3,
14,
-34,
5,
-10,
-40,
39,
13,
-17,
-22,
-4,
15,
4,
13,
-16,
8,
2,
56,
42,
-23,
-8,
-16,
-57,
16,
23,
-25,
0,
-25,
31,
-18,
16,
12,
24,
34,
-32,
-11,
21,
-21,
-58,
28,
-3,
2,
-17,
16,
-42,
-9,
-13,
2,
22,
-29,
-22,
15,
-31,
3,
-11,
1,
0,
-21,
-26,
1,
2,
-20,
40,
-13,
-10,
-8,
26,
26,
-20,
2,
-31,
26,
43,
22,
24,
2,
-17,
-9,
-10,
-9,
9,
-22,
6,
0,
9,
40,
37,
8,
25,
-9,
35,
-36,
-24,
11,
-4,
29,
32,
-42,
9,
32,
33,
5,
-29,
23,
23,
-23,
-7,
-34,
41,
-26,
15,
26,
22,
9,
-41,
-25,
1,
0,
-10,
-8,
-2,
-31,
22,
-10,
12,
-21,
0,
32,
1,
4,
42,
18,
3,
29,
-31,
69,
-16,
17,
75,
-3,
9,
45,
12,
42,
-7,
21,
-45,
-11,
-11,
8,
-21,
-54,
18,
56,
-4,
-8,
20,
53,
58,
-16,
29,
27,
-18,
2,
-14,
28,
13,
-40,
-5,
-50,
20,
44,
28,
43,
-1,
24,
-5,
-27,
9,
-17,
16,
-10,
3,
-16,
-7,
16,
21,
46,
22,
-24,
17,
7,
6,
-13,
-37,
-38,
-34,
33,
-36,
39,
-36,
17,
-23,
-60,
52,
1,
-30,
-5,
-15,
19,
-23,
-26,
-10,
-50,
34,
-29,
0,
-52,
4,
14,
-9,
6,
4,
33,
13,
26,
28,
12,
50,
-4,
16,
-22,
8,
-44,
4,
-14,
19,
29,
54,
-20,
-26,
-75,
5,
48,
-55,
-62,
-11,
-56,
24,
26,
22,
-10,
9,
48,
-25,
51,
-34,
-46,
12,
-1,
-28,
-20,
60,
77,
61,
-42,
-2,
24,
22,
-30,
-14,
-17,
-12,
2,
7,
2,
10,
19,
29,
38,
16,
24,
-40,
9,
17,
-11,
18,
-37,
9,
-20,
-27,
-2,
-8,
-9,
43,
-23,
27,
33,
1,
17,
70,
-36,
60,
-40,
41,
19,
-6,
-39,
4,
18,
-9,
4,
-14,
-12,
-15,
-5,
-8,
-5,
35,
1,
10,
15,
40,
-41,
-1,
-6,
-23,
-29,
-15,
-34,
-52,
3,
5,
-22,
-13,
36,
22,
-20,
24,
4,
-34,
-8,
-7,
-31,
-42,
5,
-8,
-4,
-30,
-34,
-9,
32,
-32,
-22,
52,
35,
13,
50,
30,
24,
66,
34,
-44,
58,
17,
-13,
-56,
-9,
-19,
-22,
-54,
6,
-66,
19,
-22,
3,
-4,
-26,
-5,
-14,
5,
26,
6,
-7,
45,
2,
-12,
-10,
-31,
-50,
20,
-10,
3,
5,
-12,
19,
1,
-34,
36,
-26,
-22,
35,
-29,
-30,
27,
-30,
0,
-17,
17,
-31,
-83,
2,
-43,
55,
33,
24,
23,
25,
48,
-8,
27,
1,
-67,
-11,
29,
-20,
-15,
25,
60,
-15,
16,
-30,
-42,
-46,
0,
-24,
7,
23,
1,
-8,
38,
18,
-9,
20,
-27,
-28,
-2,
-27,
-26,
12,
-11,
53,
3,
7,
-38,
44,
15,
-36,
34,
0,
-1,
54,
-17,
-48,
3,
41,
36,
-5,
36,
58,
-4,
5,
21,
12,
-20,
12,
-46,
-39,
27,
17,
-6,
-23,
49,
-30,
-63,
-26,
0,
-24,
33,
-34,
13,
-37,
-3,
35,
16,
52,
-8,
-20,
28
] |
Cooley, J.
The bill in this case was filed for tñe purpose of winding up the affairs of a co-partnership which was alleged to exist between the parties for the purpose of keeping a hotel in a building known as the Barnard House. The bill prayed for an accounting and a receiver. The defendant answered to the merits and proofs were taken.
It was not disputed that a partnership had existed between the parties, but the defendant claimed that complainant had voluntarily taken himself out of the business. On both sides it was agreed that defendant was in possession of the Barnard House while the suit was in progress, and keeping it as a hotel. What property in the house belonged to the parties respectively or to the partnership was the subject of controversy, and evidence was gone into respecting it.
The case being in readiness for hearing on pleadings and proofs, was called up and the following order or decree made:
Title oe Cause.
“ On reading the pleadings and proofs in this cause, and after having heard the arguments of counsel, and on motion ■of Isaac H. Parrish, the solicitor for the complainant, it is ordered, adjudged and decreed that David L. Stivens be and hereby is appointed receiver of property now in the Barnard House, so called, and which was in said house when this bill was filed, and which belonged to the firm of Morey & Grant, being all of the furniture and property therein except the private property of the defendant, John Grant.
That such receiver make a careful inventory of all.the property and file the same with the register of this court; that before such receiver take possession of such property he must execute and file with the register of this court a bond in the sum of two thousand dollars, to be signed by at least two sufficient sureties, to be approved by such register; and it is further ordered that such receiver hold said property to be disposed of according to the order of this court,' but that he do not remove the same from said Barnard House, or interfere with the use of the same by defendant before the 12th day of January next.”
It is to be observed of this order:
That it does not purport to be interlocutory. It is made when the case stands for final hearing on the merits, and when nothing, so far as we can learn from the record, hinders a final disposition. It is made, therefore, when the final decree should have been or might have been made: it is a decree in fact; and we only infer that it was not intended to be final from the fact that it does not in terms ■completely dispose of the case.
That it assumes to appoint a receiver without any .adjudication whatever. 1 Even as an interlocutory order there should have been embraced in it a finding of such facts as would give authority for divesting the possession of the defendant, but when made after the evidence is in, the necessity that the court should find that the necessary facts were made out is still more obvious. To appoint a receiver at that stage of the casé, without first adjudging the merits upon which the right or the propriety of the appointment necessarily depended, was very plainly erroneous, and must, we think, have been inadvertent.
That it is not an appointment of a receiver of the partnership assets generally, but only of the property which at the time is and when the bill was filed was, in the Barnard House, and which belonged to the partnership, “ being all of the furniture and property therein except the private property of the defendant.” Perhaps to the extent of this recital the order should be deemed an adjudication; but as such it is uncertain and insufficient, for it does not undertake to distinguish between the property of the firm and the property of the defendant, or furnish any means whereby the receiver could do so. And from the record it appears that there was and had been from the beginning of their dealings a controversy between the parties respecting the ownership of the property which was made use of in keeping the Barnard House. This controversy, apparently, the ■order turned over to the receiver. Not only was this improper, but it was also improper to appoint a receiver of particular property only, if the appointment was made with .a view to a final accounting.
That in this order or decree, made as already stated at the time for final decree, and upon a record ready for final decree, there is not only no adjudication of partnership and no order for accounting, but there is also no equity reserved. "When a decretal order is taken at the hearing we are to suppose the party asks and takes all he is entitled to unless the recitals therein show the contrary. If, therefore, he takes a decree for one branch of the relief prayed, and expects at a future time to apply for further relief, his decree with the ■consent of the court is framed with the proper reservation. But in this case the party obtains the receivership for which he prayed in his bill, and the decree is entered as if he was satisfied with that and desired and expected nothing further. It is only the insufficiency of this relief to accomplish any substantial result without further action of the court that leads to the supposition that further action must have been ■expected.
But if complainant expected to bring the case to further hearing, and to ask for an accounting, that very fact was sufficient evidence that this order should not have been made. There was no showing of urgency by affidavit; the appointment was made on the pleadings and proofs, and could not properly have been made unless the judge had first satisfied himself that on the pleadings and proofs complainant was entitled to an accounting. If he did not consider the case sufficiently to satisfy himself of that fact, he should not have subjected the parties to the expense and the defendant to the inconvenience of a receiver, when perhaps a full hearing would show the appointment to be unwarranted and vexatious. If he did consider the case sufficiently to satisfy him that there should be a Receiver, he should at the same time have ordered an accounting. In ahy view we can take of this decretal order it appeal’s to be erroneous. Receiverships should never be created unless the reasons are found to be imperative.
It is said, however, that it is not a final decree or order, and therefore not appealable. Rut, as we have seen, it does not purport to be interlocutory, and we gather from inference only that complainant expected to move further. It was made at the time for final decree, and when a final adjudication might have been had. Had the adjudication taken place, it would unquestionably have been appealable; and we cannot agree that defendant is cut off from the right to a review by the sentence of dispossession having been made without the adjudication which was needed for its support.
The order is reversed with costs.
Campbell and Marston, JJ. concurred. | [
-8,
2,
1,
29,
-9,
-11,
14,
32,
-19,
-31,
-5,
2,
-5,
-2,
0,
-1,
-49,
-32,
-27,
-16,
-15,
2,
10,
-43,
27,
45,
-17,
-32,
-5,
18,
19,
-24,
-8,
69,
-38,
-9,
24,
50,
-10,
-22,
31,
45,
3,
6,
20,
11,
-11,
-25,
29,
19,
-14,
-47,
13,
-12,
-18,
-20,
-77,
24,
76,
0,
-21,
0,
-3,
-34,
-21,
3,
34,
-61,
-33,
-63,
29,
43,
-9,
12,
6,
-19,
6,
-12,
4,
11,
38,
-7,
20,
3,
-36,
-33,
43,
15,
35,
28,
-40,
-7,
-14,
1,
-13,
0,
50,
22,
30,
42,
-25,
-28,
-24,
-22,
15,
-21,
18,
-49,
3,
-6,
18,
-66,
42,
-5,
4,
-12,
-31,
-55,
-81,
-13,
45,
46,
54,
-42,
-3,
-14,
3,
-48,
0,
0,
4,
4,
-76,
-8,
22,
-14,
16,
-12,
-30,
-82,
22,
12,
26,
9,
-35,
47,
-50,
-8,
23,
-33,
-10,
73,
4,
18,
5,
6,
-17,
-37,
33,
-4,
-44,
-25,
27,
-85,
12,
-29,
-47,
26,
25,
37,
-8,
21,
-28,
24,
-12,
18,
-1,
-30,
-47,
-22,
5,
29,
12,
-8,
43,
-26,
25,
-4,
-15,
-51,
15,
-34,
-31,
64,
31,
-17,
-11,
-7,
37,
45,
-30,
-3,
1,
14,
19,
-17,
71,
-6,
-37,
41,
-39,
4,
-41,
-21,
-28,
39,
-8,
-28,
20,
20,
-32,
4,
-20,
-14,
-46,
-39,
20,
-15,
32,
-5,
-14,
-22,
-24,
-1,
-19,
-21,
-17,
39,
-26,
-2,
-39,
4,
-12,
-43,
43,
-46,
4,
12,
-33,
0,
4,
20,
12,
40,
40,
-30,
0,
13,
-11,
-30,
23,
-30,
-34,
-5,
48,
-10,
31,
-38,
20,
29,
37,
50,
7,
84,
14,
-28,
-11,
-20,
-43,
9,
10,
1,
20,
26,
47,
-56,
-11,
0,
3,
-4,
-2,
-20,
-12,
-10,
20,
7,
-25,
34,
-28,
-16,
-25,
-32,
2,
26,
-20,
23,
9,
16,
13,
-24,
-50,
32,
-12,
-37,
16,
20,
-39,
19,
-10,
7,
23,
-23,
-3,
-3,
17,
-6,
69,
-9,
10,
5,
0,
0,
18,
-80,
-19,
14,
46,
-35,
-60,
19,
-11,
20,
9,
-23,
-35,
36,
19,
-11,
-37,
32,
-54,
19,
-54,
22,
22,
-9,
-62,
-38,
-18,
84,
-32,
11,
-23,
-41,
2,
-22,
-28,
-20,
23,
14,
6,
2,
-29,
1,
-40,
4,
-41,
7,
-34,
35,
20,
-23,
9,
-7,
0,
19,
-51,
-23,
52,
24,
0,
32,
23,
-15,
6,
-19,
-30,
-10,
-27,
4,
3,
3,
-29,
-3,
-36,
36,
-10,
-6,
7,
51,
-25,
-25,
7,
-9,
-40,
26,
-60,
-61,
19,
5,
25,
-10,
-14,
7,
-1,
-12,
5,
39,
-18,
14,
-70,
13,
4,
10,
4,
22,
3,
-50,
-1,
2,
3,
-3,
-36,
3,
-21,
45,
-13,
-25,
28,
17,
-18,
-10,
-3,
-2,
7,
58,
38,
-25,
42,
11,
75,
-6,
-9,
-9,
-34,
-12,
3,
-27,
0,
-3,
-9,
-16,
27,
4,
-30,
-14,
-10,
18,
6,
26,
30,
61,
64,
58,
-22,
1,
9,
9,
0,
13,
0,
1,
26,
6,
-13,
16,
-1,
0,
-51,
-12,
-3,
62,
28,
25,
23,
-36,
-7,
29,
-16,
56,
-2,
-1,
24,
0,
-3,
43,
23,
-9,
30,
-5,
37,
3,
-37,
13,
-66,
4,
36,
10,
28,
-26,
-2,
42,
-14,
28,
-4,
56,
-12,
-7,
58,
-21,
-70,
48,
10,
3,
59,
44,
-10,
-12,
3,
-8,
-25,
23,
53,
23,
-54,
23,
24,
-11,
5,
21,
-22,
-55,
17,
-50,
-1,
-32,
-6,
10,
12,
19,
-28,
25,
15,
28,
-23,
3,
-53,
9,
5,
23,
-11,
-3,
11,
-29,
-16,
3,
-14,
12,
-33,
29,
-40,
-5,
11,
5,
14,
-68,
5,
-16,
8,
1,
-82,
-48,
14,
-41,
-11,
-4,
-18,
60,
0,
25,
5,
-37,
-1,
-10,
-31,
22,
-14,
-15,
18,
26,
0,
1,
16,
-8,
49,
27,
10,
49,
29,
30,
-25,
-50,
39,
12,
-40,
55,
-32,
18,
7,
-45,
-45,
-15,
-33,
-37,
-51,
69,
-14,
13,
19,
8,
6,
-9,
16,
50,
17,
20,
53,
22,
41,
-11,
23,
-42,
-13,
57,
-16,
0,
75,
-17,
17,
31,
27,
10,
18,
20,
27,
-35,
-60,
-19,
-26,
15,
11,
-17,
-28,
-32,
-40,
37,
36,
-26,
3,
-1,
-25,
-58,
-76,
-61,
-24,
41,
-7,
-11,
45,
32,
2,
-48,
19,
42,
-28,
-16,
-10,
-8,
-23,
-11,
26,
4,
28,
-12,
10,
9,
-7,
39,
-26,
-12,
-12,
-38,
60,
-13,
-22,
12,
3,
4,
49,
-16,
-31,
-24,
-28,
-1,
-29,
44,
-42,
-9,
-2,
-13,
-13,
65,
-37,
-3,
29,
13,
-5,
39,
3,
20,
62,
28,
-43,
14,
31,
16,
-12,
-45,
3,
49,
16,
22,
-33,
-11,
21,
17,
0,
9,
18,
-6,
4,
12,
-23,
-12,
9,
32,
39,
25,
1,
-17,
25,
-31,
-33,
31,
-8,
-15,
0,
-14,
22,
33,
-35,
24,
-6,
21,
-54,
-36,
-4,
-10,
29,
-18,
-16,
3,
-20,
56,
16,
3,
-45,
41,
-30,
-20,
10,
18,
0,
-41,
-54,
-33,
-39,
-12,
17,
-1,
-35,
0,
10,
-6,
38,
-6,
-25,
13,
-37,
-5,
32,
-43,
-78,
-27,
74,
11,
6,
22,
-18,
8,
-55,
22,
1,
26,
-17,
0,
-15,
44,
-56,
-32,
-36,
29,
-3,
6,
-29,
-19,
18,
-18,
33,
-31,
0,
-13,
23,
-46,
7,
3,
-20,
24,
24,
-8,
30,
-4,
-42,
2,
-16,
12,
48,
23,
-35,
0,
-30,
-8,
-83,
44,
20,
18,
58,
-50,
-21,
3,
22,
28,
1,
-3,
26,
30,
35,
-37,
0,
17,
-69,
16,
-18,
-22,
10,
-30,
2,
35,
24,
33,
43,
30,
-23,
-18,
-24,
44,
-5,
13,
10,
31,
41,
-8,
3,
59,
23,
-1,
48,
20,
-3,
46,
-14,
-26,
8,
5,
-10,
-74,
18,
-14,
29,
44,
-5,
-77,
-5,
29,
-1,
-1,
11,
-16,
0,
2,
-41,
33,
-28,
12,
15,
-15,
25,
-15,
-14,
-57,
-25,
-24,
24,
-42,
-4,
51,
30,
27,
-26,
-30,
-9,
1,
-30,
-6,
-54,
33,
35,
-3,
-16,
10,
50,
23,
8,
2,
-25,
57,
11,
-16,
-42,
10,
6,
22,
-38,
7,
-19,
-21,
-38,
-17,
-3,
-16,
-4,
-13,
-4,
18,
27,
6,
25,
76,
-7,
-21,
-35,
-25,
80,
79,
-15,
11,
-32,
-13,
8,
-21,
-4,
-24,
33,
46
] |
Graves, C. J.
We had this cause before us several terms since and then sent it back for a new trial. The character of the controversy is sufficiently explained in the published report. 44 Mich. 424 At the trial subsequently had pursuant to said order, the circuit judge directed a verdict for defendants, and the plaintiff alleges error. The leading matter of dispute was whether' the written contract of sale made by the plaintiff’s husband was adopted as applicable to the property in question or whether the agreement which had efEect was the oral one made in person by the plaintiff, and in case the latter was the operative arrangement then whether it was an absolute transfer of the chattels to Leavitt’s mortgagor, or was conditional on the payment in sixty days of the Warren mortgage of $2500, as claimed by the plaintiff.
On these subjects there was conflicting testimony and it should have been left to the decision of, the jury under suitable advice. We may not assume that another trial will so proceed as to give rise to such questions as the rest of thé case before us presents.
The judgment is reversed with costs and a new trial granted.
The other Justices concurred. | [
-32,
28,
-31,
-11,
-65,
-1,
12,
45,
11,
18,
8,
-7,
28,
-18,
-21,
-20,
0,
-35,
-5,
14,
-20,
-15,
-50,
22,
27,
-8,
13,
-11,
-14,
-10,
38,
20,
2,
48,
-45,
-1,
20,
5,
-40,
-13,
16,
-7,
-12,
-41,
1,
-7,
25,
-37,
16,
0,
32,
-34,
-5,
-25,
-24,
-32,
-26,
30,
-20,
-32,
32,
-28,
7,
-7,
-1,
-16,
0,
-6,
-23,
-2,
-35,
-13,
49,
-40,
11,
-17,
-33,
-16,
-56,
-31,
27,
-22,
72,
-24,
-54,
25,
15,
10,
-60,
26,
21,
50,
15,
16,
4,
19,
55,
-10,
23,
16,
-31,
-3,
7,
48,
-24,
-5,
-61,
-18,
2,
16,
33,
-11,
27,
-8,
0,
13,
-19,
-9,
-35,
-24,
32,
4,
2,
-36,
7,
6,
-10,
-12,
-28,
-35,
-18,
28,
-32,
33,
-50,
-43,
26,
-16,
3,
-19,
65,
6,
-9,
-24,
0,
4,
3,
-9,
-47,
-21,
-29,
13,
4,
42,
27,
-34,
14,
-42,
42,
-32,
48,
44,
-23,
-3,
-29,
-24,
-21,
24,
12,
-11,
27,
-13,
2,
-41,
1,
0,
19,
-12,
24,
20,
22,
27,
32,
-26,
7,
-34,
-2,
-18,
-1,
-9,
-11,
-3,
-17,
22,
-4,
50,
0,
16,
27,
-34,
-9,
-27,
-28,
-1,
-3,
-3,
19,
-24,
-5,
29,
-11,
22,
-19,
-62,
-21,
1,
11,
6,
-39,
-35,
31,
31,
-5,
16,
-57,
-38,
34,
8,
7,
0,
0,
13,
4,
26,
24,
-21,
22,
7,
-16,
-23,
11,
-12,
22,
-26,
-20,
5,
-14,
28,
22,
1,
16,
15,
35,
12,
22,
30,
2,
-13,
-20,
-4,
8,
71,
-53,
3,
8,
8,
35,
-6,
-8,
-1,
-20,
-47,
0,
17,
-14,
12,
-25,
-2,
-53,
5,
25,
-13,
-16,
10,
1,
43,
8,
62,
16,
36,
35,
-8,
-14,
-13,
4,
49,
-4,
-8,
2,
-37,
-16,
-19,
31,
33,
-2,
19,
-15,
4,
-17,
4,
0,
-5,
19,
4,
-1,
50,
-77,
6,
3,
-40,
22,
0,
-12,
11,
21,
-3,
31,
-51,
-42,
3,
1,
22,
2,
1,
16,
-25,
9,
-48,
-44,
-11,
52,
7,
-11,
-22,
26,
-16,
-6,
-45,
-24,
34,
-32,
-9,
-38,
30,
-48,
-12,
42,
-28,
-18,
1,
17,
5,
-9,
17,
-20,
24,
19,
-36,
20,
55,
1,
9,
-12,
-6,
-30,
9,
-14,
-4,
3,
46,
0,
2,
-8,
36,
20,
35,
-41,
2,
-21,
34,
-30,
11,
9,
25,
12,
-27,
-9,
-26,
-54,
-34,
-5,
20,
-40,
-6,
-48,
43,
-35,
-31,
-11,
14,
-12,
-62,
4,
-25,
11,
-5,
18,
35,
46,
35,
23,
5,
4,
36,
16,
-10,
50,
-23,
5,
1,
-3,
17,
5,
-53,
38,
30,
-17,
0,
-20,
48,
14,
50,
-53,
55,
6,
-35,
1,
13,
37,
10,
19,
3,
14,
-20,
-7,
-2,
8,
-46,
18,
-41,
49,
-43,
12,
-45,
-8,
-12,
-8,
-45,
-5,
-32,
16,
-8,
46,
-24,
-13,
-6,
-30,
-29,
-5,
11,
24,
44,
-28,
14,
-13,
15,
-51,
-7,
9,
-2,
19,
-20,
14,
20,
-32,
7,
2,
-16,
5,
21,
17,
33,
7,
-13,
22,
-12,
-9,
-37,
19,
22,
3,
-7,
-16,
39,
-26,
41,
55,
-2,
10,
32,
52,
-23,
-46,
-60,
27,
31,
16,
16,
20,
-31,
12,
64,
14,
-1,
17,
17,
-13,
-2,
1,
-22,
-50,
39,
17,
41,
-21,
5,
-17,
16,
46,
8,
3,
-31,
12,
26,
-6,
32,
28,
-3,
9,
-29,
-51,
2,
0,
2,
72,
-14,
5,
-59,
5,
-10,
5,
-40,
-39,
23,
11,
-39,
-11,
23,
-28,
-25,
-79,
-46,
-27,
-28,
19,
2,
18,
43,
1,
28,
-32,
-1,
10,
-1,
-2,
-12,
-8,
-16,
-2,
59,
-13,
-6,
-35,
-24,
10,
12,
-24,
11,
-24,
22,
27,
-31,
-17,
-30,
18,
34,
-4,
0,
-11,
26,
33,
0,
-10,
-22,
27,
-4,
-2,
8,
-20,
36,
25,
-17,
25,
-6,
-6,
37,
44,
-4,
-17,
9,
15,
28,
-20,
3,
0,
-5,
-62,
24,
-1,
-4,
-45,
25,
-6,
-11,
23,
0,
27,
-68,
7,
-15,
32,
-15,
-42,
33,
5,
-2,
12,
19,
-42,
4,
28,
25,
57,
16,
14,
10,
41,
32,
36,
-11,
31,
-33,
-19,
-4,
0,
-2,
-1,
-28,
16,
17,
-9,
-6,
-16,
-18,
-21,
-4,
28,
21,
2,
-34,
22,
-24,
-41,
4,
-4,
15,
-1,
30,
-24,
-25,
-6,
11,
-6,
1,
11,
48,
-1,
0,
-18,
-10,
5,
-49,
35,
-55,
-3,
5,
17,
14,
37,
-5,
11,
-6,
-3,
31,
-19,
58,
-1,
0,
-41,
-30,
-34,
1,
-7,
-16,
14,
-15,
20,
6,
-28,
-35,
58,
19,
25,
-23,
19,
19,
-27,
-6,
-30,
8,
15,
27,
-24,
-27,
19,
-19,
16,
-41,
-22,
-13,
-4,
-25,
-23,
-24,
-45,
20,
10,
20,
23,
-45,
14,
-14,
-50,
-14,
56,
-28,
52,
-6,
32,
15,
1,
-47,
0,
42,
-28,
-9,
32,
-16,
5,
-12,
18,
29,
36,
4,
21,
24,
-34,
13,
1,
-10,
9,
-28,
13,
-55,
21,
-12,
17,
16,
11,
-3,
-18,
29,
-4,
-13,
27,
-2,
1,
22,
-35,
27,
10,
-61,
-15,
11,
22,
-8,
30,
3,
-16,
0,
12,
12,
-29,
5,
36,
29,
-5,
7,
-21,
-13,
-21,
-47,
29,
-8,
-9,
-22,
-52,
2,
45,
3,
6,
10,
-19,
-9,
48,
-38,
0,
28,
2,
12,
-14,
-8,
-29,
-7,
9,
6,
-7,
11,
29,
0,
-21,
-19,
-35,
21,
-34,
-25,
54,
-7,
-70,
37,
1,
8,
-11,
2,
-26,
-21,
-9,
14,
53,
6,
3,
-6,
-15,
48,
24,
-31,
-14,
12,
16,
20,
9,
-43,
-47,
-29,
-19,
39,
30,
-15,
24,
3,
6,
5,
-48,
-47,
-2,
-5,
25,
-16,
1,
6,
-2,
47,
-40,
-21,
33,
-40,
28,
-16,
-46,
-9,
20,
-33,
-6,
-4,
-22,
3,
0,
11,
31,
42,
-5,
6,
0,
39,
-44,
17,
-31,
-53,
-18,
-43,
16,
20,
53,
-57,
34,
-12,
15,
25,
-8,
-24,
28,
-24,
0,
-45,
-25,
-14,
56,
1,
0,
-34,
-15,
-22,
-48,
32,
2,
-26,
21,
-21,
-48,
-56,
-18,
5,
48,
-18,
-50,
21,
-37,
-4,
-7,
24,
0,
-4,
49,
10,
17,
-44,
4,
43,
19,
-27,
-15,
25,
29,
79,
-26,
36,
-10,
-5,
9,
-34,
28,
43,
-13,
40
] |
Graves, C. J.
The petitioner was regularly admitted to the office, and was an alderman defacto.
The respondents ejected him and now offer to justify it: 1st, on the ground that he lacked legal capacity to take the office; and 2d, on the ground that he subsequently disqualified himself by removing from the ward.
The legislative authority to try relator’s capacity to receive the office expired with the council that acknowledged his capacity and received him, and whatever as matter of fact’ and law may be true in regard to his having disqualified himself by removal from the ward, the question was not triable by the council, but only by a judicial tribunal; and the end of this proceeding, which is only to correct the wrong ■done by respondents in presuming to remove him, is not to be defeated by converting it into a trial of the abstract right.
The present remedy has no concern yvith the legality of relator’s title. It relates solely and exclusively to the right of respondents to pass upon it.
Campbell, J.
The decision of the common council upon the original admission of relator io the office of aider-man was under the charter conclusive upon all questions of qualification or election. It may be that within a reasonable time that council might for sufficient cause have granted a re-hearing — as was done in the Port Huron ease. Cooley v. Fitzgerald, 41 Mich. 2; Cooley v. Ashley, 43 Mich. 458. But this could not be done by any subsequent council, and the power to reconsider ended at least as early as the termination of the former council, if not earlier. All these questions are, I think, closed during the remainder of relator’s official term.
So far as declaring a vacancy is concerned I do not think it can be done in any case where the office is actually held by a person in by regular title and disputing the facts claimed to make him incompetent. No power to decide that a vacancy exists in such a case has been vested in the council, and I think relator is entitled to hold during his term. | [
71,
-37,
-13,
6,
1,
39,
4,
8,
1,
50,
19,
-37,
46,
8,
0,
1,
42,
17,
-29,
-5,
-12,
-16,
-29,
7,
-9,
-47,
-31,
-19,
-31,
-17,
5,
-30,
-20,
-4,
-6,
1,
-46,
-3,
32,
-3,
-5,
20,
-18,
-1,
-13,
34,
-1,
48,
-44,
-42,
17,
21,
-39,
59,
84,
15,
10,
-5,
17,
-32,
-38,
69,
-41,
5,
34,
22,
-20,
6,
33,
-14,
16,
-38,
-38,
-59,
5,
15,
13,
-32,
43,
26,
5,
3,
16,
-49,
0,
20,
15,
51,
-8,
-33,
-2,
-3,
20,
55,
-8,
11,
-22,
-11,
44,
-49,
-37,
7,
30,
-16,
-18,
-58,
-29,
15,
87,
-52,
17,
38,
34,
22,
14,
16,
-17,
-26,
23,
-1,
24,
-33,
-18,
4,
53,
-16,
-30,
9,
-44,
7,
-23,
4,
7,
-12,
22,
5,
25,
28,
49,
1,
19,
37,
28,
-28,
-23,
-1,
-22,
0,
-12,
-8,
14,
31,
30,
-13,
-25,
-23,
32,
-24,
86,
-3,
23,
15,
-31,
-5,
-17,
-5,
-9,
12,
23,
15,
14,
45,
0,
56,
-26,
-8,
-26,
23,
-10,
-33,
-21,
1,
12,
-9,
41,
-48,
28,
-51,
33,
-33,
9,
-4,
10,
-40,
40,
14,
-25,
59,
-37,
-13,
-26,
22,
-48,
48,
4,
16,
-11,
-32,
22,
48,
-31,
-9,
-34,
-73,
30,
-18,
24,
7,
15,
-2,
28,
-9,
15,
43,
-19,
14,
-24,
33,
14,
25,
10,
-23,
-20,
13,
23,
-13,
12,
62,
-8,
-19,
-21,
81,
49,
77,
-14,
-40,
29,
12,
-15,
4,
38,
-41,
47,
5,
-57,
-10,
-35,
9,
-15,
-63,
6,
-21,
12,
-17,
-24,
-27,
10,
64,
21,
-10,
-18,
47,
61,
-28,
-20,
23,
-25,
-27,
12,
-7,
-26,
13,
23,
33,
-94,
44,
-13,
-7,
-24,
-7,
-9,
-8,
-18,
45,
-17,
6,
23,
32,
29,
-25,
3,
39,
-16,
43,
1,
-6,
-21,
34,
25,
-1,
55,
-7,
-1,
90,
21,
-8,
-4,
38,
1,
-29,
13,
-4,
-2,
-73,
-98,
-11,
40,
-9,
2,
-71,
0,
-36,
-7,
9,
73,
50,
-11,
-6,
-50,
-20,
48,
-51,
-22,
-44,
31,
-15,
-28,
-52,
16,
21,
-22,
18,
-40,
9,
27,
-30,
-2,
-52,
10,
-60,
19,
-1,
-62,
-29,
24,
-26,
-33,
-12,
23,
-8,
29,
-24,
17,
8,
36,
-25,
7,
34,
-39,
13,
-9,
-10,
43,
-33,
10,
3,
-23,
-7,
-25,
-33,
-26,
41,
-51,
-14,
29,
14,
6,
27,
21,
6,
17,
26,
-29,
53,
1,
-11,
-57,
0,
-2,
57,
11,
98,
6,
-54,
26,
-45,
0,
-22,
28,
-6,
0,
-37,
10,
-40,
-24,
-1,
21,
18,
56,
7,
18,
-58,
0,
-29,
-3,
-20,
-16,
-32,
-65,
-8,
-35,
-53,
-40,
0,
-16,
-1,
-55,
29,
-19,
5,
-30,
34,
9,
-43,
52,
8,
6,
13,
41,
-17,
-11,
-57,
-19,
-11,
-5,
-47,
-26,
11,
3,
28,
-23,
-3,
-10,
24,
-38,
1,
-10,
2,
5,
16,
17,
28,
-3,
19,
-29,
1,
-6,
-35,
15,
-8,
-3,
39,
16,
27,
-11,
-1,
17,
-11,
-39,
32,
27,
85,
-31,
-41,
9,
-42,
-69,
-68,
16,
34,
-55,
-7,
-2,
69,
16,
11,
35,
-19,
-33,
-2,
23,
-43,
-17,
-42,
31,
53,
-32,
-7,
24,
21,
11,
-12,
-6,
-13,
20,
38,
16,
38,
-8,
-35,
-21,
64,
27,
43,
-31,
31,
-8,
34,
27,
42,
-30,
0,
-50,
20,
-16,
-28,
16,
-34,
5,
33,
-8,
17,
44,
19,
-8,
3,
-14,
-42,
41,
20,
42,
-42,
3,
26,
-3,
-23,
40,
-28,
45,
10,
-1,
21,
14,
-4,
10,
-53,
-38,
-25,
39,
-42,
-16,
-3,
-52,
-8,
-35,
7,
2,
39,
-29,
-7,
-34,
26,
6,
-6,
21,
23,
28,
-23,
23,
-7,
-22,
-1,
-16,
-16,
-67,
46,
-2,
32,
28,
23,
-15,
40,
5,
-32,
-25,
-109,
24,
-27,
18,
-11,
-18,
10,
-10,
-5,
-16,
-44,
4,
-23,
23,
24,
22,
-20,
8,
-10,
32,
77,
27,
53,
0,
0,
-7,
36,
6,
-9,
16,
-38,
-7,
14,
53,
1,
1,
-7,
19,
14,
6,
36,
-7,
-9,
-42,
-31,
34,
-6,
53,
-12,
4,
-31,
26,
-43,
-35,
37,
-30,
-17,
-43,
6,
20,
-7,
-41,
-10,
4,
7,
21,
-8,
21,
-56,
46,
14,
20,
-16,
53,
30,
-34,
-8,
31,
6,
-22,
22,
27,
-11,
-19,
-37,
37,
-7,
-23,
32,
-11,
-12,
-3,
-40,
10,
41,
4,
-24,
-42,
0,
22,
44,
-9,
-23,
22,
-63,
-4,
-38,
19,
-70,
-27,
-19,
41,
5,
31,
44,
-20,
24,
11,
11,
26,
14,
8,
-26,
-43,
-3,
0,
-40,
-59,
-9,
4,
18,
-31,
3,
-33,
-16,
11,
-31,
-2,
4,
-4,
8,
-1,
6,
3,
10,
1,
6,
17,
-22,
19,
30,
0,
19,
21,
5,
-6,
-23,
-23,
26,
-46,
-27,
-23,
14,
-36,
2,
35,
-9,
40,
17,
-36,
-6,
21,
-80,
29,
29,
-16,
9,
-69,
10,
5,
43,
-36,
53,
6,
-21,
6,
-22,
-30,
17,
-30,
-36,
33,
41,
-24,
-36,
-5,
-42,
0,
-42,
-31,
31,
36,
28,
19,
74,
4,
-3,
-12,
69,
6,
-57,
-35,
-7,
33,
2,
3,
-7,
-2,
-6,
-47,
-17,
-24,
15,
-28,
13,
-17,
29,
-14,
-14,
-9,
-6,
29,
-53,
33,
-31,
1,
51,
50,
-43,
9,
-28,
-14,
-10,
22,
-7,
32,
-28,
4,
7,
0,
6,
-21,
-11,
-38,
-43,
-39,
43,
1,
3,
9,
12,
28,
-40,
-31,
74,
38,
50,
-38,
46,
-6,
16,
35,
37,
-51,
15,
-10,
0,
5,
-5,
-18,
-42,
-11,
-45,
17,
-14,
-2,
-12,
-15,
-33,
34,
-34,
-28,
11,
-19,
6,
3,
15,
-23,
-8,
-12,
-70,
18,
5,
-36,
-16,
-8,
7,
0,
-8,
70,
15,
-33,
22,
-70,
-21,
-8,
-45,
-1,
48,
-17,
18,
-10,
16,
-11,
11,
-44,
37,
61,
3,
6,
32,
-19,
-8,
-45,
26,
42,
20,
-9,
47,
0,
37,
-32,
-33,
-4,
40,
16,
-4,
-13,
71,
15,
13,
0,
-64,
-37,
50,
12,
10,
-14,
12,
3,
0,
27,
-15,
-47,
-84,
12,
32,
31,
-32,
-10,
-4,
-56,
-6,
46,
-34,
49,
34,
-55,
-11,
4,
-5,
24,
7,
14,
-14,
21,
-13,
61,
13,
-24,
9,
-13,
1,
-38,
-15,
-22,
-45,
-17,
-50
] |
Campbell, J.
Ilall brings error from a judgment on conviction for the murder of-his wife. The case was twice tried — first in June, 1881, and afterwards in October, 1881,— the first jury having disagreed. Ye find in the outset a defect which does not seem to have been noticed by the parties, but which, under our advisory duty in criminal cases-under the statute, we cannot very well overlook -in passing' upon the exceptions. The information, which conforms to-the statute and is in the usual form, merely charges murder,, without charging in what way it was committed or in what degree. Under the statute the jury must find' the degree of’ the offense, and it cannot be treated as murder in the first degree unless expressly so found. Murder by poison, under' the statute, is always murder in the first degree, and the-jury should have been so charged. They were, however,, by this charge left at liberty to find the degree, and did not find it to be the first degree. The sentence, however,, expressly treated it as murder in the first degree, not only by so naming it, but also by inflicting the statutory punishment for that crime. If this error had been assigned, we might have been compelled to determine to what extent the-proceedings could be opened or reversed. As there are other defects which must lead to a new trial, we need not-now go further in this discussion beyond the suggestion that this is only one of several indications that the trial lacked some of the elements of a calm judicial proceeding,. and that matters appear to have been lost sight of which the rules governing the administration of justice required those conducting the prosecution to keep in mind.
The first of these, and one which in several different ways was brought to the attention of the court below, but ruled against, was the rule which requires the corpus delicti to be shown, before any other testimony is directed against the prisoner. In many and perhaps in most cases the order of proof is not very essential. But in cases of homicide, and in others where justice demands it, the prosecution should not be allowed to proceed further until the death and its -character shall have been shown, as far as the testimony can be separately given, and especially so far as can be shown from the post mortem examinations. Under our system of informations the prosecution must always have knowledge, in advance of the trial, concerning the case intended to be made out, and there can be no good reason for pursuing the -course which was allowed to be taken here. Instead of showing in the outset the death of Mrs. Hall, the examinations of her remains and their several analyses, and the medical opinions, indicating or not indicating death by poison, the first testimony introduced was for the only and obvious purpose of creating a prejudice against the accused by raising suspicions — which this particular testimony was not legally sufficient to establish — that he had been at some former period intimate with another woman. The testimony did not tend to prove any lack of harmony or kindness between the prisoner and his wife before her death; but had it done so, it was improper to show it until the evidence that she had been poisoned and died from poison had been introduced. All the malice imaginable is no proof in itself tending to show that death was caused by crime. "When there is legal evidence leading to the belief that homicide has been committed, the motive of the criminal becomes important, and the relations of parties may therefore become relevant. This difficulty was not confined to the question of the order of proof, for in what was done in charging and in refusing to charge, the jury did not receive that careful instruction which the circumstances called for, against allowing the crime itself to be presumed or to be ascertained by any but distinct and adequate proof.
Before referring to the more definite defects in the proceedings at the trial, some notice must be taken of the preliminary proceedings.
We have not sufficient facts before us to render it proper to say whether the venue should have been changed on .the* showing made, which is not brought up with the record. But the proceedings to summon jurors were, we think, in violation of the jury law of 1877. That law,' in order to-prevent unfairness or inequality in the distribution of jurors, required the names of jurors from each precinct to be kept in separate parcels, and one name to be drawn from each, before a second name should be drawn from-any, and so successively in like manner however many jurors should be drawn. Laws 1877, pp. 113, 114. There is only one case in which a different rule is permitted. It is provided by section 32 (amending Comp. L. § 6001) that when grand or petit jurors have not been summoned, or a sufficient number of qualified jurors shall fail to appear, the court may cause a sufficient number to be summoned forthwith, and may for the purpose of obtaining a jury or talesmen near the county seat, direct from -which township or supervisor' district such jurors shall be drawn. The evident object of this is to enable the court to call neighboring jurors when the pressure of business will not allow time to summon them from the county at large. This section before its-amendment left it in the power of the court to allow the sheriff to summon such jurors as he chose, or to have jurors-drawn from the county at large. Its object was explained in People v. Jones 24 Mich. 215, as designed to meet the-* exigencies of the term, and not of particular causes. In the present case the jury was ordered to be drawn from elevens specified townships, (out of the 25 townships, and such other supervisor districts as existed in Pontiac,) more than* three? weeks before the time of their appearance, and therefore? -with a much longer interval than that allowed for summon ing the ordinary panel for á term. The order does not purport to be made for the purpose of getting jurors near the county seat, but on the contrary does not require any jurors to be drawn either from the city or township of Pontiac, nor from the four adjacent towns lying south, south-west, west, and north-west, — while the towns actually selected included six towns separated from Pontiac township by entire intervening tiers of towns, and distant from six to over fifteen miles, at the nearest point of contact. The order excluded the entire vicinage of the alleged offence, not only leaving out the town of Springfield, but every one of the eight towns surrounding it, two of which border or corner on Pontiac. The order was not made by the judge of his own motion for general purposes, but on the suggestion of the prosecuting attorney for this particular case, in which it is entitled. The jury was therefore neither a jury of the vicinage, nor a jury of the county at large, nor one near the county seat, nor one desired by the judge himself for the general purposes of the term. It was therefore not sanctioned by law.
The defendant before the testimony was put in requested that the witnesses might be examined separately and not in presence of each other, but his request was denied. There is no difference- of opinion among the authorities on the point that, such a request, seasonably made, should not' be. refused. There is some difference as to wlitther such a refusal, standing alone, should necessarily be held illegal so as to require a reversal. Without going so far, inasmuch as we may dispose of the case on the other grounds, wo need only say that there is nothing in this record which tends to show that the request was not a proper one to be granted.
The court allowed the names of several witnesses to be added to the information during the trial, under objection, without any showing that they were not known earlier and in time to give defendant notice in season to anticipate their presence before trial. The statute is explicit that this shall be done before trial where witnesses are known. § 7938. This is not a mere formality; and wherever it has been provided for by statute it lias been treated as a substantial right. Reg. v. Frost 9 C. & P. 147; Rex v. Lord Gordon, 2 Doug. 591. Two of these witnesses were the chemists who were employed by the prosecution to make an analysis of portions of the body of the deceased. Others of them were called to testify concerning the preparations for making it. One was called on to testify to alleged conversations with defendant more than a month before the trial.
It appeared by the testimony of Drs. Prescott and Duffield that they were employed by the prosecution about three months before the second trial, and it appeared further that their testimony was the chief testimony, and practically the only testimony tending to show arsenic in the body. The others were of less consequence.
So far as Hickey is concerned it- appeared by his own cross-examination that he was confined in jail for the felony of breaking and stealing $500 from a safe, and had served a term in State’s prison for a previous felony several years before. From a careful examination of the record we think it at least highly probable that the conviction was had on this man’s testimony. It is very evident that if the defendant had been able to hunt up the history of such a witness, the search would have been important.
In regard to the chemists the facts show that on the first trial the testimony failed to .convict, and that the analysis which was made previously discovered no poison. After the failure of the first trial the body was examined again, being found in another place under very suspicious circumstances, with no evidence except that of Hickey distinctly bringing the removal home to defendant. There was testimony from the medical witnesses having a tendency to show that the poison last found might have been put in the body after death; and there were facts showing bad blood between defendant and some of his neighbors who were somewhat zealous against him.' Practically the case on the second trial was a new case, and the defendant was not informed of the witnesses to it until the trial began. This was an unfair suppression, in contravention of law.
We think it was error to prevent witnesses from answering questions as to conduct of the prosecution in seeking to induce them to suppress testimony or volunteer improper testimony not admissible and not asked for. There is no more reason for exempting the prosecution than the defence from scrutiny concerning tampering with witnesses.
There were several questions answered by medical experts upon theories put to them which were contrary to the positive and uncontradicted facts. Such questions were improper and misleading.
Some other rulings might be referred to, but we do not think it important to dwell upon them, except as to some refusals to charge.
A witness Clifford was called ostensibly to show that Ilall was concerned in the removal of his wife’s body from the grave-yard. Tie stated that Ilall did not know it was to be put where it was found, but to a series of questions concerning Hall’s complicity in it, he refused to answer on the ground that it might criminate him. The court refused to tell the jury they had no right to infer anything against Ilall from Clifford’s silence. This was clearly wrong. Clifford had not testified to any fact whatever indicating that he or any other person named either removed the body or had any part in it. He refused to answer at all beyond the single answer that Hall did not know where it was to be placed. If moved without Hall’s consent it would have been a crime. If otherwise it might or might not be, according to its purpose. If the silence of a witness can be treated as evidence against a party who cannot compel him to answer, it would not be difficult to make out a case against any one on mere insinuations. It was the duty of the court to caution the jury against this, but this was not only refused but that removal was dwelt on far enough to lead them to regard it as significant, which rendered the caution itself more necessary.
We think also that it would have been highly proper that the court should, when requested, have called the attention of the jury to Hickey’s position as affecting his credit. Formerly he could not have been sworn at all. The statute did not abrogate entirely the effect of conviction of an infamous crime on a witness, but still allows it to be shown as a distinct fact bearing on his credit. Comp. L. § 5966.
¥e observe that resort was had to reading medical books to tlie jury, the record not showing, however, what matters were thus laid before them. If this was anything it was evidence, and probably evidenbe which was used with some effect. The practice is not permissible. Scientific or expert testimony must be given by living witnesses who can be cross-examined concerning their means of knowledge and can explain in language open to general comprehension what is necessary for the jury to know. The only legal reason for allowing the evidence of -opinions is found in the presumption that an ordinary juryman or other person without special knowledge could not understand the bearing of facts that need interpretation. Medical books are not addressed to common readers, but require particular knowledge to understand them. Every one knows the inability of ordinary persons to understand or discriminate between symptoms or groups of symptoms, which cannot always be described, to those who have not seen them, and which with slight changes and combinations mean something very different from what they mean in other cases. The cases must be very rare in which any but an educated physician could understand detached passages at all, or know how much credit was due to either the author in general or to particular pai’ts of his book. If jurors could be safely trusted with the interpretation of such books, it is hard to see on what principal living witnesses would be required. Scientific men are supposed to be able from their study and experience to give'the general results accepted by the scientific world, and the extent of their knowledge is tested by their personal examination. But the continued changes of view brought about by new discoveries in most matters of science, and the necessary assumption by scientific writers of some technical knowledge in their readers, render the use of such works before juries— especially in detached portions and selected passages — not only misleading but dangerous. The weight of authority as well as of reason is against their reception.
While we feel it our duty to direct a reversal and a new trial, if' the prosecuting authorities think it proper to have one, we think the case is not of such a character that the prisoner should be deprived of bail.
The judgment must be reversed and the prisoner remanded to the custody of the sheriff of Oakland county, with the right at any time of being let to bail in the sum of $3000.
Cooley and Marston, JJ. concurred. | [
-8,
-51,
29,
-99,
-26,
-36,
5,
-47,
-19,
65,
32,
7,
27,
2,
0,
-10,
-16,
-1,
29,
16,
15,
6,
-62,
4,
-51,
5,
32,
-2,
22,
-9,
28,
20,
-38,
26,
20,
-19,
7,
-17,
28,
-9,
16,
38,
-2,
-35,
-13,
11,
23,
-56,
4,
-46,
-3,
-47,
58,
14,
-19,
-26,
15,
56,
-4,
50,
22,
-19,
-43,
-23,
-54,
-21,
6,
-28,
-3,
-34,
-31,
7,
-6,
-6,
-39,
-5,
-29,
-9,
-11,
-12,
-43,
-21,
-13,
11,
37,
4,
-42,
-11,
-23,
-15,
11,
-1,
-4,
19,
-17,
-2,
6,
9,
-5,
10,
32,
36,
7,
35,
-27,
-16,
-83,
10,
9,
7,
32,
31,
34,
-36,
8,
-52,
-10,
-37,
-86,
-9,
39,
25,
72,
7,
-9,
-21,
-15,
-8,
20,
-51,
-25,
-5,
-13,
-31,
-14,
5,
11,
6,
-6,
-17,
-33,
1,
18,
1,
42,
24,
-19,
-17,
-49,
7,
-10,
-22,
22,
-3,
5,
-53,
10,
-59,
-30,
-5,
-5,
-8,
1,
-17,
4,
-26,
-39,
-49,
-12,
-31,
-20,
54,
0,
69,
62,
10,
0,
-73,
4,
-12,
-5,
3,
19,
-11,
20,
-7,
-50,
8,
-3,
-9,
-16,
37,
-31,
-27,
22,
9,
0,
35,
69,
-23,
-23,
-22,
-22,
23,
-22,
4,
-1,
13,
7,
-10,
-44,
-31,
-47,
36,
-3,
33,
-61,
-38,
-22,
7,
-83,
13,
27,
-15,
5,
-40,
-11,
60,
-17,
30,
12,
37,
-22,
-96,
-11,
-49,
-12,
19,
-3,
-38,
-6,
-14,
28,
-5,
64,
35,
55,
16,
-74,
26,
57,
19,
49,
-6,
-18,
-28,
21,
-31,
6,
-15,
-2,
36,
37,
29,
-64,
-11,
36,
0,
-32,
-14,
-1,
-39,
0,
64,
-29,
-30,
13,
28,
8,
3,
15,
25,
-9,
19,
9,
-33,
-83,
7,
-26,
55,
37,
6,
-35,
20,
30,
55,
62,
8,
-34,
-24,
44,
-4,
27,
-1,
28,
0,
4,
-12,
-25,
-45,
-15,
5,
-24,
22,
46,
33,
-31,
-26,
39,
-11,
-20,
-14,
16,
-6,
8,
2,
29,
-43,
-16,
4,
-46,
24,
23,
16,
13,
15,
-6,
61,
0,
-22,
-8,
-36,
-72,
9,
-25,
8,
10,
11,
-61,
-26,
3,
32,
0,
5,
0,
-6,
5,
-42,
51,
-27,
42,
-33,
-4,
37,
19,
-3,
10,
-57,
44,
60,
44,
18,
-18,
-9,
-22,
30,
37,
19,
30,
8,
-11,
32,
10,
-18,
-13,
37,
-3,
-29,
-20,
35,
-23,
19,
-9,
-27,
40,
20,
3,
12,
15,
-32,
-22,
36,
14,
-61,
-27,
-48,
-44,
2,
-37,
-14,
24,
34,
73,
-9,
25,
-33,
-17,
-58,
35,
-49,
41,
-12,
61,
7,
-5,
-7,
-1,
44,
1,
-66,
17,
2,
21,
-44,
10,
1,
-20,
73,
62,
-17,
-67,
-12,
-32,
17,
-25,
-45,
34,
22,
41,
18,
14,
-6,
9,
-50,
17,
22,
13,
0,
14,
-12,
11,
-23,
-31,
12,
29,
-3,
-34,
-37,
35,
-2,
-8,
-42,
25,
-2,
8,
9,
27,
49,
30,
-25,
26,
0,
5,
7,
-3,
0,
-23,
-46,
3,
-36,
13,
-19,
-20,
-34,
-51,
17,
29,
-11,
-27,
1,
-35,
0,
-5,
-48,
10,
4,
52,
-10,
66,
58,
-7,
-23,
25,
-51,
-32,
-33,
24,
-14,
22,
5,
17,
-34,
-37,
39,
-48,
14,
19,
-22,
-22,
-34,
23,
16,
0,
14,
70,
-3,
-33,
-13,
6,
-42,
-14,
13,
80,
1,
-33,
33,
-4,
-15,
-21,
17,
1,
25,
34,
-14,
-56,
8,
11,
3,
14,
-12,
4,
-20,
-9,
16,
33,
4,
18,
13,
32,
-11,
59,
21,
-17,
46,
-38,
8,
5,
45,
-2,
40,
5,
2,
-12,
22,
43,
2,
-1,
6,
0,
14,
-27,
66,
25,
14,
-23,
-12,
31,
-21,
9,
-2,
-51,
16,
12,
38,
15,
16,
51,
-13,
-4,
-40,
6,
-13,
4,
11,
52,
44,
-45,
-51,
-58,
36,
-53,
-18,
-55,
-31,
39,
-42,
11,
1,
5,
-5,
-4,
-16,
-29,
25,
-77,
28,
14,
-5,
-29,
-16,
-6,
-9,
-13,
31,
38,
39,
-38,
51,
35,
-41,
7,
26,
-41,
-46,
-28,
5,
-8,
39,
8,
29,
22,
18,
-22,
27,
-10,
73,
-19,
-15,
-18,
-30,
8,
-15,
3,
-74,
-79,
17,
-14,
45,
15,
-50,
22,
-20,
43,
-27,
19,
7,
-44,
33,
22,
16,
-22,
9,
12,
3,
6,
-26,
40,
-21,
-10,
-18,
66,
-26,
5,
48,
14,
-23,
6,
-38,
-51,
-75,
-7,
21,
10,
-41,
-19,
-35,
-25,
-19,
-12,
29,
36,
-48,
53,
-3,
-40,
22,
-1,
38,
33,
0,
49,
-81,
3,
20,
24,
47,
-6,
14,
33,
18,
-43,
-7,
-27,
-38,
6,
-46,
13,
-50,
12,
-26,
32,
68,
43,
-39,
-38,
24,
44,
-13,
4,
-48,
14,
16,
40,
-32,
-17,
0,
-17,
35,
2,
18,
-4,
-38,
40,
2,
-48,
71,
-40,
-19,
22,
6,
15,
16,
-6,
-24,
20,
-30,
-32,
9,
-4,
5,
17,
-13,
-8,
49,
-4,
-24,
-14,
-19,
-46,
39,
28,
-12,
16,
-27,
-17,
41,
9,
22,
-26,
31,
58,
35,
-32,
-14,
-19,
-1,
4,
-40,
23,
-14,
-13,
34,
-2,
2,
34,
-19,
0,
-55,
-14,
27,
-11,
3,
-22,
20,
63,
-9,
-36,
0,
-1,
7,
-70,
24,
28,
29,
1,
3,
1,
42,
-8,
35,
22,
29,
-24,
-32,
-41,
-7,
3,
-15,
11,
38,
-29,
-16,
25,
-56,
7,
-2,
14,
38,
8,
-73,
-41,
-14,
0,
34,
-46,
59,
-50,
-22,
-20,
69,
4,
-10,
35,
38,
3,
-19,
-25,
-25,
2,
14,
-6,
46,
44,
11,
0,
0,
9,
30,
16,
2,
-29,
10,
7,
23,
72,
-29,
5,
4,
-5,
8,
-16,
-29,
-28,
17,
25,
55,
-30,
-12,
42,
-16,
52,
18,
30,
42,
2,
5,
8,
-11,
-8,
19,
12,
23,
24,
-62,
0,
-2,
-16,
-54,
-8,
-74,
36,
-27,
-20,
-10,
-15,
15,
-12,
1,
-12,
-4,
-51,
-48,
-13,
-6,
-26,
-3,
-45,
-20,
-16,
-13,
-51,
24,
-14,
-8,
22,
13,
-6,
15,
-9,
-7,
11,
-25,
-2,
-50,
40,
-3,
30,
-17,
18,
-9,
-1,
-21,
-4,
-7,
2,
-28,
17,
-30,
31,
-27,
-12,
11,
6,
53,
-32,
14,
-4,
15,
22,
-1,
12,
18,
22,
26,
7,
-58,
-18,
66,
3,
-17,
-35,
6,
6,
34,
-28,
25,
-35,
23,
-34,
-9,
37,
71,
-16,
15
] |
Graves, C. J.
The circuit court reversed the judgment of a justice of the peace entered on a verdict in Shulter’s favor, and he charges error. The action was on the common counts and the plea was the general issue, with notice of set-off and of recoupment. Both parties were at the trial and the defendant took part but offered no evidence. He relied on certain objections to the plaintiff’s testimony, and the circuit court made them the ground of reversal. The object of the action was to get pay for services performed for the defendant by the plaintiff and his wife under a special agreement to work for specific wages and on the terms, among others, of being furnished with “ good farmer’s living.” No precise time was fixed, but the service was to continue as long as the parties were agreed; and the plaintiff began in February and kept on till June, at which time he became dissatisfied and quit. He complained that the “living” was wholly insufficient and unsuitable.
The defendant objected to the evidence tending to show the agreement and the service and its value, and he -also objected to any showing concerning the quality and amount of “ living” furnished, and it was for admitting this evidence that the court below reversed the judgment.
The evidence complained of was competent. It tended to show the service and the circumstances under which it was rendered and received. That the defendant got the benefit of plaintiffs service under an arrangement which the defendant violated, and that the breach was of such character as to justify the plaintiff in quitting and to remit him to proof of the actual value. The evidence was admissible, and it was for the jury to pass on its weight. If the defendant felt that the testimony was incorrect he should liave met it by other proof, or if he believed the jury misjudged in passing on it he should have appealed. There were no points of^law to upset the recovery.
The judgment of the circuit court must be reversed and that of the justice affirmed, and the plaintiff will recover his costs of this court and of the circuit court.
Campbell and Cooley, J,T. concurred. | [
-1,
16,
-18,
-26,
-24,
-7,
12,
-33,
-36,
67,
31,
-6,
45,
34,
3,
-73,
-4,
-53,
-1,
5,
-23,
-13,
32,
42,
-6,
-15,
-14,
-8,
-27,
4,
16,
12,
-9,
4,
-1,
-36,
-34,
16,
2,
-35,
6,
-8,
-24,
-20,
9,
4,
-6,
-44,
6,
2,
4,
-14,
-8,
-25,
15,
-6,
-45,
25,
-32,
-62,
-18,
1,
-26,
0,
22,
13,
-54,
10,
-6,
0,
-51,
-26,
22,
-26,
6,
-28,
-3,
-29,
-17,
-20,
1,
-29,
16,
6,
-43,
28,
43,
-13,
-16,
0,
15,
74,
9,
-10,
-12,
-13,
55,
6,
36,
27,
-25,
-34,
0,
44,
-69,
2,
-27,
-19,
-20,
-1,
29,
0,
45,
-43,
-18,
28,
-8,
-34,
-9,
-42,
35,
6,
43,
-2,
-18,
-3,
11,
-31,
-57,
-7,
9,
14,
-13,
-35,
7,
-22,
-4,
-28,
-55,
-6,
119,
-2,
-8,
-22,
0,
-35,
19,
31,
-62,
8,
-20,
-6,
1,
12,
70,
-25,
11,
-47,
19,
-45,
49,
64,
-32,
-17,
22,
-1,
7,
-23,
11,
-29,
-11,
24,
19,
0,
17,
5,
27,
-41,
-8,
-9,
-35,
28,
8,
-8,
43,
-31,
21,
-13,
-30,
-21,
-12,
20,
12,
-27,
38,
-2,
-8,
7,
37,
9,
-26,
-26,
-19,
24,
-23,
7,
58,
-2,
-1,
13,
-51,
-27,
-29,
-32,
-3,
31,
-14,
16,
0,
-23,
-23,
22,
-52,
4,
-71,
-24,
-9,
29,
48,
6,
-33,
5,
46,
-22,
33,
-7,
-24,
-25,
-14,
-13,
-12,
3,
1,
-1,
-28,
10,
22,
28,
-27,
35,
-34,
-4,
13,
17,
-19,
25,
5,
0,
-52,
0,
42,
45,
32,
17,
13,
-6,
7,
20,
17,
22,
19,
-28,
15,
21,
-3,
3,
-48,
9,
-25,
-30,
18,
7,
-11,
-14,
-14,
4,
-12,
68,
31,
45,
38,
-15,
-31,
39,
21,
7,
15,
37,
1,
-34,
-16,
-24,
-7,
23,
22,
3,
-25,
9,
-39,
-6,
18,
-30,
-1,
4,
53,
12,
-35,
-29,
15,
-40,
-24,
-35,
15,
20,
9,
8,
30,
-31,
-27,
-10,
-6,
24,
23,
3,
34,
-44,
-13,
30,
-8,
-20,
11,
17,
-60,
-9,
12,
36,
43,
6,
13,
-3,
-10,
-24,
-19,
15,
-4,
-29,
23,
-62,
15,
-3,
4,
-21,
-32,
-20,
6,
21,
7,
-22,
47,
18,
22,
4,
16,
-43,
-19,
28,
-18,
-53,
4,
43,
9,
9,
-24,
-16,
10,
-13,
-38,
-9,
-47,
11,
-20,
28,
18,
7,
4,
20,
-9,
-47,
-12,
-11,
5,
-8,
11,
-3,
-16,
-19,
-65,
-54,
-29,
6,
7,
-18,
5,
-9,
45,
-15,
4,
11,
46,
19,
81,
-4,
-2,
17,
4,
-17,
31,
-2,
32,
-15,
-11,
9,
2,
-56,
42,
28,
-21,
5,
-48,
33,
-24,
0,
-17,
-13,
-6,
-39,
0,
14,
16,
-4,
27,
18,
55,
9,
13,
5,
30,
-36,
23,
-31,
38,
2,
-52,
-13,
11,
-3,
20,
35,
-40,
7,
-4,
7,
26,
-28,
-52,
9,
-59,
-47,
18,
18,
68,
13,
-7,
-21,
23,
9,
-27,
-18,
-16,
-12,
-5,
-3,
-34,
-14,
26,
-7,
-39,
8,
-31,
46,
-8,
26,
33,
-91,
-2,
18,
-13,
-63,
33,
38,
35,
24,
16,
19,
44,
9,
-8,
-9,
12,
15,
17,
-1,
-66,
-30,
6,
19,
-34,
70,
4,
-41,
20,
6,
-5,
-18,
-5,
-26,
-17,
-13,
9,
-14,
-54,
23,
39,
20,
-27,
-9,
-35,
-15,
-7,
33,
39,
17,
12,
-2,
-60,
3,
14,
17,
63,
-57,
-6,
0,
-22,
15,
54,
2,
19,
-16,
-17,
28,
38,
-33,
-42,
30,
-9,
4,
-31,
7,
-3,
-36,
-51,
27,
25,
-75,
11,
4,
16,
14,
18,
29,
-27,
28,
4,
31,
-49,
-71,
-11,
-64,
16,
45,
-22,
42,
-54,
44,
21,
7,
-2,
49,
-41,
11,
73,
2,
-12,
-22,
42,
32,
6,
3,
-44,
62,
10,
27,
-15,
-14,
17,
-33,
-8,
11,
-27,
-19,
22,
-18,
4,
20,
-60,
27,
11,
29,
-58,
-9,
10,
21,
-10,
-20,
15,
0,
-14,
16,
-1,
-8,
-5,
78,
9,
-9,
15,
12,
41,
-14,
-31,
-11,
5,
-8,
-21,
45,
1,
33,
-20,
1,
15,
-20,
48,
-63,
74,
10,
17,
-22,
21,
9,
-38,
20,
-5,
-16,
26,
21,
-47,
-15,
13,
39,
21,
-32,
13,
32,
-28,
6,
-7,
-13,
31,
9,
-21,
-51,
30,
-40,
11,
-3,
11,
-14,
19,
0,
-5,
3,
-30,
-4,
-9,
6,
9,
-7,
6,
18,
7,
23,
38,
-16,
0,
-20,
-5,
-9,
19,
-19,
27,
-41,
21,
22,
25,
24,
-28,
28,
-7,
-2,
-58,
-48,
3,
-8,
-6,
6,
-12,
15,
-6,
55,
-32,
-10,
54,
15,
6,
-36,
13,
46,
52,
-13,
-38,
-12,
9,
19,
-19,
-14,
1,
7,
35,
-26,
-29,
-18,
-39,
-1,
14,
-29,
11,
40,
21,
-15,
-16,
-17,
33,
5,
-23,
-32,
-23,
-51,
29,
-32,
-16,
5,
18,
-90,
-24,
-7,
-22,
-11,
1,
10,
-5,
-4,
-2,
30,
21,
19,
13,
40,
5,
-7,
-7,
-15,
8,
-8,
25,
-4,
28,
-34,
-8,
23,
-36,
27,
2,
51,
4,
-11,
35,
25,
-8,
-20,
-72,
34,
18,
-50,
2,
46,
12,
2,
1,
33,
-27,
-37,
-47,
5,
-3,
10,
15,
26,
23,
26,
-44,
35,
27,
-17,
27,
-25,
-15,
5,
-11,
-53,
33,
-11,
-12,
1,
-19,
37,
45,
-12,
-18,
28,
-8,
-56,
4,
30,
-19,
10,
-42,
30,
13,
-8,
27,
15,
-34,
-27,
-41,
45,
3,
-27,
-3,
-38,
-23,
52,
-15,
-13,
38,
3,
23,
-25,
-55,
-7,
24,
-15,
27,
34,
1,
3,
15,
-45,
-6,
2,
-1,
31,
-20,
-60,
-54,
-15,
41,
46,
-15,
3,
15,
-7,
-8,
23,
7,
-2,
12,
-19,
28,
-22,
8,
26,
-4,
43,
7,
-20,
8,
11,
20,
0,
2,
-10,
1,
-41,
0,
-13,
-30,
-20,
-26,
65,
10,
15,
-34,
44,
-12,
31,
8,
6,
-43,
-17,
18,
9,
26,
9,
36,
11,
12,
-8,
5,
-25,
-59,
-9,
78,
-33,
0,
-58,
-9,
-13,
26,
0,
-16,
24,
4,
-6,
-60,
28,
-21,
-16,
-20,
-34,
-9,
14,
31,
10,
54,
25,
-43,
-12,
-29,
0,
4,
19,
-22,
-14,
6,
16,
0,
-30,
35,
73,
-8,
-34,
0,
27,
34,
74,
-59,
53,
-42,
-5,
-39,
-23,
36,
31,
-6,
48
] |
Campbell, J.
Plaintiff sued the two Hibbards, Peter Graff and Covode as milkers, and Hinsdale and Philip Graff as endorsers of a promissory note for $5000 made and discounted in December, 1879, and payable April 1, 1880, when it was dishonored. The only questions which became material related to the legal identity of the makers, who signed as “ Hibbard & Graff.”
Upon certain facts there was no dispute. The two Hibbards -and Peter Graff for several years did business at Grand Kapids under the name of Hibbard & Graff, and in that name ran two flouring mills, called the Talley City mills and the Crescent mills. The Talley City mill was a rented building and had only been occupied about a year.
On January 27, 1879, Hibbard & Graff formed a partnership with Covode to run the Talley City mill, that firm to own three-fourths and Covode one-fourth interest. The business was to be entirely distinct from the Crescent mill business, in which Covode was to have no interest, although the business so far as practicable was to be done in the Crescent mill office, but the accounts were to be kept separate. Different book-keepers kept the books, and the Talley City mill office was in a different room from the other. The name of the new firm was to be the same as the old one, Hibbard & Graff.
After the new firm was organized letter heads were printed which at the' top contained the names of all four. Beneath these names appeared the name Hibbard & Graff, as proprietors of the two mills. These appear to have been used indiscriminately. The Talley Oity mill kept no bank account and did no bank business, but borrowed, when necessary, of the Orescent mill, and was charged for such advances and credited with money and other counter credits-furnished by itself to the other. No notes were issued by the Talley Oity mills in the course of their business, and all moneys received on loan discounts were paid into the Ores-cent mills where an account was kept of advances made to-the Talley Oity mills as with any other individual debtor.
The note in suit is one of two $5000 notes executed by Wellington Hibbard while Covode was absent in Europe, under the. name of Hibbard & Graff, not for the benefit of the firm, but to use in his and Philip Graff’s outside gambling wheat speculations, which seem to have been destroying the means of the business. The money was obtained as claimed by plaintiff under pretense that it was wanted for actually contemplated wheat purchases for milling business. The question is, if this was so, which firm was the maker in the eye of the law ? The jury found that the new firm was not the maker. The errors assigned relate to the charge of the court, given or refused, on various parts of the case.
The court actually charged that Covode would not be liable merely because he was a partner in the Talley City business, if the loan was negotiated as part of the business of the Orescent mills, but that presumptively a note might be made by a partner which would bind the firm for which, he made it, if taken without knowledge in the bank, on reasonable grounds of inquiry, that it was unauthorized. Also that Covode might be bound by allowing himself to be held out as a member of tbe firm purporting to act, if faith was given in the discount to his being a partner.
It was charged that if credit was given exclusively to the other members of the firm and not to Covode, he would not .be bound unless by subsequent ratification, if the money was not negotiated for the business of the Yalley City mill. But on the other hand if the bank only knew of a firm which it supposed to be composed of the four, and made the loan on the credit of that firm, then all would be bound if the transaction was in good faith; and further, that although Covode was not a member of the Crescent mills firm, he would be bound if he had allowed himself to be held out as a member of a firm operating both mills, if the bank relied upon that, in good faith. The letter heads were held to authorize the jury to draw such an inference if they thought them calculated to create such an impression, and if acted on by the bank as before mentioned. And it was also held that unless the bank had reason to believe to the contrary it could rely on the representations of Mr. Hibbard concerning the purpose of the loan, and if informed it was for the firm of four, credit should be presumed to have been given to the four.
The jury, in answer to specific requests, found that Covode was not known to plaintiff, and that exclusive credit was given to the other persons as a firm. They also found that the note was given by Wellington Hibbard to obtain money to speculate in wheat margins on his own account, and that this was a gambling transaction.
It is assigned as error that these findings are not supported by evidence.
Error is also assigned on the charges bearing on the effect of giving exclusive credit to others than Covode and on his liability in case he was not actually a partner of the firm relied on. Also to so much of the charge as held that if the money was lent with notice that it was for business beyond the scope of the partnership business and for different parties, the bank might be affected by the fraud without absolute knowledge of it.
Error is also alleged on the refusal of the court to make several charges substantially as follows: First, that when two firms in one city of the same name have some members in common, and a person who is a member of both issues a note which is discounted in good faith without information as to which firm issued it, the holder may elect which firm he will hold. Second, a charge was asked to the same effect as applied specifically to the firms in question and Mr. Covode’s liability. Third, that in such case the partners were themselves responsible for the hardship which they might have avoided by using different firm names. Fourth, that writing the letters which were sent in regard to obtaining the discounts, on the letter heads before referred to, was such a holding out of Oovode as a partner in both mills as, if relied on in good faith, would render him liable. And -fifth, that there was no evidence that the bank officers knew it was for an improper purpose.
The special findings of the jury, if based on testimony, render the fourth and fifth requests just named unimportant. It is distinctly found that credit was not given to Oovode as a partner and was given only to the others. It is not claimed, however, and the court below did not hold, that the use of the letter heads in question would ’not have bound him if credit was actually given in reliance on them as showing one firm for both mills. But we are not satisfied that the jury had not testimony enough to act on, which justified them in the conclusion that the bank officers relied on the formerly existing firm, which had been known for .some time, and paid no heed to the names printed in the corners, or to the letter head itself. It is not uncommon for persons dealing with business houses to pay very little attention to their printed letter heads, and if the inference the jury drew from the whole testimony and 'demeanor of the witnesses before them was, as it seems to have been, that the bank officers acted on other grounds, we have no right to say, as matter of law, that their conclusions are wrong. It was, after all, a question of fact.
The case, so far as we can‘see, comes down to the ques tion which was the chief one relied on upon the hearing, whether the fact that Hibbard represented both firms and both had a common name, gave the plaintiff a right to elect which firm to hold responsible, without reference to the credit actually relied on.
The cases referred to in the elementary works cited by counsel for plaintiff do not, in our opinion — whether correctly decided or not — cover just such a case as the present. They hold unquestionably that where money is lent or credit given to a partnership business, unknown as well as known partners will be bound. It is held also in one or' more of these cases that where several firms are concerned together in common interests and a member .of some of the firms has so acted concerning paper issued by one of the firms in which he was not a partner, as to give reason to believe him a member, those who dealt on that belief might hold him personally. This is all that was actually decided in the Scotch case of McNair v. Fleming, in which the House of Lords partially affirmed the decision of the Court of Session. 3 Dow. P. C. 229. This is the case which Mr. Collier (Partnership, p. 222) says was regarded by Sir Samuel Pomilly as deciding that where different partnerships do business under the same firm and make negotiable paper under the same signature the holder may select whichever of them he pleases as his debtor, but cannot select them all. Neither this nor any other well-defined class of cases went — so far as we can judge — outside of the general rule that partnership liability rests on the ground of agency, and that those who have authorized any one to act on their behalf, either actually or impliedly are bound when he does so act, to those who deal with him as representing them or the firm to which they belong. It must always be remembered that general language in legal discussions is to be construed with its surroundings, and cannot be dealt with in the abstract.
In the case of McNair v. Fleming, after sustaining the general view of the Court of Sessions, the House of Lords allowed the defendant to set up the defence that plaintiff was barred by sequestration proceedings against tbe partnership in whose name the paper was issued, of which he was not actually a member, although they supposed him to be. The case of Yorkshire Banking Co. v. Beatson, 4 C. P. Div. 204: s. c. on appeal, 5 C. P. Div. 109, refers to several of the familiar cases on the subject, and like most of them regards the facts of each case as material in fixing the liability.
In the present case there can be no doubt that as between himself and his partners Hibbard had no right to borrow this money for his own purposes. If not absolutely determined by the evidence it certainly tends to show that under their usual course of business even the main firm of Hibbard & Graff could not properly bind Covode by any such loan for firm purposes. As between the two firms the usual practice seems to have confined loans to the original firm. In any event the later firm if bound at all could only be bound on the principle that it is incident to such business that one partner may bind it. And it is equally clear in our judgment that the firm to be bound must be the firm in whose name and for whose benefit Hibbard was understood to be acting. The court below charged very clearly that if the bank officers supposed there was but one firm of all the four doing business, all would be bound.
But as a matter of fact the original firm of Hibbard & Graff had never changed, and continued on the same relations as before. It had only made an arrangement for two years, subject to termination on ninety days’ notice, whereby it allowed the use of one of its mills to a firm in which it held a three-fourths interest, as a partnership, and not in the several names of its members. The case does not therefore differ materially from that of an individual making a partnership arrangement for a separate part of his business, where it has always been held that it must depend on the facts of the case whether paper signed in the individual name was sole or firm paper.
If therefore the bank dealt with the firm it had always known and which was still doing business, and lent money supposing it to be for that firm, the new firm could not be made liable unless the money was actually borrowed or used for its benefit. But this is not pretended, unless on the theory that credit was given to all four, — which is clearly negatived.
When this case was here before — although not then in perfect shape for disposal — it was intimated that the result now arrived at appeared to be the proper one. If the jury were right on the facts, we think the court was right on the law. There was evidence from which a different conclusion might have been reached, but the verdict has been allowed to stand, and we must assume justly.
We discover no error in the record, and the judgment must be affirmed with costs.
CooleY and Marston, JJ. concurred. | [
31,
36,
65,
22,
24,
35,
35,
-45,
21,
-20,
-63,
0,
-2,
24,
-30,
12,
19,
-79,
14,
-8,
10,
-86,
-70,
-34,
8,
-26,
-13,
-45,
3,
93,
-9,
47,
-2,
8,
-44,
57,
5,
36,
-5,
-56,
-13,
-30,
47,
33,
21,
50,
-25,
-52,
6,
-37,
-2,
-26,
13,
-2,
-19,
14,
-56,
-17,
-4,
47,
16,
-63,
61,
-58,
-41,
-26,
0,
6,
33,
-29,
-6,
7,
36,
-24,
-16,
-93,
64,
-15,
-26,
-3,
-40,
-28,
-7,
5,
19,
15,
-1,
-2,
26,
33,
54,
-17,
-37,
25,
-22,
32,
-123,
91,
-25,
80,
-8,
-74,
-91,
-1,
-9,
0,
-23,
-25,
-14,
59,
-4,
65,
40,
-60,
19,
-42,
-28,
-11,
1,
1,
-41,
-15,
0,
42,
-15,
1,
-69,
-23,
-33,
24,
44,
-48,
-80,
16,
-27,
28,
0,
31,
-58,
-40,
-39,
-1,
-17,
28,
-52,
-17,
8,
-18,
-28,
11,
-24,
28,
-29,
-8,
-44,
-10,
-32,
-19,
34,
2,
-10,
-1,
51,
-1,
-26,
17,
-8,
-13,
26,
-1,
-59,
51,
-64,
-39,
12,
8,
-14,
-70,
26,
-8,
20,
-2,
-38,
8,
29,
-20,
7,
32,
73,
2,
-17,
-15,
-53,
6,
-2,
-59,
-50,
-14,
5,
1,
0,
-21,
17,
-9,
0,
-2,
40,
-61,
-54,
-4,
0,
3,
-46,
23,
-14,
35,
-50,
-79,
39,
-10,
-22,
8,
-21,
6,
-9,
0,
15,
-1,
17,
5,
-76,
-10,
-5,
0,
-42,
-47,
5,
-51,
-22,
-17,
-49,
5,
-22,
-24,
-2,
-24,
-4,
1,
-20,
65,
-10,
15,
-71,
47,
6,
-22,
-9,
1,
55,
4,
-5,
22,
-46,
15,
37,
-74,
10,
84,
-5,
28,
48,
-82,
38,
0,
-45,
11,
-23,
31,
-18,
-3,
43,
-9,
-54,
-22,
69,
19,
-80,
6,
-29,
14,
25,
38,
-16,
-25,
17,
53,
-41,
-47,
10,
36,
-74,
16,
-4,
-71,
35,
11,
0,
3,
7,
8,
11,
-3,
-82,
-29,
31,
9,
28,
32,
-12,
0,
-21,
30,
9,
17,
28,
18,
1,
-11,
5,
17,
31,
-14,
8,
-33,
-27,
-27,
100,
36,
32,
-57,
-29,
13,
-18,
36,
-54,
32,
-21,
-24,
-17,
6,
-1,
-13,
18,
13,
30,
31,
0,
12,
-46,
19,
25,
1,
-1,
28,
12,
12,
-9,
16,
2,
37,
-57,
22,
-19,
-54,
21,
17,
-44,
22,
-36,
32,
24,
-26,
11,
3,
21,
32,
-17,
9,
-90,
44,
-69,
17,
-20,
39,
17,
-30,
3,
-41,
-48,
-41,
-14,
68,
15,
-24,
-29,
-2,
-47,
12,
-37,
-35,
2,
-31,
-52,
-17,
-26,
-11,
-5,
-17,
39,
57,
52,
47,
-40,
-58,
29,
-6,
70,
24,
2,
65,
-5,
-19,
0,
8,
40,
-16,
-4,
42,
78,
17,
29,
-34,
-12,
4,
46,
-2,
0,
-11,
27,
-12,
16,
36,
-14,
-29,
-19,
-8,
11,
-26,
28,
9,
20,
38,
28,
66,
18,
24,
8,
-23,
-4,
6,
-13,
13,
60,
-8,
-57,
-7,
48,
34,
0,
26,
2,
38,
66,
47,
7,
-19,
-51,
-43,
-18,
51,
30,
26,
-2,
35,
38,
41,
-38,
-1,
-28,
-6,
-6,
0,
-5,
8,
-3,
-2,
-9,
-6,
-54,
103,
-1,
-61,
43,
-36,
-77,
30,
26,
-1,
0,
-4,
27,
-14,
-58,
70,
0,
0,
30,
18,
46,
10,
4,
50,
-33,
-13,
17,
-22,
38,
31,
21,
-7,
-8,
5,
17,
30,
-32,
-1,
-26,
-49,
-45,
-27,
-9,
15,
64,
55,
-9,
78,
41,
14,
-5,
-22,
-35,
12,
23,
-14,
23,
-66,
39,
31,
23,
-5,
-51,
-26,
0,
83,
-22,
29,
-39,
0,
17,
-5,
4,
-17,
39,
-68,
-66,
33,
15,
47,
-19,
-27,
6,
19,
-37,
-8,
-14,
-44,
14,
36,
44,
82,
31,
13,
-20,
-7,
-17,
-46,
-35,
33,
-18,
-44,
-25,
12,
-13,
5,
57,
-48,
8,
3,
27,
2,
23,
-10,
-100,
15,
-13,
9,
2,
0,
67,
58,
2,
-69,
-16,
66,
-69,
38,
-7,
85,
-28,
-31,
2,
-17,
-23,
-37,
8,
-36,
0,
-6,
26,
-1,
7,
41,
31,
-2,
-128,
-44,
29,
19,
-43,
-10,
29,
11,
0,
9,
6,
26,
6,
76,
-4,
49,
25,
-36,
32,
-68,
33,
9,
16,
27,
-5,
-18,
-22,
5,
12,
37,
31,
40,
-20,
-54,
-15,
16,
-1,
23,
-60,
-43,
-4,
28,
4,
-62,
0,
0,
-24,
19,
23,
56,
43,
-33,
-1,
-53,
3,
16,
75,
-22,
37,
19,
-7,
-26,
-58,
38,
9,
-62,
9,
-20,
52,
-16,
-35,
-42,
-15,
40,
4,
74,
12,
30,
9,
16,
9,
22,
27,
-17,
-46,
2,
-32,
-59,
-22,
22,
-17,
34,
14,
-8,
21,
-5,
-2,
40,
-32,
-11,
6,
-1,
-64,
-7,
0,
12,
-13,
0,
-19,
-42,
-35,
53,
-15,
-7,
29,
-26,
-10,
19,
-35,
-6,
27,
7,
13,
-8,
36,
44,
4,
29,
35,
-13,
38,
-25,
32,
18,
71,
28,
-28,
42,
-19,
6,
-87,
0,
19,
-6,
-18,
-3,
-47,
47,
3,
33,
-16,
-10,
3,
34,
-4,
-23,
-19,
-13,
6,
-31,
7,
65,
-40,
12,
-14,
22,
-60,
-21,
49,
16,
7,
34,
-29,
10,
-65,
61,
11,
-37,
19,
-14,
24,
28,
4,
-15,
21,
-23,
-26,
-41,
11,
-27,
32,
-6,
17,
40,
15,
-65,
0,
-16,
-56,
-32,
-3,
-50,
-2,
-35,
-40,
22,
24,
-37,
-4,
30,
-11,
-74,
9,
55,
-26,
9,
-8,
-14,
23,
-14,
-15,
24,
-53,
2,
-5,
-16,
-17,
19,
-6,
30,
-17,
-39,
0,
46,
18,
5,
-20,
-17,
2,
20,
29,
1,
60,
-64,
41,
24,
-29,
30,
10,
-18,
37,
-19,
-25,
38,
-2,
-6,
54,
-15,
61,
-15,
-23,
10,
27,
42,
-7,
31,
-26,
-25,
-18,
97,
-50,
28,
23,
64,
-47,
69,
-24,
-19,
-6,
-11,
-22,
-27,
19,
-35,
6,
-27,
52,
-18,
22,
-41,
-5,
2,
4,
-65,
18,
9,
-17,
10,
-11,
19,
-61,
-9,
-10,
-13,
30,
34,
35,
-36,
-47,
-1,
-2,
11,
25,
32,
3,
-48,
-17,
-1,
-4,
-33,
-20,
-35,
21,
-17,
30,
-10,
42,
-15,
-31,
18,
9,
3,
6,
15,
1,
28,
-9,
32,
-8,
-35,
67,
-2,
32,
-26,
-24,
7,
25,
-13,
14,
-12,
-7,
0,
-6,
22,
27,
13,
-16,
-16,
46,
27,
8,
-3,
-15,
19,
5,
-2,
-12,
36,
6,
21
] |
OooiiEY, J.
This is an injunction bill. The general-purpose is to restrain the defendant from interfering with the natural flow of water in Flat river to the prejudice of complainants.
The complainants are owners of a mill site and mill on-said river in the township of Yergennes, and their motive-power is obtained by means of a dam erected and maintained by them. Defendant is a corporation engaged in running logs and timber down Flat river and Grand river, and from the year 1874 when it was organized to the time of the filing-of the bill in 1880 had run from fifty to one hundred and fifty million feet of logs annually past complainant’s mill, and dam.
It is alleged in the bill that during the greater part of the year Flat river is too shallow to float logs in its natural condition, and that defendant is in the habit of accumulating-the waters of the river and its tributaries in large reservoirs, formed by numerous dams which it owns or controls, and of flooding from those reservoirs to enable its employes to run logs more advantageously and at times when they could not be run upon the natural stream. That such floods are-of such size and violence that mill-owners ai’e compelled to open their waste weirs and sluices to save their property from destruction, and that complainants are thus kept in constant danger, and are often unable to prevent danger to their mill and dam.
That defendant is also in the habit of building temporary-dams, commonly called jams, of logs for the purpose of raising the water in the rear of such jams, and that thereby the water is often raised even higher than by the floods from their permanent dams; and that when such jams are broken, the mass of accumulated logs is driven down stream by the water with resistless force, and dams, booms and fences, or anything else which is encountered, are endangered, injured or destroyed.
That by such floods and jams of logs the defendant, crushed the booms and boom-piers of complainants in 1877, carried away logs and tore out a part of the dam, thereby inflicting injury for which compensation was refused. That complainants have vainly endeavored to repair the dam, but have been prevented by the floods and jams caused by defendant from doing so. That at the time of filing the bill there was a jam of from thirty to forty million feet of logs resting above and against the dam, and threatening to tear out the remainder of it.
That the holding back of the water by the defendant injures the water-power, and that letting it loose in floods both injures the water-power and injures and endangers the mill and the mill property; and that the result of these practices by the defendant has been to deprive the complainants of the use of their mill, and to greatly lessen the value thereof.
And the bill prays that defendant be enjoined from holding back the water of Flat river by means oí dams, reservoirs or jams, and from flooding such reservoirs, and from setting back and damming the waters of said river by the use of jams of logs.
The answer makes an issue upon the right of complainants to maintain their dam, insisting that the authority they claim to have for the purpose from the county board of supervisors is ineffectual for various reasons which we do not find it necessary to examine. It admits that defendant is in the practice of causing floods on Flat river to assist the floating of logs, but claims that, in doing so no attempt is made to create a navigation that did not exist by nature, but only to aid the natural floatage in times of low water, and that the necessity for this is largely caused by the interference of the dams, of complainants and others with the natural floatage. It insists that in whatever has been done in this direction by defendant careful. regard has been had for the rights of mill-owners, and it denies specifically that complainants have any cause for complaint.
This is a very brief statement of the issue. A great mass of testimony, which appears before us in two large volumes, was taken upon it, and the circuit court upon consideration of this evidence dismissed the bill with costs.
It is manifest from this statement of the issue that the question before the court is one of the reasonable use by the parties respectively of the waters of Flat river. Complainants have a right to make use of them for milling purposes, and their case is that defendants unreasonably interfere with "the enjoyment of this right. Defendants have a right in common with the whole public to make use of the waters for floating logs, and they claim that they assert and enjoy this right in a careful and prudent manner, and with no unnecessary interference with the rights of any one. The questions presented — at least on this branch of the case— are therefore purely questions of fact. Defendant has no rights which are paramount to those of complainants; Middleton v. Flat River Booming Co. 27 Mich. 533; White River etc. Co. v. Nelson 45 Mich. 578; nor have they a right to monopolize the stream to the prejudice of public floatage. Each right modifies the other and may perhaps render it less valuable, but this fact, if the enjoyment of the right is in itself reasonable and considerate, can furnish no ground for complaint. Thunder Bay Booming Co. v. Speechly 31 Mich. 336; Dumont v. Kellogg 29 Mich. 425; Gould v. Boston Duck Co. 13 Gray 452; Snow v. Parsons 28 Vt. 459.
But rights thus related it is exceedingly difficult to protect by injunction without incurring the danger of causing more mischief than the writ could prevent. The decree awarding an injunction could not well go beyond laying down general principles; and these would be merely declaratory of rules of law which nobody disputes, and which both parties profess to accept and obey. Defendant is entitled to use the stream for its purposes; and flooding may at times be perfectly reasonable and lawful. No court can in advance prescribe the times and occasions, and no court can in advance determine how far a particular jam of logs may be attributable to complainants’ dam rather than to defendant’s misconduct or mismanagement, or be justified by the failure of complainants to make suffieient provision for the passage of logs over their dam. Where specific acts can be forbidden, an injunction may be proper; but where the questions from their nature must be perpetually recur ring, and are only questions of what is reasonable in view of the special facts, it is seldom that an attempt to preclude the violation of right by issuing a mandatory writ can be of any avail. On this subject we refer to what is said in Bradfield v. Dewell ante p. 9, decided at the last term.
But the denial of an injunction may be justified in this: case for the reason that complainants are not, nor have they been since defendant has been in existence, in the use and enjoyment of their water-power for milling purposes. They assign as a reason for this that the misconduct of the defendant has precluded such use; but the proof is clear that from-1873 to 1877 the mill was allowed to lie idle for reasons with which defendant had no connection whatever. The-question then is this: whether complainants are entitled to an injunction to restrain the commission of such acts as would impede them in entering upon the use of a mill which has long stood idle; their complaint being not that defendant interferes with an existing business, but that it prevents one being established. The legal rights of complainants are not any less by reason of their mill having stood idle; if they own the dam and the site, they are entitled to make use of them: Hoy v. Sterrett 2 Watts 327; but the fact is an additional reason why the court should be cautious in awarding an injunction, for it increases the difficulty in laying down rules to govern the conduct of the-parties when the mill shall be put in operation. A rule-that should now seem to be necessary for complainants’ protection might then be found needless, and on the other-hand what should seem sufficient now might then be found unsatisfactory and ineffective. The remedy at law is far better adapted to the case than any which can be afforded in equity, and they must be left to pursue it. Bradfield v. Dewell supra; Hall v. Rood 40 Mich. 46; Wing v. Sherrer 77 Ill. 200.
The decree will be so modified as to make the dismissal of the bill without prejudice, but in other respects it will be affirmed with costs.
The other Justices concurred. | [
-10,
46,
9,
16,
33,
17,
78,
34,
-1,
68,
-10,
22,
33,
-10,
37,
-30,
-46,
-41,
-7,
43,
-1,
-3,
52,
-42,
-36,
12,
12,
-49,
-36,
65,
-34,
-16,
-47,
16,
-5,
-53,
-30,
7,
9,
-18,
-9,
0,
21,
-19,
55,
-2,
66,
25,
17,
28,
13,
-13,
-9,
-4,
-60,
20,
-55,
-18,
-39,
37,
-14,
-33,
37,
-6,
34,
-34,
-15,
9,
12,
5,
-12,
64,
-2,
-11,
41,
50,
-13,
-78,
-22,
73,
-74,
45,
-20,
-14,
-7,
-49,
-47,
17,
29,
33,
-41,
-67,
-83,
-5,
7,
-9,
-18,
24,
-29,
16,
45,
36,
54,
0,
15,
-41,
-23,
22,
-12,
4,
21,
9,
5,
-20,
14,
-48,
13,
3,
7,
-15,
-1,
18,
17,
26,
-81,
-9,
0,
-31,
-21,
-3,
18,
-50,
-4,
-1,
58,
54,
-35,
43,
53,
-18,
2,
18,
-10,
11,
-49,
20,
15,
2,
24,
-44,
-6,
16,
12,
-17,
-15,
-6,
24,
-23,
62,
4,
27,
12,
-3,
-9,
-69,
-12,
-14,
-29,
-17,
57,
17,
-11,
-34,
35,
19,
41,
21,
-11,
16,
25,
51,
2,
-28,
21,
-4,
8,
-4,
7,
25,
5,
47,
-62,
-11,
-36,
-13,
6,
-19,
-15,
-23,
-3,
12,
-17,
-62,
32,
8,
-23,
-13,
27,
-27,
11,
-9,
48,
-43,
-10,
-22,
60,
-21,
-56,
59,
-38,
10,
26,
80,
28,
-26,
-56,
29,
60,
63,
-25,
5,
-14,
12,
-12,
-9,
9,
17,
5,
50,
7,
-39,
30,
-50,
-51,
30,
-4,
-56,
15,
18,
26,
-30,
-44,
11,
37,
20,
9,
38,
-4,
-52,
-45,
13,
-21,
45,
-73,
18,
-42,
-20,
37,
-21,
-13,
17,
-5,
52,
-3,
-44,
-13,
18,
-15,
-46,
-5,
6,
4,
-45,
11,
-20,
-39,
-12,
-36,
-12,
0,
0,
17,
1,
-10,
-19,
63,
23,
-20,
49,
41,
-10,
-49,
-18,
-33,
-34,
13,
-16,
0,
-11,
-11,
-37,
-15,
-43,
-1,
-42,
-22,
-4,
37,
-18,
-2,
63,
-11,
28,
12,
-46,
44,
50,
38,
-6,
60,
27,
-41,
4,
0,
29,
8,
43,
0,
-12,
0,
11,
37,
-6,
2,
-60,
16,
23,
-6,
22,
-23,
12,
48,
31,
30,
19,
-16,
-55,
-2,
-20,
16,
37,
7,
29,
-5,
63,
-14,
-22,
17,
21,
11,
-56,
21,
19,
34,
28,
-17,
-8,
17,
-40,
0,
75,
25,
48,
28,
9,
11,
-16,
-54,
-44,
31,
-20,
6,
-25,
35,
-40,
-10,
23,
-16,
-18,
1,
12,
15,
7,
29,
-26,
-6,
-16,
-25,
11,
-6,
-12,
-27,
-17,
-30,
-12,
6,
4,
42,
33,
-3,
35,
30,
13,
8,
32,
-38,
37,
-16,
74,
7,
-41,
-4,
2,
44,
-50,
-10,
-10,
-3,
9,
-36,
-25,
7,
34,
-41,
-15,
-13,
-41,
-10,
7,
-82,
-4,
1,
-66,
-27,
9,
75,
-19,
-15,
9,
-15,
-80,
15,
-21,
6,
-8,
2,
-10,
-44,
41,
26,
5,
18,
68,
-53,
-12,
-8,
4,
31,
-19,
-29,
25,
33,
36,
24,
-30,
-72,
-1,
74,
5,
-4,
39,
21,
-12,
-35,
-11,
-9,
-11,
-6,
45,
47,
7,
-2,
-21,
-4,
-5,
20,
2,
91,
26,
99,
11,
-67,
43,
-25,
-101,
59,
20,
-13,
14,
-2,
22,
-10,
-18,
23,
-27,
-15,
-6,
-39,
2,
5,
14,
-28,
-18,
-6,
-16,
9,
-37,
20,
-27,
-20,
-22,
10,
13,
-34,
23,
1,
-34,
-34,
25,
-13,
-60,
0,
62,
19,
-6,
72,
-64,
-54,
-21,
-3,
-6,
-18,
-7,
-55,
16,
32,
-2,
-3,
32,
-5,
3,
31,
21,
42,
-11,
5,
-15,
1,
0,
56,
-52,
-74,
-30,
-15,
-15,
-6,
-19,
0,
-26,
-1,
-3,
6,
-7,
-12,
-45,
-3,
38,
6,
5,
2,
-20,
-11,
-6,
2,
-21,
47,
-6,
-26,
0,
7,
8,
0,
-1,
49,
34,
10,
2,
-57,
21,
-6,
61,
-41,
-3,
23,
-55,
-17,
21,
21,
-22,
18,
-97,
4,
-12,
40,
-2,
36,
-11,
60,
-15,
59,
-40,
-54,
-3,
-3,
-9,
6,
-17,
41,
-65,
18,
17,
-6,
19,
16,
2,
1,
30,
0,
0,
-12,
61,
-19,
50,
39,
-62,
36,
-27,
51,
-52,
-10,
36,
-44,
31,
-11,
0,
-51,
-35,
15,
1,
7,
9,
26,
28,
-21,
10,
12,
15,
29,
12,
11,
52,
-26,
0,
7,
-51,
-1,
-28,
13,
15,
-13,
-21,
0,
12,
3,
-33,
-8,
-11,
-56,
-10,
32,
-5,
5,
102,
0,
10,
-27,
9,
-40,
-16,
-43,
0,
-10,
-21,
37,
-16,
-30,
-34,
-27,
-50,
79,
-22,
24,
7,
-52,
72,
0,
-6,
47,
13,
-45,
15,
-66,
-40,
-5,
21,
-9,
14,
-3,
27,
2,
26,
-25,
2,
14,
-39,
0,
-28,
-18,
-5,
2,
74,
-45,
16,
-14,
14,
-71,
-26,
-1,
17,
-13,
-33,
2,
-28,
-28,
11,
-36,
-79,
6,
24,
40,
15,
-61,
1,
-44,
-14,
-75,
10,
-31,
2,
-53,
-10,
3,
-21,
13,
-27,
13,
-57,
-47,
-14,
-5,
-17,
-10,
3,
89,
-10,
11,
-21,
-29,
-39,
11,
-36,
-4,
-15,
-20,
-4,
-28,
-6,
11,
7,
26,
-12,
38,
12,
-50,
77,
-21,
34,
1,
3,
-18,
54,
6,
-27,
5,
22,
-46,
-3,
-56,
15,
-15,
-76,
7,
-19,
4,
-18,
-6,
-16,
33,
-69,
17,
19,
32,
-20,
27,
-5,
-6,
-1,
-19,
0,
43,
16,
7,
41,
-34,
-6,
-6,
-10,
-8,
-45,
-9,
-2,
17,
-25,
17,
10,
12,
-41,
-30,
-17,
-12,
34,
19,
-12,
-12,
-30,
42,
-19,
-30,
66,
0,
17,
27,
15,
7,
34,
47,
-11,
-41,
-24,
16,
-26,
26,
-24,
26,
-68,
-22,
-24,
-19,
40,
39,
0,
-3,
4,
-5,
-57,
20,
-10,
32,
-40,
19,
46,
-24,
40,
16,
-14,
52,
-11,
31,
-30,
39,
-51,
-27,
27,
-8,
-54,
22,
8,
-56,
33,
0,
19,
-18,
7,
21,
30,
-21,
31,
-9,
-11,
-9,
7,
-22,
48,
39,
-21,
-6,
-26,
45,
-9,
14,
-16,
-5,
14,
9,
-31,
-4,
-3,
-3,
0,
-31,
-32,
13,
-11,
7,
7,
13,
26,
-19,
0,
-66,
35,
-27,
19,
10,
17,
-22,
-46,
-30,
8,
51,
-43,
72,
31,
20,
-1,
-58,
-66,
-13,
-27,
-4,
39,
3,
-5,
49,
99,
51,
-10,
20,
-6,
-4,
-41,
11,
35,
46,
5,
12,
20,
15,
27,
-11,
67,
5,
-17,
36
] |
Cooley, J.
This suit originated in justice’s court. The' plaintiff declared orally on the following contract:
“Manistee, June 1st, 1880.
In consideration of the sum of one dollar, to me in hand paid, I hereby agree to permit S. W. Fowler and his tenants to pass over the usual road or place for hauling, over my premises, to get to and from his two houses, next north of the river, on Maple street.
Jos. Hyland,
her
Pleasant X Hyland.
mark.
Witness: E. G-. Embler.”
The breach alleged was “ that the said defendants have closed up said road and refused to permit and have not permitted said plaintiff or his tenants to pass over the same and thereby have compelled him to construct a road over which to pass, and put him to great trouble and expense,, to his damage of fifty dollars.” The plaintiff afterwards amended his declaration’ by adding the statement “ that the' premises in question are on the first block north of the bridge, in Manistee City, Michigan, on the east side of the. street, and the said breach occurred and was continued from, about April 1st, 1881, to the commencement of suit.”
The defendants objected to the reception of any evidence under this derivation, for the reason that the justice had no' jurisdiction of the case; but the objection was not sustained, and evidence was received and plaintiff had judgment. The defendants then took a special appeal, and assigned for: error the reception of evidence under the declaration, and the giving of judgment for the plaintiff. When the special appeal came on for hearing, the plaintiff requested leave to-amend his declaration, but this was refused, and the judgment was reversed for want of jurisdiction.
It is very plain, we think, that the justice had no jurisdiction. The statute provides that “ No justice of the peace-shall have cognizance of real actions, actions for a disturbance of a right of way, or other easement.” Comp. L. § 5250. If the contract in question gives a right for the-disturbance of which an action will lie, it must create an easement. If it falls short of this, it .is. a license merely,.. and was revoked by closing up tlie way. Whether this paper creates an easement is, therefore, unimportant. If the contract was intended as a deed, the mere omission of a seal would not render it ineffectual. Oomp. L. § 6194. But neither party claims that it is a deed, and it would be immaterial if they did, for reasons already given.
If the justice had no jurisdiction the only further question is whether the circuit court was right in reversing the judgment on that ground. The objection, as has been already stated, was raised by special appeal. A special appeal under the statute — Comp. L. § 5432 — brings up for examination objections “ to the process, pleadings, or other proceedings, and the decision of the justice thereon, which would not. be .allowed to be made on the trial of the appeal,” and it also brings up the case for trial on the merits in case the objections are not sustained.
It is insisted for the plaintiff that the objection to the jurisdiction was not one to be brought up by special appeal under the statute, and therefore the court erred in sustaining it on the hearing of that appeal. It is also claimed that the circuit court should have permitted the plaintiff to amend his declaration and go to trial on the merits. Upon these claims we have only to say:
1. That no amendment could possibly save the ease. The declaration before the justice put the case out of his jurisdiction. But when the appeal removed the case to the circuit court, it took up the same case that was before the justice: Cross v. Eaton decided herewith [post, p. 184]; and though an amendment might have been allowed in that court to correct errors of form, it could not be allowed for the purpose of making a new case and counting upon a different cause of action, for the very obvious reason that to do so would be to convert the appeal into an original suit.
2. As the circuit court would have been compelled to reverse the judgment when the case was called for trial on .the merits, the plaintiff was not wronged by its doing so on the hearing of the special appeal, even if the jurisdictional question was not properly taken by that appeal. The moment the nature of the action was called to the attention of the circuit judge, he must have refused to receive evidence, and would have proceeded to give judgment for the defendants: But.we also think a special appeal was intended for such questions. They are not objections to be “ made on the trial,” but objections which preclude a trial altogether.
The judgment must be affirmed with costs.
The other Justices concurred. | [
-28,
28,
-19,
-39,
-27,
30,
30,
35,
-6,
34,
38,
-19,
69,
-14,
21,
3,
-25,
-21,
-7,
25,
-6,
-67,
15,
-42,
9,
3,
53,
-37,
-43,
26,
10,
0,
-53,
51,
-21,
-30,
35,
-5,
-5,
28,
0,
-11,
24,
-52,
37,
11,
11,
10,
19,
-20,
-14,
36,
-19,
-33,
-44,
-23,
-49,
27,
-8,
-2,
-20,
10,
-23,
6,
-27,
-8,
-1,
-1,
34,
-11,
-13,
39,
-3,
-14,
0,
0,
11,
-3,
-2,
-14,
21,
-2,
37,
-37,
11,
5,
-26,
-17,
26,
5,
-14,
-29,
31,
16,
-16,
2,
-27,
-6,
-10,
-9,
32,
33,
26,
29,
24,
-1,
-45,
-33,
-10,
3,
-11,
39,
15,
-20,
-29,
-18,
-7,
5,
29,
6,
-23,
-22,
5,
-13,
-54,
-3,
6,
-35,
-21,
35,
6,
10,
0,
51,
30,
27,
-50,
13,
42,
-11,
-17,
22,
-5,
-72,
-1,
-21,
9,
-28,
-37,
-30,
-12,
33,
17,
-5,
-52,
29,
37,
-47,
49,
-28,
50,
0,
0,
18,
-34,
0,
-27,
31,
25,
59,
23,
-40,
-32,
-52,
-23,
-48,
-7,
40,
-13,
-31,
-2,
21,
13,
3,
-15,
-61,
12,
-7,
11,
2,
46,
-24,
-20,
7,
11,
47,
-70,
-17,
20,
-48,
5,
-26,
-38,
0,
-48,
14,
4,
-18,
-5,
27,
-35,
5,
-41,
-52,
37,
17,
62,
6,
18,
-12,
39,
21,
-6,
-2,
-40,
-19,
-27,
-2,
33,
-22,
-3,
-44,
-16,
15,
-6,
27,
-4,
-9,
-19,
14,
-1,
61,
-53,
0,
-10,
-31,
-1,
-24,
0,
28,
-54,
-43,
-19,
2,
4,
-4,
39,
22,
-68,
-19,
47,
61,
-47,
-41,
4,
-5,
11,
-14,
-23,
-20,
-24,
50,
10,
30,
-51,
-6,
-23,
23,
-13,
-3,
17,
-35,
4,
8,
12,
13,
-15,
20,
-12,
53,
-18,
-59,
-39,
-2,
-12,
62,
9,
-5,
-24,
-7,
6,
-28,
0,
11,
-6,
-51,
-23,
-8,
19,
28,
-23,
38,
-15,
-24,
0,
79,
12,
-8,
-6,
-94,
33,
33,
-8,
3,
0,
14,
40,
31,
-6,
51,
40,
-25,
-16,
16,
7,
-14,
8,
-67,
-64,
-13,
5,
11,
2,
-62,
-1,
19,
-2,
-17,
9,
19,
-8,
-28,
-45,
0,
0,
4,
-49,
-29,
-8,
25,
21,
26,
-4,
-16,
23,
7,
-24,
-7,
8,
28,
-3,
3,
-26,
-13,
-31,
-30,
-19,
-15,
-44,
53,
5,
-28,
1,
17,
15,
-15,
-76,
-39,
-33,
-31,
-57,
-19,
32,
44,
-26,
14,
5,
22,
-33,
5,
26,
34,
-17,
36,
-1,
-22,
2,
28,
-9,
4,
-3,
-20,
27,
11,
-8,
24,
48,
0,
16,
0,
6,
3,
14,
-34,
-7,
-53,
38,
28,
-62,
19,
10,
7,
38,
-16,
22,
-10,
-34,
-45,
-40,
10,
-16,
20,
-4,
-30,
-28,
-5,
-15,
55,
-40,
-44,
33,
78,
-2,
13,
-4,
-5,
25,
-3,
41,
-7,
9,
-26,
13,
-44,
-56,
-9,
-24,
0,
-2,
45,
-1,
27,
-10,
-17,
-63,
-33,
-5,
33,
-17,
17,
-31,
25,
17,
32,
-3,
-32,
2,
6,
17,
11,
29,
20,
5,
-29,
31,
-34,
-6,
-5,
2,
39,
31,
52,
-33,
-37,
-1,
8,
0,
18,
3,
44,
-23,
-2,
32,
48,
4,
49,
11,
-1,
5,
-2,
1,
-46,
-26,
-61,
-20,
34,
-17,
-1,
-20,
-12,
39,
-22,
20,
-5,
-11,
0,
65,
16,
47,
36,
-23,
34,
-7,
34,
-1,
-6,
-11,
5,
19,
4,
-27,
-27,
12,
-35,
-13,
7,
-12,
-30,
18,
-10,
-4,
-23,
30,
-32,
19,
37,
46,
-53,
4,
-26,
-21,
21,
23,
-19,
-50,
29,
-40,
-34,
-10,
11,
-17,
-9,
-27,
-49,
-9,
35,
-26,
-15,
2,
12,
-52,
35,
-54,
-31,
20,
-12,
-6,
10,
29,
58,
10,
-61,
-31,
28,
18,
3,
-25,
-28,
38,
34,
-1,
-14,
-12,
33,
5,
27,
5,
-29,
76,
2,
31,
-1,
58,
0,
-24,
-8,
3,
60,
-54,
25,
-40,
36,
-23,
19,
39,
25,
31,
32,
13,
21,
-31,
-20,
-20,
-5,
-16,
-4,
-21,
0,
0,
-32,
-5,
46,
-14,
-3,
38,
13,
17,
17,
0,
-1,
36,
-23,
-18,
-28,
-56,
-1,
6,
16,
-4,
14,
60,
-58,
14,
50,
3,
-66,
15,
3,
54,
47,
32,
-49,
20,
-9,
13,
-25,
5,
24,
1,
26,
12,
-21,
-16,
-38,
-9,
-23,
2,
30,
15,
-8,
-25,
-3,
60,
35,
-48,
21,
6,
-36,
0,
42,
-3,
-3,
-26,
9,
9,
32,
0,
33,
2,
19,
37,
-47,
-47,
-22,
14,
15,
16,
-22,
-26,
12,
25,
26,
8,
-9,
-2,
2,
7,
-11,
-9,
-34,
4,
-24,
-22,
20,
-13,
-33,
24,
18,
-14,
-3,
18,
-8,
21,
15,
25,
-52,
-17,
51,
-4,
-1,
21,
-19,
38,
-34,
-12,
-9,
-16,
-32,
-20,
-3,
-36,
6,
12,
-58,
17,
32,
9,
-25,
-15,
-34,
24,
-25,
-36,
-10,
-16,
6,
43,
-62,
21,
29,
-13,
-11,
-57,
10,
-54,
-63,
15,
-11,
5,
14,
3,
12,
0,
81,
15,
-10,
-44,
33,
29,
10,
-13,
-26,
-14,
-28,
-11,
-21,
-20,
52,
-6,
6,
-34,
34,
-6,
2,
59,
25,
14,
-27,
-26,
-2,
56,
-25,
-36,
31,
26,
12,
1,
-3,
10,
12,
15,
-41,
-36,
25,
18,
21,
-28,
-22,
-27,
-13,
-42,
37,
5,
6,
-4,
-6,
-5,
-30,
15,
1,
55,
-1,
-36,
2,
42,
-4,
14,
-39,
12,
19,
36,
44,
52,
17,
29,
-21,
-30,
-45,
31,
19,
7,
4,
-7,
37,
-36,
-15,
26,
13,
23,
82,
44,
13,
10,
46,
-46,
-12,
-40,
-20,
6,
-6,
-17,
-24,
29,
4,
-24,
-55,
8,
35,
36,
-6,
2,
-77,
-25,
-79,
14,
-18,
-69,
1,
-10,
48,
24,
17,
-20,
-35,
-35,
26,
-25,
19,
5,
38,
-32,
-11,
-16,
7,
66,
-15,
66,
-35,
-40,
-39,
6,
12,
25,
29,
-1,
-13,
6,
5,
0,
33,
-51,
5,
24,
31,
6,
8,
-3,
-12,
-1,
-24,
43,
35,
45,
-34,
-36,
1,
68,
-9,
-3,
39,
-26,
8,
6,
4,
-30,
16,
-19,
-1,
12,
-49,
11,
-21,
-9,
77,
27,
29,
57,
-6,
-18,
-40,
0,
29,
-31,
-3,
-30,
37,
-31,
48,
-22,
-25,
29,
36,
-39,
16,
23,
7,
44,
45,
40,
-62,
-48,
4,
53,
52,
5,
58,
-35,
13,
-19,
-8,
43,
-37,
-12,
58
] |
Cooley, J.
If Mrs. McHugh was supporting her family or contributing thereto by the employment of the team which is now in dispute, she had the same privilege to hold it exempt from execution that any man would have had under similar circumstances. The exemption laws are not made for one sex only, but are general in their benefits; and a woman whose business is of the humblest and most limited character, is as much entitled to their privileges as one who is a farmer or shop-keeper.
But the difficulty in this case is, that the referee finds a& a fact that Mrs. McHugh, at the time the team was taken in. execution, was not a resident of this State, but had removed therefrom to the Dominion of Canada, and was then resident in Canada. It may be, as her counsel insists, the referee ought not to have so found on the evidence; but we cannot review his conclusions of fact, and if we could, the whole evidence has not been returned in a bill of exceptions for the purpose-
States are not accustomed to give exemptions from the laws for the collection of debts for the benefit of persons resident in other jurisdictions. The exemptions are personal privileges, dependent on personal or family circumstances ; and if one who possesses them removes to a foreign state, whereby he would acquire under its laws privileges more or less liberal not possessed by our own people, he thereby abandons those which he possessed before so far as they were local in their nature. And if exemption privileges are not necessarily local, they certainly are in their reasons. They are conferred on grounds of state policy, to add to the comfort and encourage the industry of the people; and every state will mate such regulations on the subject as its own people shall deem wisest and best.
We have no alternative but to set aside the judgment of the circuit, and direct that judgment be entered on the report of the referee.
The other Justices concurred. | [
-37,
-15,
-53,
21,
-20,
-3,
24,
19,
-43,
35,
11,
44,
65,
-23,
-25,
-1,
12,
-7,
-39,
-1,
-22,
-1,
-56,
-15,
4,
-5,
48,
2,
-9,
43,
7,
-29,
0,
17,
-19,
-28,
5,
28,
24,
11,
12,
2,
-23,
24,
-6,
28,
13,
-18,
47,
-46,
31,
-16,
-21,
32,
11,
34,
-2,
31,
3,
55,
-6,
6,
31,
1,
48,
-22,
-10,
-27,
-5,
-15,
-11,
1,
-104,
-48,
-33,
0,
9,
-5,
-5,
2,
-32,
18,
3,
-66,
-7,
22,
-13,
18,
-23,
-12,
0,
-7,
-39,
-27,
-49,
46,
15,
-10,
-19,
-11,
-30,
-40,
16,
27,
40,
-5,
-9,
27,
58,
24,
5,
37,
-15,
-27,
4,
-29,
-21,
-10,
-86,
15,
41,
52,
54,
19,
16,
-62,
-9,
-24,
24,
-18,
1,
1,
22,
-35,
-42,
14,
15,
-10,
31,
-5,
23,
31,
18,
-27,
3,
10,
9,
-10,
-14,
-36,
10,
-22,
33,
7,
-10,
-37,
12,
-19,
43,
-21,
-37,
20,
52,
15,
4,
-37,
-30,
40,
14,
-2,
43,
25,
-45,
35,
34,
7,
-11,
-67,
-8,
21,
-55,
58,
-18,
4,
0,
10,
-22,
-31,
28,
-38,
-21,
-31,
14,
-2,
8,
-6,
6,
16,
14,
-15,
22,
20,
7,
26,
32,
4,
-41,
19,
-91,
-27,
23,
-1,
-15,
-57,
-90,
20,
-22,
-7,
-39,
14,
5,
26,
-10,
1,
-43,
-67,
5,
37,
4,
-45,
-14,
-28,
54,
37,
-2,
-15,
8,
31,
23,
-29,
-3,
3,
-3,
-21,
-31,
-6,
3,
41,
1,
6,
24,
0,
55,
73,
-37,
-29,
13,
-19,
-28,
25,
-13,
53,
-3,
23,
-7,
25,
11,
46,
24,
8,
62,
-7,
39,
28,
-51,
-30,
37,
-11,
-4,
-17,
6,
35,
0,
-3,
-53,
-17,
-16,
-54,
-16,
26,
52,
7,
-9,
20,
47,
8,
59,
-29,
-38,
14,
21,
-26,
88,
27,
-2,
-10,
-12,
9,
-35,
-19,
6,
-8,
8,
-41,
20,
-14,
-32,
-5,
2,
21,
-7,
-37,
57,
-1,
4,
-56,
64,
-89,
-18,
12,
38,
5,
-23,
-11,
-14,
-37,
16,
24,
7,
-41,
-49,
-40,
-17,
-30,
6,
15,
-45,
31,
6,
-20,
27,
26,
10,
28,
47,
-34,
14,
-34,
-20,
-18,
22,
-17,
-18,
4,
15,
14,
24,
-31,
0,
10,
52,
0,
22,
-5,
1,
20,
7,
27,
-4,
13,
2,
29,
12,
18,
-2,
-1,
-6,
2,
0,
-4,
-26,
-1,
-6,
-11,
-67,
2,
13,
25,
19,
-19,
0,
14,
-24,
-42,
-17,
-9,
-39,
-35,
-39,
31,
-62,
-20,
57,
2,
38,
27,
-15,
-38,
3,
-11,
-3,
-19,
58,
23,
-28,
-24,
-6,
10,
31,
-38,
-22,
-25,
-22,
-44,
-45,
-23,
0,
19,
35,
17,
6,
-17,
12,
-8,
-21,
52,
-6,
-37,
-48,
-56,
64,
-40,
-17,
45,
1,
-19,
-19,
-22,
-9,
-32,
3,
3,
41,
38,
56,
2,
-26,
-4,
26,
20,
-20,
15,
57,
59,
13,
-6,
-20,
46,
12,
25,
25,
15,
28,
-58,
-12,
-19,
-42,
7,
1,
67,
9,
17,
-42,
-33,
-54,
-21,
84,
-7,
-39,
-24,
-28,
1,
29,
-18,
21,
-36,
-32,
-72,
37,
-5,
-7,
-40,
8,
76,
-41,
36,
34,
40,
-12,
38,
-29,
-36,
-68,
8,
37,
-7,
-48,
-30,
54,
-64,
40,
65,
42,
25,
26,
0,
16,
-26,
-9,
-18,
-65,
18,
-18,
51,
-26,
5,
19,
-14,
-8,
31,
-25,
-38,
-19,
-52,
19,
-20,
-32,
0,
-45,
-38,
-53,
66,
-20,
-7,
77,
-48,
24,
4,
78,
-9,
44,
-3,
-27,
13,
-34,
2,
28,
22,
-42,
24,
30,
20,
-30,
-17,
-16,
15,
-39,
18,
37,
-42,
19,
-6,
7,
-24,
2,
-8,
5,
-25,
-17,
55,
-24,
38,
-41,
10,
-34,
-14,
-30,
3,
-19,
-3,
-15,
4,
4,
3,
-14,
11,
20,
-9,
-16,
-20,
3,
45,
-22,
-44,
0,
-16,
12,
29,
37,
3,
-6,
-34,
-12,
0,
-26,
30,
-8,
13,
-57,
11,
-16,
17,
17,
30,
34,
21,
40,
51,
1,
-17,
25,
53,
-32,
51,
-13,
-14,
14,
23,
-18,
-25,
-2,
-9,
70,
55,
19,
15,
-3,
33,
-47,
3,
0,
9,
63,
-9,
29,
1,
6,
-8,
-22,
29,
-33,
-11,
-19,
-44,
-53,
38,
-27,
5,
-1,
10,
14,
31,
-1,
-42,
-38,
-58,
-18,
-12,
-35,
-9,
6,
14,
40,
9,
-9,
-14,
-19,
-21,
17,
41,
-29,
-16,
-21,
36,
27,
8,
-1,
9,
-23,
-21,
19,
-44,
16,
-11,
29,
32,
12,
12,
62,
20,
23,
38,
-10,
-17,
30,
25,
-64,
-40,
-2,
52,
3,
27,
-20,
39,
-11,
6,
46,
-37,
45,
16,
5,
-24,
4,
-16,
-45,
-7,
-10,
33,
-75,
-47,
-24,
-19,
-22,
-17,
13,
0,
-34,
-3,
39,
-33,
15,
-25,
-19,
42,
-1,
54,
-24,
27,
-8,
-10,
25,
-15,
-21,
35,
-20,
-46,
-9,
-41,
0,
71,
-15,
0,
-27,
23,
1,
-3,
-33,
-2,
-15,
8,
-30,
-8,
-48,
-14,
31,
7,
34,
10,
-9,
7,
22,
21,
-20,
14,
-2,
-14,
-16,
-5,
1,
42,
19,
6,
-17,
-27,
21,
-32,
-10,
-3,
3,
-31,
2,
15,
-89,
56,
9,
-18,
14,
46,
39,
-34,
16,
0,
4,
33,
34,
18,
-53,
71,
-31,
2,
-10,
42,
0,
27,
-13,
-56,
-22,
0,
49,
-5,
-34,
-12,
-30,
-48,
-23,
19,
-19,
49,
83,
-3,
11,
3,
16,
-5,
-33,
43,
-4,
-12,
-57,
48,
34,
-5,
-22,
48,
17,
26,
-26,
4,
17,
-35,
23,
24,
-26,
-16,
-21,
19,
5,
-33,
6,
22,
-37,
-8,
-5,
-26,
0,
3,
-12,
15,
-12,
28,
5,
0,
1,
-5,
24,
47,
-10,
-1,
44,
3,
18,
44,
-31,
-15,
-18,
40,
11,
-35,
-36,
33,
-14,
-50,
0,
22,
-1,
-15,
-18,
2,
-41,
-35,
-37,
9,
20,
-20,
-11,
-4,
-11,
3,
34,
12,
-18,
42,
14,
47,
-7,
-15,
-36,
22,
-33,
25,
-47,
29,
36,
-18,
25,
-8,
-14,
-49,
-5,
7,
3,
-27,
-40,
-34,
17,
-46,
20,
49,
8,
-54,
35,
49,
-34,
22,
16,
-40,
-23,
-7,
-50,
-41,
-7,
22,
20,
1,
26,
-6,
17,
-1,
35,
-54,
11,
-25,
-17,
26,
9,
-29,
-7,
8,
-20,
-20,
-28,
12,
7,
45,
-25,
8,
-9,
30,
-54,
0,
41,
-42,
-5,
-26
] |
Marston, J.
The defendants received a deed of a small steamer from Allen Fick to secure them for signing a bond to release a vessel from seizure on a libel. If the suit was defeated and they saved harmless from liability on the bond, they were to re-deed, and in case a good opportunity occurred to sell, and Fick should desire a sale, they were to sell, reserve out of the proceeds sufficient to indemnify them, ,and also pay a certain mortgage. After this defendants took possession of the boat; they ran her awhile, but not paying expenses they laid her up; they made certain repairs to the boat, paid the cost thereof, and also paid for supplies and other expenses. The conveyance to defendants was made in the summer of 1873, and in the spring of 1874 they sold the boat to a party in Duluth for $1900, payable $550 cash, $500 in six months, with an endorser, and one note for $850 payable in eighteen months with an endorser. These notes were made payable to defendant Haynes. A part of this second note has been collected, the balance of the two notes has not, and a judgment, against the maker has been recovered, and also against the endorser on the-$500 note. The defendants have not yet received sufficient to reimburse them for the amounts they have paid.
This action is brought to recover the price or value of the boat. The declaration contains several counts; one alleging authority to sell for cash, for breach that the sale was on credit; second, selling on credit for worthless paper, when they ought to have sold for cash or good paper; third,, that they should have exercised due care in the sale, but did not in that they accepted notes of no value; neglect to account, etc.
On the trial a number of questions were raised as to the-admissibility of certain testimony, none of which we consider of any importance. In a ease like the present considerable latitude must be allowed in the examination of witnesses, and much must be left to the discretion of the-trial judge, and so long as that discretion is fairly exercised, and no evidence is admitted or rejected, to the evident prejudice of the parties, the rulings must be sustained.
The charge of the court was so eminently fair and proper-in this case, and presented so clearly to the jury the real questions at issue, under what circumstances they could or could not find the defendants responsible, and supported as it was by abundant testimony, that we give it herewith and add that we discover no error therein:
“ The last clause in the contract provides that Haynes and Runnels may sell if they have a good opportunity, and after selling reserve enough to indemnify themselves against the damage which may result on account of having signed the bond and to pay the Neal mortgage. Now the complaint is, not that the vessel is sold, or the price agreed to be paid, but the complaint is made simply as to what the defendants-took for the boat. If Fick or Leonard counselled or advised the taking of the paper that was taken, they cannot now be heard to complain about that. Or, if Haynes and Runnels acted in á careful, prudent, honest, and business-like manner, and with such care and good judgment as a reasonable man should, then they have done all they should be expected or required by the other. If that Haynes took the notes in his own name, does. not, of itself, make the defendants liable. They had an interest in the matter and might very properly take the notes in their own name and hold them reasonably at least.
As to the payments alleged to have been made by the defendants, and which they claim should be allowed them under our State law, this boat would be liable for supplies, materials and repairs furnished and done to her, and such bills the defendants had a right to pay, but of course only such bills as were fairly and honestly outstanding against her, and only such as have been fairly proved should be allowed; and, of course, such bills as Fick or Leonard contracted to be paid, cannot be complained of now on being paid by them. As to the amount said to have been paid for materials, repairs, etc., during the time that Haynes and Funnels had the deed of the boat, if by their own negligence, misconduct, or misuse of the boat that is ref,erred to, they became necessary, they should not have such amount allowed them, but if those repairs were directed by Fick or Leonard, or if they were reasonably necessary to keep her up in proper order, then the defendants might very properly pay for them out of the earnings and proceeds of the boat. As to the cost of repairs at the time of the sale, if’ those repairs were directed by Fick or Leonard, or if Leonard made the contract to sell, and under that contract agreed that the repairs should be made, then they shouldn’t now complain if those repairs were reasonably necessary to put. the boat in salable condition. They might very properly ■have that done, for they certainly would have been -fairly censurable if they had allowed the boat to rot or sink at the-wharf.
It is further claimed that the defendants were not diligent in their efforts to collect, so, as our Supreme Court say, they who have bargained to render services for another, undertake for good faith and integrity, but he does not agree that he will commit no errors. If negligent, bad faith or dishonest, he would be liable to his employer, but if he is guilty of neither of these, the employer must submit to such incidental loss as may occur in the course of the employment.”
The case seems to have been fairly tried and all material-questions raised properly submitted, and if any error was committed, it must have been by the jury, over whose verdict this court exercises no supervision.
The judgment will therefore be affirmed with costs.
Cooley and Campbell, JJ. concurred. | [
15,
33,
1,
26,
3,
-27,
33,
-11,
44,
0,
37,
5,
2,
4,
-13,
-11,
7,
-31,
33,
-9,
-3,
-47,
-14,
-34,
2,
-32,
26,
7,
-10,
-5,
11,
26,
-26,
13,
-6,
33,
-20,
-20,
3,
-62,
-7,
0,
30,
49,
38,
22,
24,
-38,
15,
-34,
26,
-43,
12,
-22,
-24,
1,
12,
-12,
-32,
-11,
4,
-57,
-1,
8,
-37,
-49,
-9,
0,
8,
-16,
-26,
7,
38,
26,
12,
-15,
-11,
24,
-22,
-7,
-9,
-12,
19,
-84,
-13,
10,
-6,
-8,
54,
-12,
1,
2,
-13,
4,
-2,
53,
-3,
2,
8,
45,
-1,
-23,
-35,
7,
0,
18,
-22,
-27,
-17,
33,
2,
61,
34,
-16,
-5,
-79,
-40,
-50,
-4,
23,
0,
-3,
-12,
-15,
-7,
18,
-41,
1,
9,
9,
25,
-54,
-54,
69,
14,
-14,
-45,
0,
18,
-27,
5,
-28,
-31,
-5,
-31,
43,
4,
-2,
0,
-23,
-47,
-15,
18,
-15,
39,
-1,
25,
-58,
18,
-40,
21,
-17,
-13,
-33,
-15,
2,
53,
-36,
21,
40,
9,
-7,
-9,
19,
2,
8,
4,
-23,
-1,
-2,
-3,
-35,
-23,
38,
-20,
-12,
56,
1,
-2,
23,
33,
1,
-44,
-14,
-24,
-1,
5,
-14,
10,
-9,
-9,
-17,
-43,
37,
0,
-14,
15,
2,
27,
27,
-12,
-13,
30,
-58,
-27,
51,
-36,
7,
-24,
-43,
14,
-26,
-3,
6,
-52,
-43,
-20,
21,
40,
-2,
-43,
40,
-23,
-16,
-45,
-44,
1,
38,
19,
-15,
-50,
14,
-19,
-2,
21,
-54,
-2,
6,
-15,
52,
-61,
-19,
-15,
52,
-26,
4,
9,
-4,
-44,
22,
10,
24,
-42,
-21,
-2,
-27,
28,
-1,
-2,
30,
30,
-21,
9,
3,
-24,
-20,
-54,
12,
-3,
24,
41,
-9,
6,
71,
-37,
-21,
13,
19,
-13,
-1,
36,
18,
24,
-30,
13,
10,
-14,
-6,
9,
11,
-23,
-37,
-8,
3,
7,
-3,
-34,
-6,
0,
-13,
-35,
23,
13,
-33,
26,
54,
-30,
-17,
-4,
-56,
-12,
9,
-11,
5,
-1,
12,
36,
-28,
6,
43,
-16,
-10,
-22,
-38,
-58,
21,
26,
-39,
21,
11,
-2,
29,
-4,
-56,
-36,
-1,
11,
-59,
-26,
-21,
-40,
39,
-7,
-7,
-5,
37,
16,
22,
2,
38,
47,
20,
48,
-6,
77,
4,
22,
-29,
30,
2,
43,
39,
-7,
-20,
-23,
-16,
-24,
10,
4,
41,
0,
-13,
21,
33,
36,
28,
-14,
-42,
-47,
5,
-47,
11,
9,
17,
6,
-28,
-30,
-7,
-55,
-32,
30,
19,
3,
-17,
-80,
-15,
27,
5,
9,
6,
-7,
-23,
42,
0,
-1,
-75,
50,
-18,
29,
-31,
48,
18,
36,
0,
32,
-14,
91,
19,
-18,
-23,
-39,
31,
24,
-11,
-1,
3,
-28,
49,
13,
26,
39,
19,
6,
12,
-22,
-8,
5,
3,
37,
-7,
13,
18,
-9,
39,
8,
38,
3,
-23,
16,
18,
0,
11,
31,
13,
-8,
-11,
21,
-40,
23,
-30,
-25,
18,
29,
-27,
-37,
19,
-1,
1,
-3,
-8,
17,
42,
5,
18,
-19,
-4,
-19,
-33,
34,
-8,
17,
-9,
14,
4,
-2,
-12,
-25,
-5,
2,
36,
27,
-22,
-21,
6,
-13,
20,
26,
14,
58,
34,
22,
11,
-12,
-6,
-13,
27,
17,
-20,
-1,
45,
23,
-20,
-46,
-22,
-17,
9,
48,
-18,
-16,
-76,
4,
-2,
-37,
-70,
-16,
0,
10,
21,
47,
-25,
-24,
11,
25,
14,
-56,
-20,
-3,
-14,
24,
30,
-7,
9,
37,
29,
-6,
39,
-9,
-27,
25,
-16,
-26,
-10,
16,
-4,
38,
-16,
29,
-102,
0,
-28,
3,
-13,
-12,
32,
-41,
-12,
-29,
-1,
-15,
18,
-76,
-37,
-16,
-45,
-42,
-4,
-5,
53,
-31,
5,
-10,
10,
-17,
-28,
-34,
-20,
22,
22,
-23,
13,
22,
-12,
-10,
5,
20,
9,
-17,
33,
-34,
47,
38,
-9,
7,
41,
11,
19,
18,
-23,
-17,
9,
0,
-18,
-17,
11,
27,
11,
-23,
-45,
-5,
4,
-29,
-28,
-4,
42,
-51,
36,
-61,
76,
-34,
17,
10,
4,
-4,
-23,
4,
8,
-31,
-22,
6,
-31,
-10,
1,
13,
13,
20,
23,
-30,
2,
10,
-54,
23,
-16,
-20,
-1,
41,
30,
34,
-9,
-26,
5,
28,
-80,
32,
12,
25,
-41,
-27,
58,
25,
31,
27,
2,
13,
0,
22,
12,
0,
-22,
-7,
9,
54,
6,
-9,
16,
7,
23,
36,
41,
-13,
1,
50,
-48,
-18,
36,
-7,
34,
-17,
-1,
-4,
-20,
-19,
46,
38,
-6,
31,
-19,
-1,
-7,
-59,
-30,
0,
-22,
28,
-16,
-4,
-22,
44,
29,
-23,
-17,
14,
27,
12,
14,
30,
2,
8,
-39,
29,
-21,
-27,
-7,
-15,
-15,
42,
23,
-6,
29,
26,
4,
42,
9,
49,
25,
33,
-19,
-42,
-15,
-37,
-53,
-1,
50,
-29,
-29,
-12,
6,
-46,
-53,
13,
-19,
-41,
-15,
-15,
-61,
6,
6,
45,
19,
9,
19,
0,
-60,
-70,
13,
-9,
-29,
17,
-8,
34,
8,
18,
-6,
-9,
74,
-58,
-7,
13,
35,
1,
0,
-26,
-28,
-15,
40,
-3,
-15,
0,
-22,
10,
-35,
-7,
-15,
-17,
-25,
11,
7,
24,
-38,
-24,
35,
-40,
38,
11,
22,
3,
-12,
-1,
2,
-17,
6,
32,
-35,
-21,
32,
-7,
-6,
29,
-18,
38,
-18,
-40,
-25,
-11,
15,
-2,
-12,
-9,
-5,
-26,
-22,
0,
9,
-25,
11,
-68,
-13,
6,
12,
46,
-1,
0,
0,
-29,
10,
36,
24,
-25,
-11,
-35,
38,
14,
28,
15,
30,
16,
34,
15,
-58,
35,
23,
12,
-24,
-20,
35,
-5,
8,
42,
-66,
-9,
21,
-4,
-55,
16,
-17,
46,
-2,
24,
-62,
79,
-16,
16,
5,
-2,
54,
0,
-20,
4,
-52,
-5,
9,
68,
7,
6,
0,
-60,
1,
-28,
45,
62,
14,
17,
-39,
-16,
-6,
-19,
-18,
4,
10,
11,
27,
-32,
-15,
-20,
16,
33,
-24,
14,
-35,
-5,
67,
33,
0,
7,
11,
-12,
-18,
-20,
15,
26,
41,
10,
34,
49,
60,
-37,
20,
-6,
-3,
-32,
14,
-12,
11,
14,
-4,
18,
-4,
-29,
9,
-4,
-4,
31,
-27,
2,
-26,
-23,
-6,
23,
-16,
-62,
-13,
8,
3,
0,
28,
31,
-36,
42,
51,
-16,
-11,
-2,
-6,
13,
-16,
2,
-53,
-40,
21,
-52,
-26,
5,
-4,
-12,
14,
12,
0,
13,
34,
17,
-67,
-50,
-24,
11,
15,
-32,
23,
-27,
13,
39,
28,
60,
4,
1,
36
] |
Campbell, J.
In May, 1878, a petition for the voluntary dissolution of the Centreville Knit Goods Manufacturing-Company was filed by all the directors, who also appear to-have owned a majority of the stock, and under this petition a decree was made on the 14th of February, 1879, dissolving-the corporation and appointing a receiver.
Three referees were afterwards appointed by agreement' of the various persons interested, and they filed their report October 11, 1879, and judgment was entered on this upon the 5th of November, 1879. The receiver afterwards made-his final report, and a decree settling the accounts was made-January 6th, but formally entered January 26, 1881.
From this order an appeal is taken by certain dissatisfied-stockholders, who claim a right under the appeal to have the-entire proceedings reviewed. It is claimed on the other-hand that no appeal lies to this court in the matter, and that the proceedings are not subject to the rules applying to suits-in chancery.
The only statute relied upon in aid of the appeal is the-general chancery statute which declares that “any complainant or defendant who may think himself aggrieved by the decree or final order of a circuit court in chancery, in. any cause, may appeal therefrom to the Supreme Court.” Comp. L. § 5179. This is the same provision formerly-existing when we had a separate court of chancery. R. S. 1838, p. 379.
It is admitted the order appealed from is in the nature of a final order, and made by a court of equity, but it is claimed^ by respondents that the proceeding is not in its main feature a litigious proceeding or suit, but is a special statutory proceeding in a class of cases not within the general range of equity.
To understand the character of this proceeding we must consider the authority of equity over corporations under its general powers. It is well settled that the power to dissolve corporations for cause was always legal and not equitable. This is familiar doctrine and never disputed. Attorney General v. Bank of Michigan Har. Ch. 315; Atty. Gen. v. Utica Ins. Co. 2 Johns. Ch. 371; Atty. Gen. v. Bank of Niagara Hopk. 354; Verplanck v. Mercantile Ins. Co. 1 Edw. Ch. 84; Same v. Same 2 Paige 438.
This being so, laws were passed in New Tort at an early day, and subsequently included in their Revised Statutes for two purposes — first, to provide for suits against corporations in equity to restrain improper acts and to dissolve them in certain cases on the prosecution of the attorney general or injured persons interested as creditors; and second, to enable the directors or other managers of corporations to proceed by petition to have them dissolved whenever by reason of insolvency or for other cause the corporate business could not be carried on further to the advantage of those concerned. These proceedings had similar provisions concerning the’ manner of winding them up after dissolution, but, differed entirely in their general purpose; the former being adverse to the corporate interests, and a proceeding in the ordinary character of a bill of complaint or information by a complaining party against the corporation as defendant, while the latter was on behalf of the corporation itself, to become relieved from its corporate responsibility in the future.
In the legislation of this State these provisions were not. brought in at the same time. The court of chancery was-organized first with none but usual equitable jurisdiction. On the 21st of June, 1837, an act was passed “to provide-for proceedings in chancery against corporations, and for other purposes,” which gave power upon filing a bill or petition by tbe attorney general in aid of quo wanramto proceedings to restrain corporations and others from exercising unlawful franchises; and also to reach insolvent banks or banks exercising unlawful powers; and to dissolve them in cases of insolvency. This statute, while it provided for receivers in certain cases, gave them no special powers, and they were on the footing of ordinary chancery receivers. Laws 1837, p. 306; Verplanck v. Mercantile Ins. Co. 2 Paige 438.
The Kevised Statutes of 1838 left this statute in force-On the 15th of April, 1839, a new law was passed not superseding the law of 1837 but providing for the voluntary dissolution of corporations, and giving to the receivers appointed under the old law similar powers - to those provided for on voluntary dissolutions. These receivers became vested with all the rights and property of the corporation for every purpose except carrying on its business, and were not appointed until the corporation had been dissolved, and ceased to exist. Laws 1839, p. 96, §§ 8, 9, 10; Verplanck v. Mercantile Ins. Co. supra.
The Pe vision of 1846,which is the same as our present Compiled Laws, incorporated in separate chapters the provisions for proceedings against corporations, and those for voluntary dissolutions, as chapters 117 and 118 (Comp. L. chapters 206, 207). Chapter 118 includes so much of the statute of 1839 as relates to voluntary dissolution, and does not include the latter part of that act which relates to adverse proceedings.
For the present purpose two features only of this statute become material — viz., the appointment of receivers on ■dissolution, and the reference of controversies by the receiver.
The first thing to be done is to determine whether the corporation should be dissolved. This is not made by the statute to depend on any legal question. It may be done whenever it shall “appear to the court” that “for any reason a dissolution thereof will be beneficial to the stockholders, and not injurious to the public interest.” § 6593. And as already stated, as soon as the decree is entered it is provided that “such corporation shall thereupon be dissolved, and shall cease.” Id.
All the subsequent proceedings go upon the basis that ■there is no longer any corporation, and they are intended to secure the collection and distribution of the assets in complete analogy to proceedings concerning the estates of deceased persons, and concerning insolvent estates. The receivers are put by two different sections on the footing of trustees of insolvents, and it is the insolvent law that gives the rule concerning references, which are to be had under “ the same power,” and with the like effect. See sections 6596 and 6601.
"Whether an appeal lies to review the order of dissolution, or the proceedings on reference, or those concerning the receivers, must depend on the statute. No appeal lies in any case except where given by statute. It is not a proceeding recognized by the common law, and must come within the grant of some express law. This doctrine has been declared by this court, and is equally well settled generally. And it is at least generally true that it will not lie except to review proceedings which may be properly termed judicial proceedings; while in the few peculiar cases where it has been deemed fit to vest courts with supervision ■over other matters, they have not been regarded as coming under the general appellate jurisdiction of courts above those thus authorized to act. Clark v. Raymond 26 Mich. 415; Auditor Glen. v. Pullman Palace Car Co. 34 Mich. 59. The distinction is illustrated in the decisions of the United States Supreme Court under the bankrupt law, where an appeal is recognized as lying to the Supreme Court from decrees of the circuit courts in the exercise of their judicial powers as courts of equity, but not as to matters of bankruptcy alone, where the circuit courts exercise supervisory but not judicial powers in the strict sense over the district proceedings reviewed. Milner v. Meek 95 U. S. 252; Morgan v. Thornhill 11 Wall. 65.
In New York the statutes governing appeals both to the chancellor and to the court of errors, gave the right of appealing from all orders and decrees of the inferior courts,, and did not qualify them by confining them to “causes.”' But under this broad power it was decided that no appeal would lie from matters of discretion, nor from matters not-involving “ some definite rule of law or equity.” Cowen, J. in Rogers v. Hosack's Ex'r 18 Wend. 319 (and see page 330). See also the opinion of the court by Bronson, J. in Rowley v. Van Benthuysen 16 Wend. 369.
In the New York law concerning voluntary dissolutions,, from which ours was borrowed, a specific right of appeal was given to the chancellor from the vice-chancellor, and none to the court of errors unless by implication. Therevisors’ notes to this section express the opinion that the appeal ought to be limited, Appendix, p. 757. And our Legislature, in adopting the New York law nearly verbatijn,. left out the appeal clause altogether. It could not have-been dropped for any purpose except as undesirable. No special provision for appeal was needed in adverse proceedings, because they come within the usual equity methods.
In our view the proceeding up to the point of dissolving the corporation is in no seirse a suit or cause; -and is, as intimated by the Supreme Court of Massachusetts, In re New South Meeting-house vn Boston 13 Allen 491 (see page 513), a proceeding whereby corporations are enabled to surrender their franchises under proper supervision, as they always could in England, but as in this country they cannot otherwise do unless some provision is made by law. We think no appeal lies under the statute.
It was claimed, however, that the references provided for are judicial in their character and involve adverse rights to be litigated which may pass into judgment. However this may be, the appeal is not provided for by statute, and an examination of the laws will show that they have been entirely misapprehended. The reference is a collateral and distinct proceeding, in the nature of an arbitration, and no necessary part of the main -proceedings. Section 6601 provides that the receivers may have such power to settle any matters in controversy, if they choose to do so, by a reference “as is given by law to trustees of insolvent debtors, and the, same proceedings shall be had for that purpose, and with the like effect; and application may be made to any officer authorized to appoint such referees on the application of the trustees of insolvent debtors, who shall proceed therein in the same manner; and the referees shall proceed in like manner and file their report with the like effect in all respects.”' § 6601. The law does not compel them to resort to references..
It will be seen from this that the referees are not appointed by the court of chancery, or under its supervision, but by application not to a court, but to an “officer.” By §§ Y283 and Y199, referees for trustees in insolvency may be appointed by any circuit judge or circuit court commissioner, of the county, whether he is the officer appointing the trastees themselves or not. By the Revised Statutes-' of 1838, which were in force when the law was first framed,, application might be presented to a common-law judge or a notary public, but not to the chancellor. R. S. 1838 p. 551. The law has always required such reports to be filed in the office of the clerk of the circuit court for the county (Comp. Laws §§ 7287, 7289; R. S. 1838 pp. 610, 611); and every report is made conclusive on the rights of the parties, if not-set aside by the court. This means necessarily the circuit court, where a rule is entered by the clerk for appointing-the referees on filing the officer’s certificate, or the written agreement of the parties. Comp. L. § 7287; R. S. 1838 p. 610.
The circuit courts now have equitable as well as legal jurisdiction, but the clerk when acting on the chancery side is usually termed the register; and moreover, as this appointment is originally made by some officer out of court, there is nc practice not statutory which would recognize the entry of an equity rule unless in an existing cause or proceeding. But it is enough to say in this respect, that when this law was adopted the circuit courts had no equity powers, and there was no provision for action on references by the chancery court or register.
"We need not consider whether the laws applicable to- references of cases pending in circuit courts apply or not to such independent references as that now in controversy, where the court has nothing to- do-with the appointment except to have it entered after it is made by an officer out ■of court. As the reference is no part of the chancery pro-needing, and as that proceeding itself is not appealable, we have nothing before us to review. We have deemed it proper to refer somewhat at large to the practice, because this is the first case in which the point has arisen, and we have found no precedents for any such appeals either in this State or in the other states having similar laws.
The appeal must be dismissed with costs.
The other Justices concurred. | [
-5,
-24,
63,
-25,
16,
42,
8,
-44,
4,
39,
-12,
30,
-26,
-1,
-30,
-7,
3,
-6,
-10,
59,
3,
6,
-19,
-51,
-5,
-39,
8,
-24,
35,
0,
-39,
-45,
-41,
0,
11,
-2,
-31,
-6,
5,
-6,
-13,
36,
31,
-22,
0,
-12,
28,
-49,
4,
-13,
52,
-17,
0,
-3,
-2,
0,
9,
42,
5,
29,
24,
-2,
62,
-19,
5,
7,
-47,
16,
-10,
-18,
-27,
-15,
27,
-7,
22,
-76,
33,
-52,
-42,
-27,
-37,
-15,
4,
-47,
-37,
34,
-27,
58,
-9,
52,
17,
-15,
-27,
-24,
-6,
23,
22,
-3,
-6,
74,
24,
-14,
11,
18,
-21,
14,
16,
-2,
4,
5,
9,
-27,
25,
-42,
-24,
-21,
-52,
-28,
5,
-27,
12,
-2,
28,
13,
43,
14,
-5,
11,
-24,
68,
9,
0,
-54,
11,
10,
2,
-3,
-8,
-35,
1,
-25,
32,
14,
0,
-15,
15,
-33,
14,
27,
-49,
-15,
13,
19,
20,
-14,
-34,
4,
-37,
51,
-40,
6,
19,
-5,
-28,
-10,
5,
-26,
3,
-61,
29,
-33,
26,
-37,
0,
-8,
8,
-16,
-46,
-5,
24,
0,
-1,
9,
5,
-20,
-25,
10,
0,
24,
7,
22,
-8,
-31,
6,
-32,
-24,
16,
23,
45,
17,
-12,
-22,
-47,
-17,
-39,
-39,
60,
3,
-5,
29,
1,
12,
-39,
-1,
4,
12,
-41,
-23,
20,
-41,
9,
11,
-21,
47,
-12,
-26,
32,
1,
-25,
-6,
-2,
-28,
15,
-53,
-3,
-32,
28,
-2,
20,
-12,
-30,
14,
21,
-43,
0,
22,
10,
9,
1,
16,
12,
-4,
34,
-19,
8,
-35,
-76,
15,
28,
0,
40,
21,
-37,
31,
-24,
-49,
29,
12,
-39,
3,
13,
-19,
63,
-13,
-13,
-15,
6,
7,
19,
14,
-34,
-42,
6,
0,
-26,
0,
-25,
-37,
-34,
26,
20,
37,
5,
35,
21,
30,
-26,
-31,
-1,
-10,
-21,
21,
-44,
-4,
11,
16,
-80,
-41,
-12,
-62,
29,
-2,
-1,
-41,
49,
0,
-14,
16,
21,
23,
16,
1,
3,
46,
-5,
14,
28,
-27,
2,
0,
-29,
35,
15,
-14,
16,
40,
28,
17,
53,
-5,
14,
0,
-22,
-10,
-7,
-20,
-10,
-60,
27,
29,
-32,
7,
-21,
10,
16,
-6,
-5,
-16,
-61,
12,
51,
-6,
17,
-1,
32,
5,
-43,
-37,
3,
31,
-10,
58,
17,
-17,
1,
3,
-71,
-11,
-55,
8,
-9,
-14,
22,
-16,
40,
-1,
-15,
33,
-75,
-18,
-25,
38,
22,
24,
-62,
23,
24,
5,
-22,
44,
-3,
51,
-47,
31,
-28,
-58,
13,
29,
19,
11,
28,
44,
18,
-41,
0,
-41,
-9,
-4,
67,
-4,
23,
-14,
11,
-36,
-7,
-33,
15,
11,
3,
2,
-12,
-2,
13,
-47,
-2,
19,
16,
4,
-4,
11,
-42,
-9,
8,
37,
30,
-36,
-25,
7,
51,
-22,
14,
5,
31,
-28,
12,
4,
0,
-23,
52,
-20,
32,
0,
-13,
32,
-5,
13,
49,
-12,
66,
36,
-22,
-32,
-24,
-5,
-7,
-29,
32,
10,
-34,
-27,
6,
23,
-33,
92,
-34,
23,
-17,
-22,
-6,
15,
12,
38,
47,
10,
-10,
-13,
-16,
-40,
14,
-2,
17,
-3,
14,
-30,
24,
33,
-13,
-19,
37,
63,
-4,
-37,
18,
11,
-33,
22,
-55,
34,
24,
13,
-11,
-21,
-49,
25,
6,
10,
61,
-19,
33,
-18,
11,
47,
4,
-2,
37,
0,
7,
-8,
-19,
-45,
-31,
-14,
17,
0,
5,
37,
-42,
17,
8,
-10,
19,
-21,
22,
-4,
44,
-32,
-5,
7,
3,
14,
-18,
-16,
11,
-11,
40,
-43,
5,
-17,
-9,
-15,
27,
23,
45,
46,
7,
6,
34,
9,
14,
-11,
33,
-32,
-38,
-35,
26,
-66,
0,
-18,
1,
4,
-9,
7,
-37,
-2,
3,
-43,
48,
0,
-7,
31,
-56,
32,
23,
-24,
-55,
-28,
-31,
11,
-7,
-28,
-6,
-34,
-7,
26,
-15,
17,
-24,
2,
53,
-9,
21,
-32,
-39,
-60,
10,
-32,
14,
19,
20,
80,
6,
-15,
-14,
48,
-41,
52,
-25,
1,
-41,
-19,
-24,
-27,
11,
6,
7,
-8,
-16,
19,
20,
23,
-19,
27,
42,
11,
-9,
-11,
51,
-22,
-8,
-26,
24,
-13,
25,
0,
19,
37,
3,
65,
38,
-19,
-11,
10,
14,
-22,
-26,
-34,
-4,
26,
-24,
53,
-5,
-4,
-46,
29,
51,
40,
35,
57,
10,
15,
22,
-31,
-62,
-41,
-42,
24,
-6,
14,
44,
-43,
-34,
-3,
18,
45,
12,
-4,
-47,
24,
55,
9,
-22,
-62,
11,
-17,
-14,
7,
-13,
-4,
13,
-31,
-2,
-41,
45,
6,
-21,
25,
-36,
-46,
-13,
11,
-4,
-40,
-4,
-27,
20,
26,
-9,
-25,
-21,
-9,
3,
-1,
-42,
46,
22,
36,
-30,
50,
9,
7,
34,
50,
-9,
19,
53,
-24,
-18,
-34,
-37,
-21,
25,
-38,
11,
-28,
-4,
12,
-24,
12,
-14,
-10,
-32,
9,
-5,
-45,
-16,
4,
8,
21,
21,
36,
-33,
-69,
-32,
7,
4,
-40,
36,
54,
38,
-13,
-24,
-4,
-9,
-18,
-37,
-2,
-20,
-49,
-14,
-3,
-15,
26,
4,
-39,
26,
20,
-22,
28,
11,
-13,
-30,
-25,
-20,
-52,
16,
66,
-33,
-58,
-27,
-20,
-31,
-8,
13,
24,
11,
-47,
-12,
38,
7,
65,
20,
-30,
-38,
27,
26,
-47,
48,
-1,
57,
-42,
-56,
-24,
-24,
-16,
41,
-13,
-6,
13,
-34,
-27,
-19,
28,
-23,
-1,
-19,
-66,
-18,
-1,
49,
21,
44,
30,
-11,
-22,
0,
-13,
-57,
-35,
3,
-13,
-13,
26,
-10,
-39,
-71,
-2,
-40,
0,
-23,
2,
-9,
-10,
40,
-5,
-15,
54,
63,
18,
8,
13,
-18,
-29,
9,
42,
10,
-1,
13,
-38,
11,
-4,
-37,
2,
12,
21,
60,
21,
-39,
35,
2,
43,
-1,
-2,
-1,
-9,
-13,
67,
28,
35,
21,
8,
30,
-20,
-13,
35,
-1,
15,
49,
34,
29,
35,
12,
-8,
0,
-22,
-21,
-34,
-44,
-23,
48,
-60,
48,
-25,
4,
-23,
13,
-35,
20,
11,
10,
-49,
-36,
-37,
37,
14,
-10,
-17,
-20,
-31,
-29,
10,
5,
-18,
33,
39,
-21,
15,
-13,
-21,
34,
-27,
-21,
12,
-20,
-23,
-8,
-5,
27,
-60,
22,
0,
61,
-31,
-2,
30,
1,
-38,
25,
23,
29,
-6,
-13,
24,
39,
16,
4,
-30,
-11,
25,
-1,
-4,
45,
-36,
-7,
-1,
32,
-22,
-20,
22,
-25,
49,
-37,
9,
43,
93,
2,
-39,
11,
19,
-34,
-41,
23,
14,
-1,
1
] |
Campbell, J.
Respondent was indicted for an assault with intent to murder one George C. Morris. The evidence, and respondent’s statement in her own behalf, showed that she went to his place of business having a loaded revolver with her, and that they had some conversation ivhich made her angry, and she shot him in the head with a bullet, which produced a surface injury but no dangerous harm. The jury found her guilty of an assault only, without the felonious intent charged. She now brings the case before us on exceptions, claiming the jury were not properly instructed-
The objections taken are in substance that the court charged them that if they believed the evidence they must find her guilty of an assault, and refused to charge on a theory that she might be found in a mental condition which would involve no guilt.
Upon the first question the exception can only be maintained on the theory that the jury may disregard the law and the judge should so leave the case in their hands. The argument before us took the broad ground that it was the right of the jury, if they saw fit, to find there was no assault.
In this State in criminal as well as in civil cases, it is the duty of the court to instruct the jury upon the law, and it is the duty of the jury to accept the ruling. Hamilton v. People 29 Mich. 173. It is no doubt in their power to disregard evidence, and to acquit persons whom they know to be guilty. The judge in this case did not dispute but admitted they had such power, but he told them at the .same time what their duty was.
There is no room for discussion on the question whether intentionally shooting a person with a pistol loaded with ball is an assault. It would be absurd to spend time upon it. The fact was not only shown by evidence on which there was no conflict, but stated by the prisoner herself to the jury. The only question which could arise was as to the felonious intent and that the jury found in her favor.
There was no evidence or claim of insanity. But a charge was ashed in this language, and refused:
“ If the jury find from the evidence that defendant by reason of the immediate conduct of Morris toward her or the relations which had existed between them, the late conduct of Morris in breaking up those relations to a more or less extent, the affection she had for him, the jealousy excited in her by the reports which came to her about his going with another girl, his treatment of her about it when questioned, and the various other circumstances of the case, was in fact at the time of and just previous to the shooting without control of her will, then she is not guilty of an offence, and she should be acquitted.”
The facts referred to as appearing on the trial were that Morris and defendant, although not living together in one house, had for some time had illicit relations at her various places of abode, and he had on some occasions and quite recently treated her unkindly, and used more or less personal violence, on Monday, July 19, 1880, which was the day before the shooting. On that Monday, according to her statement, she told him he would never whip her any more, and on that same day she purchased the revolver. Her statement is that when she visited the store of Morris it was with the intention of bidding him good-bye, and that something which he said, but which.she does not state, angered her and she shot him. Morris corroborates' her story as to1 the purpose of her coming; and states that he desired her to leave the office, but she was unwilling to do so without his sitting down, which he did. She asked him with whom he went to the Cleveland races, and he told her it was none of her business. She said he went with a woman whom she named, and would make it her business, and thereupon shot him. He stated on cross-examination that he was very angry when she came in. and used harsh language.
There can be no doubt that Morris’ conduct was such as to be very offensive and exasperating, and that respondent was naturally made angry and excited by it. The illicit character of their relations would not tend to lessen the excitement. ■ But passion and insanity are very different things, and whatever indulgence the law may extend to persons under provocation, it does not treat them as freed from criminal responsibility. . Those who have not lost control of their reason by mental unsoundness are bound to control their tempers and restrain their passions, and are liable to the law .if they do not. Where persons allow their anger to lead them so far as to make them reckless, the fact that they have become at last too infuriated to keep them from mischief is merely the result of not applying restraint in season. There would be no safety for society if people could with impunity lash themselves into fury, and then do desperate acts of violence. That condition which springs from undisciplined and unbridled passion is clearly within legal as well as moral censure and punishment. People v. Finley 38 Mich. 482; Welch v. Ware 32 Mich. 77.
The transaction was one of those unfortunate crimes which are too often the sequel of such relations as these parties occupied; and the bad conduct of the party injured cannot change the bearing of the facts against the prisoner beyond the indulgence which the jury seems to have yielded to the provocation and circumstances as affecting the murderous intent. They certainly went as far as they could go, without leaving the law out of view. The exercise of compassion to those who have broken the law may have some place in measuring punishment, but cannot properly prevent conviction.
There was no error in the proceeding, and it must be certified to the court below that judgment should be rendered accordingly.
The other Justices concurred. | [
-2,
-5,
-21,
1,
-42,
-16,
-44,
30,
-44,
32,
-15,
46,
5,
-33,
9,
4,
-14,
2,
36,
11,
19,
-27,
-46,
15,
-32,
-17,
22,
21,
-21,
4,
34,
50,
-17,
0,
5,
-7,
-20,
0,
40,
4,
6,
37,
-25,
33,
9,
-12,
35,
-9,
-2,
-15,
16,
-53,
6,
19,
-39,
-44,
20,
27,
24,
29,
49,
-27,
-70,
-33,
-31,
-65,
31,
-9,
-40,
0,
-4,
-38,
-24,
-30,
3,
9,
-21,
-33,
8,
-19,
-54,
3,
11,
20,
5,
0,
-6,
-5,
-8,
-22,
-17,
18,
-60,
0,
23,
38,
27,
10,
25,
0,
5,
23,
-29,
49,
-34,
16,
-23,
4,
35,
20,
-12,
30,
24,
4,
-41,
-41,
14,
-1,
-66,
-7,
50,
44,
27,
10,
35,
-24,
-60,
-34,
50,
-32,
4,
18,
23,
-18,
-78,
-3,
-20,
31,
22,
20,
-29,
28,
20,
30,
6,
31,
-52,
15,
-30,
27,
-26,
-7,
-32,
-2,
-20,
-68,
41,
-37,
3,
11,
0,
-10,
7,
-14,
-13,
-11,
-32,
-39,
-10,
-46,
-29,
8,
25,
41,
57,
20,
-69,
-58,
0,
-2,
23,
7,
7,
32,
0,
9,
-26,
13,
19,
36,
-7,
14,
-40,
-34,
53,
50,
3,
36,
14,
-11,
62,
-10,
-48,
-33,
-5,
-4,
-34,
11,
30,
-37,
-9,
47,
-36,
-1,
-34,
-3,
-39,
-26,
-33,
13,
-59,
-34,
19,
65,
17,
-105,
-10,
18,
-52,
-15,
17,
10,
-46,
1,
-32,
-29,
11,
-12,
-3,
-25,
-39,
15,
27,
4,
18,
21,
42,
28,
-25,
53,
11,
-5,
29,
67,
10,
-4,
41,
-18,
27,
4,
-38,
41,
-2,
27,
-51,
32,
15,
8,
-30,
3,
29,
-1,
7,
91,
-14,
-37,
-2,
46,
0,
-23,
4,
34,
-9,
43,
8,
-58,
-77,
-21,
-3,
2,
50,
-44,
-24,
14,
16,
46,
48,
-16,
-45,
17,
45,
39,
55,
-23,
21,
15,
44,
10,
-28,
-31,
0,
28,
-11,
38,
49,
-5,
16,
-12,
4,
-36,
-47,
-52,
-7,
-16,
-38,
-43,
-14,
-100,
-74,
6,
-9,
49,
21,
29,
-7,
30,
11,
28,
23,
-23,
-11,
-8,
3,
-3,
4,
52,
-6,
10,
-77,
-33,
-42,
-16,
0,
-14,
-12,
-14,
-3,
19,
23,
-22,
-19,
17,
17,
5,
-2,
-46,
31,
-85,
12,
44,
5,
-70,
-39,
-9,
-59,
42,
58,
-12,
0,
12,
-12,
26,
49,
-18,
2,
30,
26,
-50,
23,
33,
-46,
8,
14,
-40,
-40,
-67,
-7,
13,
24,
-8,
12,
22,
47,
-33,
-42,
-64,
-44,
17,
-4,
-32,
38,
34,
29,
28,
2,
-35,
-49,
16,
56,
-1,
30,
-1,
49,
-41,
-16,
-29,
-28,
-4,
10,
-41,
19,
-18,
0,
-24,
15,
-24,
-33,
33,
26,
12,
-27,
-27,
-35,
39,
-3,
-15,
12,
28,
25,
-20,
27,
-43,
0,
-22,
6,
41,
-19,
0,
16,
-30,
-21,
-48,
-31,
5,
67,
-9,
-18,
-52,
13,
-12,
35,
-19,
-6,
18,
4,
18,
16,
48,
-8,
-22,
4,
39,
14,
-6,
-8,
-11,
-4,
-48,
50,
-37,
11,
-16,
-30,
26,
-44,
9,
63,
17,
-48,
-9,
-2,
-10,
-1,
-8,
35,
2,
53,
-9,
33,
51,
-7,
-18,
-50,
5,
-13,
-44,
16,
-39,
-24,
-1,
-7,
-23,
16,
10,
2,
1,
11,
-43,
-57,
-36,
68,
55,
-13,
6,
59,
24,
-41,
-56,
47,
-32,
8,
3,
29,
0,
-43,
3,
-28,
-5,
12,
37,
20,
46,
37,
-18,
12,
-5,
0,
-39,
-23,
8,
-46,
6,
43,
35,
46,
-19,
-9,
-11,
44,
-41,
36,
23,
-31,
8,
-66,
-10,
39,
51,
-23,
28,
-5,
-29,
-12,
46,
9,
-73,
6,
7,
-52,
-3,
-34,
-12,
48,
5,
-4,
-62,
52,
15,
-51,
-3,
5,
-13,
2,
11,
-2,
20,
40,
-84,
-22,
-14,
1,
-6,
8,
-12,
22,
22,
-32,
-50,
-37,
13,
-36,
-16,
-51,
-26,
3,
6,
5,
-12,
33,
-66,
-63,
-15,
-12,
63,
-59,
23,
11,
3,
-45,
-49,
8,
52,
19,
7,
53,
58,
-45,
33,
-23,
-73,
0,
12,
-17,
-39,
-19,
-5,
-4,
44,
11,
7,
38,
21,
14,
14,
5,
54,
31,
3,
-34,
-20,
-24,
28,
56,
-28,
5,
21,
24,
5,
15,
-23,
-26,
-49,
11,
-20,
39,
55,
-7,
62,
-16,
9,
-2,
0,
57,
18,
16,
-12,
26,
-10,
-68,
35,
35,
-36,
-26,
-2,
23,
-38,
2,
-34,
18,
-27,
-16,
32,
4,
4,
-11,
-1,
-48,
-39,
-10,
50,
-13,
-38,
60,
17,
10,
18,
45,
31,
13,
41,
41,
-52,
-34,
26,
23,
18,
-37,
8,
36,
16,
-26,
8,
-34,
8,
-9,
-15,
13,
-68,
41,
21,
6,
24,
70,
-4,
-7,
23,
24,
-12,
-35,
-65,
20,
3,
-17,
-42,
-15,
-16,
-26,
27,
10,
-2,
-25,
-24,
14,
-10,
-48,
46,
-33,
2,
41,
-2,
-26,
-28,
-61,
-25,
0,
-10,
-12,
12,
-22,
14,
-4,
30,
-46,
85,
6,
1,
-10,
-16,
-23,
14,
-44,
25,
13,
-25,
-5,
20,
31,
11,
-8,
52,
60,
16,
-45,
-21,
-46,
13,
-9,
-18,
5,
-4,
22,
-20,
-15,
-3,
18,
-41,
3,
-43,
-15,
-24,
2,
28,
-18,
52,
-5,
-2,
0,
-7,
-11,
10,
2,
35,
61,
15,
47,
-4,
-12,
15,
11,
47,
47,
20,
-32,
-25,
-27,
-22,
26,
31,
39,
58,
-24,
4,
-25,
-35,
30,
15,
-37,
-29,
50,
-38,
-5,
19,
61,
28,
-34,
61,
-50,
-7,
-56,
83,
1,
-24,
33,
60,
11,
-5,
-31,
-67,
-48,
4,
20,
54,
41,
-12,
-59,
2,
18,
24,
35,
-50,
7,
26,
26,
20,
55,
-23,
52,
35,
-17,
1,
-7,
14,
16,
19,
-7,
88,
-36,
-28,
21,
-36,
-20,
18,
69,
30,
-13,
0,
-2,
-20,
2,
-5,
4,
-19,
15,
-75,
-22,
33,
2,
-26,
0,
-30,
12,
-10,
-36,
1,
-22,
44,
-20,
8,
-22,
4,
-22,
-20,
52,
-2,
-29,
-4,
-6,
18,
-45,
4,
32,
55,
16,
2,
14,
-6,
31,
6,
-4,
-7,
-9,
-12,
2,
-7,
14,
-10,
42,
-31,
-14,
19,
13,
-32,
-18,
-1,
14,
-12,
8,
24,
-20,
-53,
-64,
-14,
11,
59,
-12,
6,
0,
3,
19,
-30,
-6,
18,
-12,
29,
38,
-45,
8,
67,
6,
-35,
-29,
2,
37,
15,
-10,
36,
-28,
9,
-53,
-35,
-33,
22,
-19,
-7
] |
Campbell, J.
Paulus sued Mrs. Nunn and also Maxy C. Allor in replevin to obtain possession of a piano which Allor, as constable, had seized on a replevin in favor of Mrs. Nunn against one Coll. It appeared before the justice that Mrs. Nunn held a mortgage made by one Coll before he sold the piano to Johnson and Mahoney, from whom Paulus purchased, and that both they and Paulus knew of this mortgage.,- Upon this there was no dispute. There was some room for controversy on some later dealings between Mrs. Nunn and Coll, which would have had a bearing on the amount, but not on the existence of Mrs. Nunn’s mortgage. Under these circumstances the justice rendered judgment in favor of Paulus against both defendants for the whole property, and this was affirmed at the circuit.
There can be no question that this judgment is wrong, and that in the absence of any waiver by Mrs. Nunn, and of any finding by the justice of the value of her interest, she should have judgment of return. If she recovers the property under the judgment Paulus can pay her mortgage, and get back the piano. If not then she can recover on the replevin bond her real interest with such other items as in law belong to her.
The judgments of the circuit and justice’s courts must be reversed and judgment entered here of return of the property to Mrs. Nunn, with costs of all the courts to her, as Allor has not shown any separate interest of his own, and will be sufficiently protected by the general reversal.
A suggestion was put on file that Mrs. Nunn had privately settled with Paulus. She, however, denies any such settlement made with an understanding of the facts, and as her .attorneys claim interests, and no motion has been made for Paulus to dismiss, we should not be justified in considering any such claim.
The other Justices concurred. | [
13,
4,
1,
29,
-29,
-13,
17,
31,
2,
15,
45,
-7,
-7,
4,
-6,
-35,
0,
-2,
-18,
2,
-11,
-37,
-46,
2,
9,
16,
42,
-13,
-5,
72,
45,
-23,
10,
53,
-47,
44,
31,
39,
46,
-39,
8,
-25,
-27,
8,
-16,
37,
32,
-4,
39,
-44,
-2,
-9,
12,
-13,
32,
33,
-26,
9,
2,
-34,
5,
-54,
16,
-14,
4,
-6,
36,
-6,
0,
-57,
22,
12,
1,
-54,
16,
-15,
-20,
22,
-23,
-4,
-15,
-55,
51,
15,
22,
-17,
22,
8,
-81,
-21,
11,
55,
-18,
10,
13,
25,
24,
2,
52,
16,
-22,
-56,
-33,
80,
-6,
18,
-20,
-4,
36,
1,
59,
41,
55,
5,
21,
-30,
-34,
-37,
-13,
-30,
34,
-13,
13,
-28,
30,
41,
-86,
-17,
-2,
11,
-11,
-10,
-19,
-3,
-21,
-26,
-46,
35,
-23,
-17,
80,
-2,
-3,
-12,
0,
0,
14,
-22,
-26,
20,
-19,
38,
-20,
49,
28,
-22,
45,
-14,
-8,
-8,
-30,
-7,
10,
-7,
8,
-3,
17,
4,
3,
-41,
-16,
10,
-8,
24,
50,
19,
-23,
-12,
4,
-32,
19,
24,
21,
-24,
7,
-27,
8,
32,
1,
40,
-22,
-45,
4,
1,
9,
-4,
-6,
17,
-21,
-25,
-14,
-40,
22,
28,
26,
-28,
57,
8,
-48,
12,
-12,
29,
-14,
-42,
-71,
15,
-8,
-30,
-21,
3,
-30,
9,
-24,
-22,
-94,
-46,
28,
11,
80,
-3,
-61,
-33,
-9,
-7,
-19,
23,
8,
-19,
30,
-31,
-6,
34,
-28,
-3,
9,
1,
-31,
-19,
-26,
9,
-18,
-12,
-10,
45,
-3,
37,
27,
-1,
-34,
25,
-3,
27,
-55,
29,
19,
-35,
56,
32,
5,
41,
-3,
-19,
16,
23,
-19,
-5,
5,
23,
5,
0,
20,
0,
-28,
2,
-3,
2,
8,
-3,
23,
3,
35,
-33,
-12,
7,
-17,
-18,
-29,
-23,
-4,
19,
4,
-39,
22,
13,
1,
5,
-15,
-8,
-7,
8,
-44,
-16,
3,
-3,
65,
18,
-56,
69,
9,
-21,
31,
-39,
5,
26,
-28,
-15,
7,
-59,
-19,
-14,
35,
12,
-8,
6,
-1,
4,
64,
37,
-22,
-21,
-1,
4,
-25,
-25,
12,
-1,
-30,
36,
-31,
4,
-30,
-15,
-26,
30,
13,
-20,
32,
-3,
-21,
59,
26,
47,
9,
-3,
-12,
14,
8,
-14,
-1,
0,
29,
4,
-38,
-39,
-73,
43,
-31,
-33,
-49,
20,
9,
-20,
-13,
1,
3,
-18,
-24,
-19,
-21,
4,
-47,
-27,
51,
0,
24,
-41,
8,
-21,
-41,
-9,
-16,
37,
-4,
-20,
-55,
41,
-19,
-2,
-12,
36,
8,
-17,
-18,
27,
31,
15,
-9,
-18,
-20,
-20,
-30,
2,
-5,
-19,
26,
-10,
22,
2,
16,
35,
-53,
3,
2,
-72,
27,
-6,
22,
-23,
-20,
41,
37,
35,
-36,
24,
12,
28,
-55,
17,
61,
21,
-3,
12,
40,
17,
-3,
9,
34,
-47,
-21,
-60,
73,
-22,
18,
21,
33,
-51,
15,
4,
2,
4,
-12,
12,
51,
-28,
6,
53,
-3,
2,
-7,
-4,
-8,
41,
-21,
20,
-24,
10,
-92,
-57,
-13,
-23,
26,
-6,
35,
8,
-23,
-6,
22,
0,
-28,
31,
-10,
7,
21,
10,
16,
-13,
-24,
-13,
27,
2,
1,
-19,
-4,
8,
-42,
-21,
26,
-3,
16,
39,
33,
1,
-5,
3,
-21,
66,
-11,
30,
28,
-4,
15,
30,
-14,
-42,
-26,
0,
17,
-2,
18,
26,
-36,
47,
-34,
53,
-56,
21,
-24,
-10,
1,
14,
4,
-36,
14,
27,
-3,
21,
-1,
-13,
-9,
14,
19,
31,
0,
6,
49,
-5,
-3,
-3,
-8,
7,
16,
-26,
31,
3,
-2,
-20,
-27,
-7,
-42,
-25,
-22,
15,
-7,
-55,
4,
4,
44,
6,
9,
-5,
-12,
-2,
31,
-7,
-36,
1,
57,
34,
-7,
3,
-7,
19,
-33,
-37,
7,
-23,
-1,
26,
0,
-3,
27,
-44,
-23,
10,
1,
18,
-16,
0,
4,
-23,
5,
-9,
-39,
-34,
8,
-38,
-36,
-1,
4,
47,
5,
-78,
-14,
2,
-70,
27,
-24,
9,
-33,
-41,
-7,
29,
-10,
9,
-9,
55,
24,
-4,
-14,
-11,
14,
44,
11,
6,
-3,
-1,
25,
2,
-20,
-52,
21,
-3,
9,
41,
-29,
19,
21,
-16,
-32,
0,
8,
29,
78,
57,
24,
16,
-32,
25,
-6,
-5,
7,
-59,
-10,
-4,
-9,
6,
62,
-56,
-16,
18,
-3,
-2,
-17,
-6,
-6,
-3,
23,
-25,
-6,
-14,
22,
-4,
15,
25,
-20,
17,
-7,
8,
-14,
3,
1,
-12,
-38,
-15,
-13,
-2,
4,
-43,
-27,
9,
19,
-28,
24,
-35,
-5,
-21,
27,
2,
-6,
10,
1,
-22,
-6,
-1,
-22,
39,
-2,
-41,
23,
15,
-60,
47,
14,
-1,
6,
5,
-5,
14,
4,
-4,
29,
-5,
22,
0,
-19,
3,
-20,
-37,
-9,
8,
11,
59,
-17,
-16,
27,
1,
-43,
-45,
-32,
-16,
7,
9,
-23,
-5,
-7,
10,
33,
28,
64,
-6,
-41,
-39,
-2,
1,
17,
-3,
37,
34,
-18,
21,
-4,
20,
-2,
4,
6,
4,
-3,
-3,
1,
-16,
-26,
42,
0,
7,
29,
49,
7,
28,
-11,
38,
-65,
-67,
10,
-39,
-23,
29,
35,
30,
-14,
-7,
-18,
13,
-32,
30,
35,
46,
1,
3,
-45,
53,
13,
-77,
-67,
9,
29,
19,
13,
1,
29,
-24,
-43,
-47,
23,
42,
16,
-2,
-22,
46,
-26,
-21,
-1,
-14,
-22,
15,
-10,
-25,
2,
18,
26,
-14,
-14,
-9,
-15,
-17,
49,
-33,
10,
42,
39,
12,
-16,
37,
-22,
11,
0,
-28,
25,
9,
23,
-5,
-27,
4,
-40,
42,
-6,
22,
-2,
-5,
-80,
-14,
14,
0,
12,
25,
-26,
30,
2,
-33,
30,
-16,
-24,
-18,
0,
11,
0,
-3,
-3,
24,
13,
-13,
13,
-11,
22,
-54,
4,
32,
2,
-7,
23,
-28,
-13,
1,
-26,
18,
-24,
-34,
46,
-43,
-65,
37,
-5,
-17,
25,
11,
41,
-11,
3,
-4,
-44,
21,
18,
-58,
-30,
43,
-24,
-1,
48,
-18,
-15,
15,
-40,
4,
4,
7,
-31,
7,
-33,
-27,
-15,
-1,
-18,
9,
14,
-27,
3,
-35,
42,
3,
-43,
-44,
17,
3,
-51,
-37,
-41,
6,
41,
14,
-27,
-17,
-15,
-6,
-23,
50,
-5,
-32,
21,
28,
-3,
-60,
22,
-26,
53,
-6,
-6,
-27,
-6,
1,
44,
-35,
-35,
-28,
10,
-25,
33,
-44,
8,
44,
12,
-36,
-10,
17,
17,
30,
3,
0,
-14,
-14,
45,
27,
31,
28,
-40,
38
] |
Cooley, J.
This is an action of assumpsit originating in justice’s court, appealed to and tried in the circuit court, where the plaintiff had judgment. The defendants bring it here by writ of error.
The following facts will present tbe general features of the case. On June 26, 1875, the defendants were in business together as millers at Jenisonville, near Grand Rapids, under the partnership name of L. & L. Jenison. One B. E. Emery was at the same time in business selling groceries, flour and feed at Whitehall, and was indebted to defendants in upwards' of a thousand dollars. He was indebted to others also, and it is inferable from the record that he was insolvent. Under these circumstances he executed and put on record a chattel mortgage of his stock to defendants, with out their request or knowledge, and then telegraphed them to come to Whitehall. Mr. Luman Jenison, who had personal charge of the milling business, received the telegram and went to Whitehall in response to it. When there an arrangement was made between him and Mr. Emery under-which the apparent ownership of the stock of goods was placed in the firm of L. & L. Jenison, and their name placed upon the store as is usujfi to indicate proprietorship. Mr. Emery was then to go on and sell the stock in the usual course of business as their agent, keeping it up by new purchases as should be found needful. Luman Jenison in his testimony says that no purchases were to be made on credit, and all authority to use the credit of the firm was expressly withheld. Emery denies this, but admits he was cautioned not to get the store in debt. He bought, however, from time to time on credit, and among other purchases made of the plaintiff the purchase of cigars, the bill which is the subject of this suit. Luman Jenison at the time of the arrangement opened a bank account for Emery in the name of L. & L. Jenison with a banker at Whitehall, and E nery procured letter and bill heads in the same firm name which were used by him.
The business continued under this arrangement until the fall of 1879; Emery and Luman Jenison evidently understanding that, though Emery was ostensibly agent, he was really as between the parties themselves only mortgagor, with permission to sell the mortgaged goods to pay the debt. He did not, however, during all this time reduce the debt, but on the other hand received flour from defendants for which he paid only in part. Meantime he took the benefit of the bankrupt law, and received his discharge. On September 11, 1879, Luman Jenison went to Whitehall and, with the concurrence of Emery, sold out tiie stock to one Banks, realizing therefor less than the sum due his firm. Subsequently the account of the plaintiff was presented to him for settlement, and he refused to recognize any liability upon it. It was then put in suit.
If the plaintiff’s case is weak in any point it is in the evi dence to connect Juueius Jenison with the arrangement whereby Emery was made agent for carrying on the business at Whitehall. The circuit judge correctly instructed the jury that if the action of Luman Jenison was taken, and the business subsequently carried on in the name of L. & L. Jenison, without the knowledge of Lucius at the time or his subsequent ratification, there could be no recovery in this action; but that if Lucius authorized it, or knew how the business was being conducted and did not dissent, then both were bound to the extent of the agency Luman undertook to create. He also instructed them that merely leaving Emery in possession with instructions to sell the goods, would not give him authority to purchase goods -on credit. This instruction was as favorable as defendants could ask, and we find no requests refused which wfe think the defendants entitled to.
It is conceded that the authority of Luman Jenison as a partner in the mill did not empower him to engage the firm in another and independent business without the consent of his associate. It was a very important fact, however, that the debt for which Luman Jenison assumed to take security in the peculiar manner above described was a partnership debt. He undoubtedly had authority to take goods in payment, and to create an agency for the purpose of selling off the goods so taken. And if in his opinion keeping up the stock for a time was the best means of enabling the goods to be sold to advantage, very slight circumstances of knowledge or assent on the part of his co-partner ought to be sufficient to make the firm responsible for the acts of the agent in keeping up the stock in the usual way. Secret instructions to the agent under such circumstances cannot avail; it would be a reproach to the law if it coulcT suffer a principal to escape responsibility for those acts of the agent which according to the usual course of the business in which he was engaged, the public had a right to understand were authorized. There was abundant evidence in the case to charge Luman Jenison, and we think there was also enough from which the jury might infer that Lucius Jenison could not have been ignorant of the business carried on so long in the name of his firm.
It was urged on the part of the defence that as the defendants had a known place of business which they personally managed, and which was altogether different from that carried on at Whitehall, the plaintiff was guilty of negligence in making sale to Emery without first communicating with defendants and learning from them directly what was the extent of Emery’s agency. We think, on the other hand, that the negligence, if any, was all on the other side. The arrangement under which L. & L. Jenison became apparent owners, while as to Emery they were mortgagees only, and under which Emery for several years was enabled to carry on business though a bankrupt, was more than questionable in its nature, and if it landed the parties in trouble it was what they ought to have anticipated. The plaintiff sold its goods in the usual course of trade, and with no reason to doubt that Emery had the authority he professed to have, and which one of the defendants at least, according to the evidence which the jury believed, had done what he could to confer.
At the request of the defendant several questions were submitted to the jury for special findings. Some of them they answered and some they did not. It is agreed that some of them, if answered as defendants claimed they should be, would have been inconsistent with the general verdict for the plaintiff, and that the court erred in not requiring answers to all. The questions and the action upon them are as follows:
“1st. Did not Luman Jenison, at the time Emery was left in possession of the store on or about June-26, 1875, expressly state to said Emery not to get in debt ? No.
2d. Did the defendant ever authorize Emery to purchase goods in their name or credit ? Unable to determine.
3d. When and by whom was Emery ever authorized to buy goods on credit in the name of L. & L. Jenison ? Unable to determine.
4th. Did not the defendants at the time they left Emery in possession of the store June 26, 1876, expressly forbid him from purchasing any goods on their credit? No.
5th. Did not the defendants by Joseph Blake, on or about tiie first day of November, A. D. 1875, expressly forbid Emery from purchasing any goods on credit? No;
6th. Did Lucius Jenison know prior to September, 1879j that Emery was carrying on this store at Whitehall in the-name of L. & L. Jenison? Yes.
7th. Was the carrying on of this store at Whitehall within the scope of the partnership of L. & L. Jenison? This the-court instructed the jury they need not answer.
8th. Did Emery make an actual sale of the property covered by the chattel mortgage to L. & L. Jenison on or about June 26, 1875? Yes.
9th. If you find that Emery made an actual sale of this property to L. & L. Jenison, on or about June 26, 1875, what were the terms of such sale; the price agreed upon and when and how to be paid ? Unable to determine.
10th. Was not Emery left in possession of the goods under the chattel mortgage? No.
11th. Was not Emery merely left in possession of the goods under the chattel mortgage with permission to sell the same, and after applying sufficient amount thereof upon said mortgage to satisfy the same to have surplus ? No.
12th. Were there any cigars received from the plaintiff in the store at the time the stock was sold to Banks, and if so, how many?. Unable to determine.
13th. If you find there were cigars from this purchase from the plaintiff in the store at the time of the sale to Banks, how many cigars were there and what witness testified thereto? Unable to determine.”
The court was right in declining to put the seventh question, which involved law rather than fact, and upon which he had in substance given the jury instructions in accordance with the views of the defence. All the questions which remained unanswered might also have been excluded, for none of them was conclusive. This being so, the failure to require an answer was not error.
¥e have noticed all the assignments of error which we think plausible, and find them not supported.
The judgment must be affirmed with costs
Campbell and Marston, JJ. concurred | [
-13,
26,
33,
16,
-20,
8,
17,
-17,
-15,
12,
-21,
-2,
7,
-4,
-30,
13,
-5,
-16,
53,
-10,
48,
-31,
3,
-51,
29,
12,
18,
-54,
-42,
35,
-6,
12,
-11,
30,
-45,
15,
-8,
-12,
4,
-91,
-15,
-2,
33,
30,
42,
26,
4,
-22,
58,
-29,
54,
0,
3,
11,
-18,
-6,
-39,
32,
2,
0,
14,
-30,
51,
-43,
-10,
-3,
-14,
-2,
11,
7,
39,
-46,
-5,
-48,
38,
-22,
-25,
-45,
-23,
-52,
-5,
-2,
30,
-47,
-17,
-2,
-11,
13,
-21,
44,
-2,
-27,
16,
2,
26,
15,
-19,
71,
-37,
6,
-38,
-26,
9,
33,
23,
18,
0,
1,
-21,
-4,
-49,
10,
44,
-18,
-36,
-16,
13,
-50,
-1,
32,
-30,
-44,
6,
0,
12,
-27,
-53,
11,
-22,
0,
-2,
9,
-41,
25,
-37,
-17,
7,
19,
-34,
-29,
-9,
5,
-43,
-7,
-30,
6,
0,
1,
-6,
2,
-80,
-7,
23,
5,
-11,
21,
11,
-34,
31,
-38,
-3,
-26,
22,
-48,
-38,
5,
-65,
-16,
-32,
4,
-2,
-8,
-13,
-2,
-17,
31,
-21,
-29,
25,
1,
33,
-10,
11,
13,
-10,
-1,
32,
-37,
29,
-4,
7,
-2,
-21,
7,
-24,
19,
-32,
-54,
56,
-10,
16,
-14,
-28,
-8,
34,
-23,
67,
-8,
-37,
39,
-31,
22,
-31,
-22,
-41,
22,
-74,
-39,
-3,
-17,
8,
25,
-11,
52,
-25,
-64,
44,
44,
-40,
-22,
-64,
-66,
14,
14,
-8,
-16,
41,
29,
-3,
21,
-71,
-2,
-2,
-37,
-40,
-5,
-4,
13,
-14,
49,
-9,
23,
-19,
1,
-26,
-14,
14,
15,
-9,
3,
53,
32,
-47,
6,
21,
-25,
0,
9,
31,
13,
23,
-21,
63,
34,
-12,
-13,
-16,
42,
-11,
18,
-7,
-21,
5,
-7,
42,
0,
-17,
0,
-46,
10,
31,
3,
7,
-20,
21,
10,
-6,
1,
-5,
26,
-17,
4,
-57,
-65,
-24,
14,
-27,
-43,
-14,
-11,
-9,
41,
-26,
-12,
24,
-16,
-7,
21,
30,
-9,
-6,
11,
-3,
35,
2,
-10,
35,
-22,
15,
17,
30,
-35,
9,
-59,
-59,
0,
11,
7,
37,
-13,
26,
59,
-7,
4,
4,
12,
-1,
-13,
37,
-6,
-8,
-38,
2,
36,
25,
15,
9,
54,
-9,
20,
39,
6,
17,
-30,
10,
16,
-9,
-12,
-6,
9,
30,
45,
-23,
-12,
-3,
-31,
-69,
-44,
6,
61,
25,
3,
21,
-24,
5,
-6,
-17,
17,
-44,
8,
-33,
59,
12,
13,
29,
-8,
39,
-29,
0,
-77,
33,
57,
5,
-23,
-11,
30,
-49,
34,
27,
0,
66,
-19,
-3,
-13,
-27,
-63,
4,
11,
-8,
10,
-1,
-5,
12,
-26,
37,
-24,
46,
8,
-66,
27,
-1,
0,
-9,
-6,
-21,
5,
-1,
-10,
9,
29,
-12,
17,
10,
37,
27,
5,
-33,
0,
61,
15,
-33,
24,
0,
-16,
45,
45,
0,
-26,
-1,
-4,
9,
0,
34,
24,
-12,
-21,
42,
-39,
8,
43,
-12,
29,
67,
-17,
-19,
-9,
20,
15,
-4,
50,
-13,
9,
53,
15,
-36,
-43,
-10,
-15,
5,
51,
41,
-26,
9,
-15,
9,
-44,
-1,
6,
-9,
-1,
-50,
-14,
9,
-12,
24,
17,
26,
-23,
-9,
61,
-26,
-8,
17,
19,
-3,
-18,
-7,
17,
8,
78,
8,
-21,
-30,
74,
-32,
10,
20,
-3,
6,
-27,
25,
22,
-30,
-5,
17,
-5,
44,
12,
-2,
7,
-4,
-5,
33,
1,
-80,
17,
-11,
-25,
8,
-18,
-46,
15,
23,
2,
-23,
-6,
-24,
-2,
8,
-2,
-36,
-8,
9,
-9,
22,
-44,
9,
-44,
36,
-31,
-32,
59,
40,
35,
-19,
-6,
-38,
-30,
11,
9,
14,
-43,
8,
-49,
-51,
9,
-45,
24,
-15,
-6,
-43,
3,
-1,
4,
25,
-41,
-11,
9,
28,
26,
-32,
6,
12,
-48,
7,
-6,
-61,
42,
-22,
-21,
29,
-25,
6,
16,
-40,
0,
-36,
-24,
19,
-40,
24,
-9,
-41,
21,
19,
29,
-13,
-3,
-48,
53,
-50,
-41,
19,
-5,
-84,
51,
-15,
30,
-73,
-15,
-35,
-20,
15,
-29,
-14,
27,
0,
-7,
36,
-26,
7,
-2,
52,
35,
-18,
-37,
38,
0,
-32,
-49,
29,
-8,
-16,
44,
28,
31,
64,
6,
9,
-1,
29,
-24,
41,
-21,
4,
-24,
-36,
43,
-20,
6,
13,
28,
16,
-3,
36,
27,
48,
-10,
-22,
-14,
12,
19,
-40,
-32,
-19,
51,
28,
27,
-8,
-13,
1,
-50,
21,
34,
-14,
-34,
-35,
-48,
0,
11,
-13,
-39,
25,
27,
12,
-17,
12,
34,
-1,
-9,
-27,
-42,
28,
-48,
44,
14,
-15,
-18,
-28,
4,
-8,
-56,
-1,
12,
29,
55,
-3,
-52,
-38,
19,
6,
-46,
-12,
7,
-28,
-7,
-8,
-2,
22,
29,
53,
51,
0,
2,
31,
-6,
-13,
-10,
-49,
10,
4,
29,
33,
-17,
-38,
19,
-8,
-17,
0,
-46,
-26,
17,
-5,
-17,
16,
-9,
7,
-39,
31,
2,
56,
-44,
-12,
-16,
35,
-13,
28,
26,
49,
4,
5,
-10,
-31,
2,
-43,
21,
13,
13,
33,
-25,
-44,
-26,
-43,
50,
15,
6,
-25,
30,
11,
34,
11,
-17,
1,
-65,
-2,
58,
-27,
-17,
-36,
50,
-46,
20,
39,
8,
0,
21,
-17,
47,
-19,
13,
5,
-20,
-17,
11,
26,
10,
31,
-16,
-24,
-7,
7,
-6,
-5,
33,
28,
11,
21,
32,
-4,
-55,
14,
-15,
-6,
-33,
-31,
-5,
2,
-36,
-24,
13,
31,
0,
-58,
-39,
35,
-24,
-20,
-12,
-31,
-7,
22,
8,
-28,
19,
3,
30,
8,
-13,
2,
-10,
-2,
11,
4,
29,
-27,
42,
42,
-5,
5,
25,
-37,
36,
-29,
12,
2,
-25,
-8,
-52,
33,
25,
-5,
12,
-4,
28,
14,
13,
3,
0,
15,
36,
34,
-12,
-9,
-31,
-55,
76,
9,
24,
19,
36,
32,
-30,
9,
64,
-10,
15,
17,
27,
-8,
15,
1,
-9,
8,
-7,
24,
-24,
28,
-42,
-16,
-9,
36,
35,
22,
10,
-41,
-2,
44,
-32,
39,
15,
-37,
-39,
-40,
51,
-24,
-35,
-16,
-25,
-4,
37,
-17,
-3,
20,
-29,
-10,
26,
31,
14,
42,
-65,
25,
-39,
-14,
-16,
-1,
21,
56,
-18,
0,
-33,
14,
-18,
-31,
71,
-18,
-37,
7,
11,
14,
34,
-10,
-17,
3,
-15,
19,
38,
-64,
30,
16,
-60,
41,
-48,
10,
50,
-10,
-16,
-12,
48,
-5,
-3,
-74,
-49,
23,
78,
11,
17,
1,
23,
61,
-4,
10,
6,
-53,
70
] |
Per Curiam.
The three defendants were convicted in Macomb County Circuit Court of the 1968 armed robbery of a bar. MCLA § 750.529 (Stat Ann 1970 Cum Supp § 28.797). They raise several issues which we will treat seriatim.
The major error that all three rely on is a jail confrontation with the victim and an eyewitness that clearly violated their due process safeguards. United States v. Wade (1967), 388 US 218 (87 S Ct 1926, 18 L Ed 2d 1149); Stovall v. Denno (1967), 388 US 293 (87 S Ct 1967, 18 L Ed 2d 1199); People v. Hutton (1970), 21 Mich App 312. When the witnesses’ identifications become thus tainted, it is the prosecutor’s duty to prove that their in-court identifications were based on sources independent of the illegal confrontation. People v. Young (1970), 21 Mich App 684. We believe that the prosecutor has made a sufficient showing in this case for us to conclude that the in-court identifications were independently-based.
All three defendants argue that the Macomb County sheriff’s deputies did not have probable cause to arrest them. However, when a police officer has been transmitted details of a robbery including a description of the perpetrators, we believe he has probable cause to arrest individuals matching that description traveling on a possible escape route from the scene of the crime minutes thereafter. MCLA § 764.15 (Stat Ann 1954 Rev § 28.874); People v. Wolfe (1967), 5 Mich App 543; People v. Wilson (1967), 8 Mich App 651; People v. Beauregard (1970), 21 Mich App 224.
Defendants Purdy and Lohn assert error by the trial court in admitting into evidence certain exhibits which they allege had not been sufficiently connected with the crime. The record reveals identification substantial enough to allow them to be admitted into evidence. People v. Crawford (1969), 16 Mich App 92.
Defendant Pnrdy claims his right to a fair trial was prejudiced by a witness’s display of an article not introduced into evidence. The transcript however, reveals that the action of the witness was entirely spontaneous and in no way caused by the prosecutor. The trial court’s instruction to the jury to disregard it cured any error. People v. Wolke (1968) , 10 Mich App 582.
Defendant Lohn argues that the trial court abused its discretion under MCLA §768.5 (Stat Ann 1954 Rev § 28.1028) in not granting his motion for a separate trial. Since the facts of the crime, the witnesses, and the defenses were identical for all three defendants, the trial court did not abuse its discretion in requiring them to stand trial together. People v. Schram (1966), 378 Mich 145. Association with co-defendants at trial, by itself, is not enough to demonstrate prejudice to defendant’s right to a fair trial. People v. Mullane (1931), 256 Mich 54.
The defendants raise additional alleged errors in the conduct of their trial which were not properly preserved for appeal. We will not entertain issues raised for the first time on appeal unless a clear injustice is demonstrated. People v. Ray Clifton Smith (1969), 20 Mich App 243; People v. Reynold (1969), 20 Mich App 397; People v. Omell (1968), 15 Mich App 154; People v. Owens (1968), 13 Mich App 469.
Affirmed. | [
18,
0,
67,
12,
-17,
-14,
-3,
-46,
-54,
54,
43,
-38,
15,
29,
27,
-18,
1,
22,
37,
-61,
13,
-45,
-29,
59,
-47,
-30,
49,
65,
-32,
21,
-13,
15,
25,
-32,
36,
8,
41,
-9,
-10,
29,
8,
-21,
22,
-54,
-55,
-5,
36,
1,
23,
-26,
35,
-6,
-47,
25,
-43,
24,
3,
-38,
12,
-37,
-5,
43,
1,
-30,
-22,
-38,
-18,
-12,
-42,
-23,
28,
16,
-26,
-62,
-11,
-37,
-34,
6,
-35,
29,
19,
25,
40,
48,
43,
-2,
2,
-45,
15,
-28,
11,
7,
-45,
-32,
19,
-38,
30,
-35,
24,
-21,
-43,
9,
-22,
21,
-1,
57,
-49,
-16,
-29,
-53,
-4,
-22,
37,
7,
-7,
-20,
-11,
-1,
4,
20,
11,
35,
52,
-22,
17,
3,
20,
-12,
-3,
47,
29,
23,
-1,
-2,
-40,
25,
-16,
18,
36,
6,
-14,
20,
-3,
-30,
19,
28,
-16,
3,
68,
-4,
-55,
8,
4,
40,
-42,
28,
-2,
-30,
-42,
10,
9,
6,
-8,
-29,
5,
-12,
-11,
-23,
5,
-30,
7,
-6,
26,
41,
24,
-28,
-7,
22,
13,
-19,
-4,
8,
12,
3,
24,
-36,
-37,
-32,
-24,
-16,
9,
33,
-49,
12,
41,
18,
-13,
0,
40,
-28,
10,
-67,
14,
-55,
-10,
2,
21,
-51,
-25,
23,
-16,
-31,
3,
-43,
0,
-55,
41,
-5,
-21,
-42,
-27,
-36,
-14,
-44,
0,
-32,
-14,
21,
-29,
-6,
51,
-34,
14,
0,
6,
-11,
31,
-17,
52,
41,
26,
-14,
-26,
-25,
-27,
22,
7,
-7,
10,
16,
18,
-3,
-48,
-28,
-72,
-23,
37,
7,
-56,
28,
-47,
42,
-30,
24,
-44,
56,
9,
44,
-51,
19,
-40,
5,
7,
26,
3,
-30,
-40,
25,
-9,
35,
40,
59,
18,
49,
15,
-28,
-41,
4,
30,
15,
37,
8,
-66,
-24,
28,
25,
34,
-20,
-25,
3,
32,
53,
0,
-56,
-65,
-25,
9,
7,
-32,
-1,
28,
67,
-10,
1,
11,
11,
-16,
1,
55,
-15,
-67,
-12,
8,
-60,
-10,
-54,
32,
-6,
-23,
-28,
-28,
18,
-8,
7,
9,
-21,
8,
11,
30,
33,
-5,
-33,
16,
-23,
57,
17,
-29,
17,
-13,
-58,
66,
11,
11,
37,
31,
-27,
-63,
-34,
3,
-42,
47,
0,
-33,
64,
20,
20,
-52,
-37,
26,
29,
-17,
-64,
-7,
21,
-27,
-3,
54,
30,
20,
43,
-6,
14,
15,
0,
-36,
-3,
-13,
-32,
-28,
19,
-31,
-29,
-18,
-26,
-11,
-6,
-48,
36,
38,
-42,
-41,
18,
31,
8,
-13,
-11,
-36,
47,
1,
-7,
0,
18,
57,
37,
-32,
-10,
0,
-21,
0,
-24,
15,
11,
-11,
-57,
16,
-10,
0,
58,
-1,
-35,
9,
6,
-2,
-18,
39,
-11,
-47,
-33,
52,
-27,
-41,
-3,
-35,
27,
14,
17,
-13,
-39,
-9,
3,
4,
38,
18,
-29,
-33,
29,
81,
-56,
-14,
-1,
6,
-25,
-33,
-13,
18,
0,
-58,
-63,
8,
6,
16,
-18,
-30,
13,
-57,
-8,
5,
32,
14,
22,
19,
8,
-7,
-27,
-58,
-47,
-1,
-11,
27,
40,
26,
-12,
-44,
12,
15,
-21,
-45,
-7,
-27,
-15,
23,
26,
-22,
-6,
34,
40,
35,
6,
5,
5,
-15,
34,
-33,
5,
-70,
-24,
28,
-15,
-21,
14,
23,
-23,
-22,
-16,
-26,
3,
-29,
-24,
-23,
-13,
40,
-13,
6,
3,
41,
41,
10,
-10,
-57,
-3,
3,
16,
20,
4,
24,
1,
10,
-40,
25,
-45,
9,
34,
25,
-35,
-36,
8,
-18,
0,
-23,
-44,
-50,
-17,
54,
20,
31,
1,
-4,
0,
72,
-53,
-7,
17,
13,
-20,
-18,
56,
21,
0,
11,
31,
46,
44,
5,
-4,
-42,
27,
29,
-17,
2,
-9,
-38,
43,
1,
-23,
15,
27,
-13,
-45,
36,
64,
63,
-8,
0,
21,
87,
-34,
-19,
-5,
-22,
-52,
65,
-8,
-20,
-20,
-27,
1,
-40,
-6,
-40,
34,
-5,
-1,
13,
80,
-8,
13,
-17,
-26,
-5,
-7,
-27,
-13,
-37,
15,
-17,
-7,
-16,
18,
-23,
8,
-2,
25,
2,
1,
27,
14,
-28,
30,
18,
-55,
-30,
34,
12,
-1,
25,
-39,
-7,
-2,
6,
19,
16,
44,
-57,
40,
3,
36,
36,
-52,
67,
-3,
33,
-12,
-15,
-4,
-11,
-9,
23,
-3,
-47,
-19,
-7,
-7,
13,
-11,
27,
1,
-61,
-11,
-13,
10,
-31,
31,
18,
-33,
25,
-64,
3,
5,
-1,
0,
16,
0,
17,
-14,
-20,
37,
-12,
-65,
-11,
15,
-32,
45,
-33,
-40,
22,
-24,
-45,
39,
-5,
36,
-50,
-13,
44,
-15,
5,
24,
34,
15,
21,
-38,
21,
25,
8,
4,
0,
55,
-19,
17,
-36,
37,
-37,
18,
32,
-5,
-18,
-19,
18,
-40,
-6,
58,
-3,
34,
13,
-21,
-28,
17,
26,
44,
-34,
-32,
31,
22,
-4,
-65,
-74,
21,
6,
-7,
2,
-13,
-45,
-68,
38,
-8,
-43,
59,
-3,
-38,
18,
37,
19,
21,
-34,
25,
11,
19,
-20,
-22,
-35,
24,
11,
-13,
-35,
45,
0,
8,
11,
15,
-1,
7,
51,
23,
37,
-33,
-23,
13,
-17,
1,
14,
10,
37,
34,
-8,
-9,
-6,
21,
-10,
-37,
-1,
-41,
-1,
-2,
22,
-3,
-30,
58,
25,
-75,
2,
-25,
-14,
-7,
5,
29,
23,
4,
-6,
11,
-24,
9,
38,
2,
-2,
35,
23,
48,
9,
-48,
2,
-7,
-13,
18,
18,
-8,
10,
12,
4,
6,
36,
-6,
17,
16,
1,
-33,
-17,
36,
53,
-14,
7,
42,
-41,
10,
5,
41,
-13,
16,
0,
22,
-12,
49,
34,
-12,
26,
-4,
37,
13,
20,
-26,
-13,
6,
-3,
36,
-21,
12,
-26,
0,
15,
-2,
43,
-17,
41,
30,
-24,
29,
44,
-13,
22,
19,
-33,
26,
8,
-36,
4,
-18,
19,
-32,
-14,
8,
22,
-39,
17,
38,
77,
25,
-11,
-29,
-10,
23,
-41,
29,
-16,
21,
11,
-15,
17,
36,
62,
-32,
14,
-33,
-59,
-10,
-55,
40,
-23,
20,
-62,
-18,
-22,
38,
-21,
-13,
11,
18,
3,
51,
-8,
-15,
-15,
-18,
-42,
53,
10,
-2,
-10,
33,
16,
-25,
29,
48,
-7,
-17,
-1,
-51,
14,
-31,
-10,
9,
-34,
10,
-74,
-33,
-11,
-10,
37,
-53,
3,
5,
-58,
16,
-10,
47,
3,
1,
-45,
29,
-7,
-20,
-18,
19,
20,
63,
22,
23,
0,
-39,
36,
-1,
-23,
19,
-14,
-30,
1,
-15,
-31,
4,
-9,
-14,
-34,
23,
-64,
38,
-2,
57
] |
R. B. Burns, P. J.
Plaintiffs contracted with the defendant to purchase a house to be constructed by defendant. Plaintiffs stopped making payments according to the contract because they were not satisfied that the construction was according to the plans and specifications.
Plaintiffs’ attorney notified defendant that they were rescinding the contract and demanded the return of their money. Defendant refused to return the money on the ground that plaintiffs had breached the contract by not making the payments.
Plaintiffs filed suit for rescission and the defendant filed a counterclaim for breach of contract. During the course of the trial the defendant made the following statement: “All I asked him [plaintiff Neal Fitzgerald] to do was wait until the house was completed. I told him at that time if he did not want the house, he did not have to take it”.
Plaintiffs moved for a directed verdict on the theory that defendant’s statement was a judicial admission; that defendant waived plaintiffs’ obligations under the contract. The trial court granted plaintiffs’ motion for a directed verdict.
If the defendant meant what he said, one might wonder why this case is in court; if he didn’t mean what he said, why did he say it?
Defendant claims the trial court erred as the record does not show that the plaintiffs relied on the statement or that there was any consideration for the waiver.
Defendant has failed to distinguish between the theories of equitable estoppel and waiver.
Corpus Juris Secundum (31 CJS, Estoppel, § 67, p 402) defines equitable estoppel as follows:
“In order to constitute an equitable estoppel, estoppel by conduct, or estoppel in pais there must exist a false representation or concealment of material facts; it must have been made with knowledge actual or constructive, of the facts; the party to whom it was made must have been without knowledge or the means of knowledge of the real facts; it must have been made with the intention that it should be acted on; and the party to whom it was made must have relied on or acted on it to his prejudice.”
A waiver is defined on page 408 as follows:
“To constitute a waiver, there must be an existing right, benefit, or advantage, knowledge, actual or constructive, of the existence of such right, benefit, or advantage, and an actual intention to relinquish it, or such conduct as warrants an inference of relinquishment. There must be an existing right and an intention to relinquish it, and there must be both knowledge of the existence of a right and an intention to relinquish it.
“A waiver exists only where one, with full knowledge of material facts, does or forbears to do something inconsistent with the existence of the right in question or his intention to rely on that right.”
A waiver may be shown by proof of express language of agreement or inferably established by such declaration, act, and conduct of the party against whom it is claimed as are inconsistent with a pur pose to exact strict performance. Strom-Johnson Construction Co. v. Riverview Furniture Store (1924), 227 Mich 55; Bissell v. L. W. Edison Co. (1967), 9 Mich App 276.
In Couper v. Metropolitan Life Insurance Co. (1930), 250 Mich 540, 544, the Court said:
“ ‘A waiver is the intentional relinquishment of a known right.’ 27 ECL 904.
“It implies an election to forego some known advantage which might have been insisted upon (Warren v. Crane [1883] 50 Mich 300), which induced a belief of an ‘intention and purpose to waive.’ Bailey v. Jones (1928), 243 Mich 159.”
The express statement of the defendant was an intentional relinquishment of a known right and an election to forego strict enforcement of the contract which could have been insisted upon.
In American Locomotive Co. v. Gyro Process Co. (CA6, 1950), 185 F2d 316, the United States Court of Appeals, on appeal from the Eastern District Court of Michigan, Southern Division, held that an executory waiver being in the nature of a promise or a contract must be supported by consideration to be enforceable, but a ivaiver partaking of the principle of an election needs no consideration, and cannot be retracted.
The factual situation in the present case fulfills the elements of an express waiver of a contractual right. A directed verdict is appropriate where the evidence is clearly one way of a matter of law. Garbacz v. Grand Trunk Western R. Co. (1948), 323 Mich 7.
Affirmed. Costs to plaintiff.
All concurred. | [
-34,
2,
-53,
-28,
24,
-8,
5,
-25,
6,
30,
28,
29,
10,
6,
7,
-49,
-22,
-12,
-9,
5,
-94,
-21,
12,
37,
-7,
-5,
54,
-28,
40,
2,
16,
23,
-37,
-18,
-15,
-18,
13,
-18,
-9,
-5,
2,
-17,
-15,
-46,
-24,
-37,
-21,
-43,
56,
26,
6,
-3,
-26,
10,
6,
-3,
8,
19,
-24,
3,
-30,
-68,
-28,
-44,
-14,
-21,
5,
46,
5,
11,
-22,
-14,
6,
-53,
-21,
2,
5,
46,
17,
-28,
55,
9,
38,
-61,
-18,
-18,
47,
-36,
-19,
4,
-18,
12,
11,
42,
-46,
37,
33,
20,
34,
44,
-34,
24,
47,
11,
-66,
20,
-2,
-18,
-15,
13,
-11,
27,
13,
-52,
-47,
-9,
-23,
-9,
-44,
-66,
1,
44,
-12,
-36,
1,
60,
52,
-44,
-43,
19,
10,
-11,
19,
30,
-24,
18,
0,
8,
15,
-2,
13,
13,
32,
-45,
13,
25,
46,
-26,
-60,
1,
0,
-1,
3,
12,
10,
-30,
-15,
-31,
-4,
-37,
57,
40,
-51,
38,
-9,
-19,
-26,
42,
10,
0,
54,
-11,
-6,
-15,
23,
-48,
56,
-17,
-22,
-40,
25,
27,
19,
27,
14,
-24,
-34,
21,
-2,
80,
48,
-28,
-19,
58,
25,
34,
-59,
38,
-17,
-5,
-44,
-28,
-11,
15,
-55,
3,
-13,
10,
-15,
33,
-23,
52,
-55,
-33,
-8,
-39,
18,
53,
-12,
-5,
-35,
10,
-11,
24,
-55,
-11,
12,
24,
51,
0,
1,
32,
-46,
43,
19,
8,
-8,
20,
0,
-19,
8,
29,
-34,
-31,
-21,
-61,
14,
29,
1,
-4,
-43,
13,
53,
39,
-12,
-32,
-46,
-8,
-24,
4,
4,
41,
-6,
-22,
39,
-6,
-5,
13,
-4,
-12,
11,
-16,
-12,
51,
34,
-19,
-91,
5,
-12,
-40,
-47,
5,
2,
5,
-37,
48,
13,
61,
-4,
10,
69,
-23,
-7,
-5,
21,
13,
11,
13,
-18,
10,
-7,
-62,
-3,
23,
-3,
34,
20,
57,
-13,
1,
-43,
5,
-7,
-2,
34,
-26,
-6,
-40,
-25,
-66,
29,
-11,
33,
-7,
8,
-40,
12,
-29,
-14,
16,
-26,
26,
5,
18,
48,
27,
3,
-59,
-51,
5,
21,
21,
-28,
-53,
-4,
68,
-13,
-14,
-57,
14,
-22,
1,
-45,
-9,
-16,
14,
-26,
5,
15,
25,
63,
44,
-29,
-38,
37,
28,
35,
11,
-25,
18,
-9,
-9,
-28,
-30,
-21,
-80,
-29,
-11,
-76,
40,
-34,
-35,
33,
8,
25,
7,
-32,
-28,
-82,
-25,
-42,
-45,
23,
23,
-14,
18,
1,
0,
-27,
-26,
-32,
1,
-28,
-51,
-64,
-6,
23,
-52,
-45,
11,
24,
-7,
-10,
4,
-20,
-16,
24,
-4,
35,
25,
17,
-43,
7,
28,
10,
-35,
-27,
-24,
-15,
1,
-31,
23,
9,
-35,
0,
32,
10,
-4,
-19,
47,
-31,
-18,
-27,
6,
37,
5,
51,
-27,
-17,
-3,
46,
-30,
43,
14,
8,
-10,
9,
-8,
18,
36,
34,
-8,
55,
30,
46,
-2,
-10,
-17,
-43,
9,
25,
48,
33,
40,
-35,
3,
-33,
19,
-21,
31,
51,
-10,
21,
-64,
5,
33,
-33,
-34,
41,
-23,
-34,
18,
42,
16,
-48,
-34,
-23,
-12,
-5,
51,
12,
17,
20,
-24,
69,
-13,
-4,
-30,
7,
75,
-15,
20,
21,
12,
17,
-1,
41,
-6,
10,
33,
-48,
70,
-71,
-54,
0,
-38,
-22,
60,
15,
14,
23,
-4,
25,
-43,
-42,
49,
25,
-3,
-4,
48,
-35,
66,
-14,
40,
28,
23,
8,
4,
-5,
24,
-45,
-13,
50,
46,
-33,
27,
-28,
-80,
54,
-14,
17,
36,
38,
-20,
14,
5,
-5,
-8,
25,
98,
1,
2,
-33,
17,
-16,
26,
-27,
11,
-2,
0,
-24,
-19,
34,
-52,
11,
44,
46,
13,
21,
5,
-13,
-36,
4,
-40,
-6,
-28,
-7,
-63,
-22,
29,
-10,
43,
-63,
-6,
0,
-1,
12,
11,
-21,
5,
17,
11,
-38,
-25,
42,
-7,
12,
-5,
0,
41,
35,
20,
-50,
-49,
2,
16,
11,
21,
-16,
-8,
15,
-29,
7,
9,
0,
-28,
-17,
-21,
15,
-5,
-34,
52,
-45,
10,
-13,
-49,
16,
20,
26,
-46,
-27,
26,
19,
-48,
46,
-14,
-21,
-37,
27,
2,
14,
-37,
-30,
-15,
24,
-29,
0,
33,
-24,
10,
4,
6,
45,
34,
19,
4,
40,
29,
-16,
18,
7,
-31,
46,
-37,
-27,
-1,
16,
-1,
9,
43,
-1,
-22,
17,
-50,
35,
-4,
-20,
20,
-22,
4,
16,
-67,
1,
-6,
7,
-6,
-11,
48,
7,
58,
40,
2,
-12,
-40,
25,
52,
-25,
55,
-42,
-23,
8,
-9,
37,
-26,
-20,
8,
65,
-32,
28,
-64,
5,
57,
4,
24,
-39,
14,
-16,
-30,
-13,
-28,
-33,
5,
18,
9,
-19,
-44,
20,
76,
-15,
-57,
-4,
-35,
10,
31,
-31,
35,
-42,
-28,
-24,
10,
-48,
5,
-25,
-6,
-12,
24,
-12,
-40,
63,
-11,
-18,
-12,
14,
-26,
8,
37,
17,
26,
0,
-23,
56,
17,
-19,
-4,
0,
-57,
26,
-12,
5,
18,
8,
-23,
11,
9,
16,
12,
74,
32,
-4,
-27,
-27,
-8,
-41,
73,
27,
2,
-24,
6,
0,
-64,
-29,
-59,
-8,
5,
59,
-8,
23,
43,
22,
10,
-4,
78,
-33,
-22,
45,
5,
-7,
-59,
-30,
-7,
18,
-40,
-13,
21,
17,
-71,
29,
39,
19,
-52,
-57,
-40,
-19,
-11,
30,
-18,
34,
-11,
-39,
-28,
-17,
-20,
63,
8,
-34,
24,
-44,
12,
-7,
1,
3,
-13,
-15,
8,
16,
-11,
-23,
73,
59,
17,
53,
7,
-33,
6,
27,
2,
31,
-26,
10,
27,
-37,
-6,
-54,
15,
-17,
-31,
-6,
-28,
-40,
57,
45,
23,
32,
55,
-3,
-20,
-9,
-45,
-19,
13,
28,
13,
-12,
3,
27,
3,
4,
30,
-15,
40,
11,
-25,
49,
-27,
29,
30,
0,
-19,
23,
80,
28,
10,
-53,
-30,
0,
-15,
10,
20,
-14,
20,
-11,
18,
-19,
54,
17,
-54,
12,
-21,
-14,
12,
-14,
-36,
-22,
12,
-22,
-27,
-7,
-30,
36,
31,
-36,
44,
39,
24,
-23,
-56,
-28,
30,
-56,
-48,
60,
25,
-9,
2,
29,
11,
88,
11,
-14,
-29,
15,
-10,
-21,
-38,
-50,
-13,
26,
-30,
-22,
1,
17,
-29,
-23,
-47,
-66,
5,
-4,
-3,
3,
-54,
37,
-7,
-8,
29,
3,
-3,
-2,
-34,
8,
18,
-23,
-16,
29,
-34,
-1,
-43,
22,
23,
44,
-75,
-21,
11,
34,
29,
-43,
3,
-44,
-8,
-49,
-18,
50,
33,
34,
68
] |
Per Curiam.
Defendant pleaded guilty in 1958 to falsely and feloniously forging a check (MCLA § 750.248 [Stat Ann 1970 Cum Supp § 28.445]) and was sentenced to a term of 3 to 14 years imprisonment.
On appeal defendant raises the following question: Did the trial court commit error in failing to ask questions of defendant calculated to reveal the truth or falseness of his plea of guilty?
At the time of the acceptance of defendant’s guilty plea, Court Rule No 35A (1945) was in effect. It is identical to GrCR 1963, 785.3. The rules require the following procedure:
“(2) Imposing Sentence. If the accused pleads guilty, after such plea and before sentence the court shall inform the accused of the nature of the accusation and the consequence of his plea; and regardless of whether he is represented by counsel, the court shall examine the accused, not necessarily under oath, and as a condition of accepting the plea of guilty and imposing sentence shall ascertain that the plea was freely, understandingly, and voluntarily made, without undue influence, compulsion, or duress, and without promise of leniency. Unless the court determines that the plea of guilty was so made, it shall not be accepted.”
The transcript demonstrates that the defendant was not examined with regard to the facts of the crime and his participation therein, contrary to GCR 1963, 785.3(2). People v. Barrows (1959), 358 Mich 267; People v. Perine (1967), 7 Mich App 292; People v. Mason (1968), 13 Mich App 277.
Reversed and remanded for a new trial. | [
58,
-3,
59,
-8,
-52,
-5,
-21,
-24,
-65,
5,
34,
-25,
-9,
-23,
-28,
-12,
12,
35,
31,
-23,
-12,
1,
34,
33,
-43,
23,
47,
9,
7,
-2,
-7,
53,
-29,
-11,
1,
-56,
31,
-20,
13,
32,
-34,
16,
-6,
-25,
-63,
-1,
-14,
7,
46,
-6,
36,
3,
-6,
0,
-23,
-4,
-11,
-37,
-43,
6,
25,
1,
-26,
6,
6,
-37,
-30,
11,
27,
13,
17,
-18,
27,
15,
4,
-2,
14,
55,
-38,
16,
0,
18,
29,
-4,
33,
-14,
-1,
-7,
-9,
-57,
19,
14,
2,
-51,
-11,
-46,
-22,
-29,
21,
12,
-7,
-4,
-5,
-7,
17,
-6,
-92,
-13,
-38,
63,
-27,
-3,
3,
-53,
-51,
-42,
-35,
0,
11,
-55,
-6,
8,
55,
56,
3,
34,
-39,
-32,
11,
-22,
-5,
57,
3,
17,
17,
22,
-39,
-4,
15,
-5,
29,
-49,
37,
13,
34,
-34,
11,
33,
26,
26,
-42,
-9,
-25,
-17,
-22,
12,
-69,
-73,
-31,
20,
12,
21,
-39,
4,
-4,
0,
-25,
0,
-4,
-67,
11,
-19,
54,
45,
-4,
-44,
25,
-54,
1,
48,
-50,
0,
-3,
-16,
21,
28,
-30,
49,
-45,
-25,
20,
22,
-22,
-3,
44,
-23,
-17,
22,
67,
-21,
-40,
-9,
42,
6,
7,
-3,
-35,
-11,
2,
-19,
-42,
-86,
0,
15,
-22,
-4,
9,
-9,
46,
68,
-72,
-17,
-12,
-3,
18,
3,
45,
53,
33,
58,
6,
33,
17,
30,
17,
25,
0,
10,
54,
43,
-38,
-46,
31,
-1,
31,
39,
26,
5,
-11,
-5,
28,
51,
16,
-11,
-42,
0,
15,
6,
-26,
-23,
-15,
29,
-4,
-22,
-31,
20,
-15,
23,
-90,
-76,
11,
2,
0,
32,
-18,
5,
-38,
-10,
-59,
-14,
-6,
23,
-17,
16,
-21,
-4,
-63,
22,
43,
13,
35,
36,
-39,
-14,
78,
25,
-1,
-31,
-52,
-54,
29,
3,
-3,
-27,
28,
-8,
20,
4,
-39,
-11,
3,
3,
-5,
20,
17,
0,
11,
-8,
79,
0,
-79,
-39,
-10,
19,
-4,
-5,
37,
-14,
13,
-15,
-41,
-2,
-5,
13,
10,
10,
47,
45,
36,
32,
22,
7,
-7,
-31,
20,
6,
9,
28,
-36,
-10,
20,
-7,
35,
-14,
-11,
-15,
1,
-54,
-5,
-43,
68,
32,
15,
4,
11,
-24,
-10,
10,
58,
93,
-1,
-32,
-11,
-63,
-15,
11,
57,
-14,
2,
32,
-41,
6,
-3,
-1,
-10,
-36,
-17,
-27,
-20,
17,
-60,
-15,
-26,
-68,
22,
15,
32,
25,
12,
3,
-3,
-26,
64,
6,
16,
-9,
-31,
11,
15,
29,
-2,
67,
25,
32,
-22,
-49,
10,
6,
39,
-32,
-11,
-10,
20,
18,
14,
1,
-6,
7,
5,
16,
49,
-11,
18,
-67,
52,
26,
-53,
42,
44,
18,
-21,
13,
1,
14,
34,
21,
-7,
-47,
-4,
-19,
65,
32,
0,
-46,
-10,
30,
15,
32,
-9,
-38,
0,
-12,
-62,
-4,
22,
-46,
-13,
-41,
9,
35,
27,
4,
-11,
49,
-20,
1,
48,
1,
29,
-22,
6,
-3,
-35,
-29,
-33,
-39,
-42,
-31,
18,
-25,
-15,
11,
-37,
4,
-27,
30,
-42,
-44,
-25,
50,
-60,
3,
0,
-11,
40,
32,
45,
-14,
62,
26,
-20,
6,
3,
13,
30,
-7,
13,
-40,
-70,
32,
-18,
10,
-3,
-1,
4,
27,
-56,
-2,
-12,
15,
17,
-60,
-36,
-23,
-4,
-5,
-20,
-19,
-34,
-15,
20,
49,
18,
59,
0,
-27,
-12,
-53,
-21,
28,
-37,
-55,
21,
-22,
-14,
-24,
0,
36,
7,
-44,
-9,
14,
75,
51,
35,
13,
0,
12,
17,
-25,
28,
19,
-53,
67,
-12,
22,
0,
54,
15,
-11,
50,
64,
5,
-3,
14,
27,
-3,
-6,
-1,
-6,
-29,
-6,
-11,
-15,
-23,
-37,
-60,
-56,
31,
35,
54,
0,
-16,
41,
35,
-18,
-7,
18,
-16,
-25,
109,
-31,
5,
-10,
5,
-19,
-4,
-44,
-44,
52,
-4,
-5,
-5,
-14,
-4,
-37,
-101,
2,
-54,
-13,
14,
18,
-44,
20,
-39,
12,
-5,
46,
4,
-24,
36,
52,
22,
-65,
41,
-12,
-6,
24,
23,
-6,
16,
32,
-12,
-19,
24,
-38,
-15,
6,
8,
0,
9,
0,
-26,
-14,
2,
58,
-3,
-46,
51,
-32,
-5,
-26,
13,
-24,
46,
24,
-36,
-20,
14,
-46,
-38,
-6,
22,
-20,
-12,
-79,
-10,
11,
10,
19,
1,
14,
-12,
-14,
32,
26,
111,
39,
-17,
26,
6,
-10,
27,
-1,
-15,
-19,
23,
3,
17,
-32,
-72,
11,
-53,
13,
-9,
15,
-64,
-2,
-3,
-14,
-10,
-38,
3,
26,
-39,
-34,
45,
-23,
6,
-14,
42,
4,
34,
0,
-2,
9,
-17,
33,
20,
-10,
1,
-10,
-73,
-11,
-20,
-15,
5,
-11,
-17,
-15,
39,
46,
11,
31,
15,
24,
57,
-29,
-8,
-24,
-46,
64,
-16,
-9,
-68,
38,
11,
-18,
-37,
18,
-15,
-40,
32,
-1,
-56,
32,
-27,
-7,
82,
-2,
26,
11,
27,
-17,
0,
-44,
-4,
-34,
-31,
8,
2,
36,
-47,
54,
39,
6,
-16,
-15,
20,
-1,
-22,
-26,
15,
-30,
-34,
2,
9,
50,
14,
38,
27,
41,
-65,
-6,
-9,
-25,
18,
-14,
22,
-7,
5,
29,
-25,
-31,
-31,
1,
-5,
-64,
21,
15,
-21,
-3,
5,
32,
-8,
-11,
14,
28,
-59,
-44,
37,
-9,
12,
-22,
3,
51,
-10,
-5,
23,
39,
5,
-16,
14,
-12,
-6,
19,
4,
32,
29,
-10,
-23,
-31,
-24,
4,
14,
16,
-11,
-5,
11,
-74,
-26,
-8,
7,
-26,
60,
16,
13,
10,
6,
-3,
-29,
10,
54,
-25,
-33,
-32,
-49,
-73,
-67,
14,
11,
33,
-13,
12,
30,
-33,
13,
-3,
-6,
39,
44,
10,
11,
5,
26,
-6,
11,
-15,
-36,
75,
-1,
33,
-6,
4,
34,
7,
15,
-14,
15,
-42,
2,
41,
34,
24,
12,
-48,
38,
-15,
-55,
-1,
10,
10,
-7,
-51,
-21,
-15,
6,
-21,
52,
29,
-37,
-17,
-36,
31,
-36,
5,
-42,
9,
49,
-5,
-22,
-6,
-4,
25,
-7,
-5,
22,
0,
-36,
12,
-17,
40,
24,
12,
16,
-5,
0,
-25,
-12,
13,
-5,
-17,
24,
-17,
0,
-32,
33,
-13,
4,
-18,
16,
-52,
14,
42,
-24,
-3,
6,
2,
-1,
-30,
12,
-57,
19,
19,
0,
-10,
3,
-69,
6,
31,
-17,
35,
19,
-5,
-45,
-22,
-22,
-4,
-44,
-20,
28,
10,
13,
-2,
-36,
28,
14,
6,
16,
16,
-32,
4,
-48,
13
] |
R. B. Burns, P. J.
Plaintiff and defendant entered into a joint venture agreement concerning the construction project known as the St. Ignace By-Pass job. Later this joint venture agreement was, for practical purposes, extended to include two other jobs known as the Indian River job and the Amasa job.
Plaintiff lacked the required qualifications set by the Michigan state highway department to bid on a job of this size. After several conferences it Avas agreed that the defendant Avould submit a bid in its name but that the work Avould be handled as a joint enterprise betAveen the parties, and the basic agreement was reduced to writing.
Plaintiff filed suit for monies dne under this agreement and defendant counterclaimed for excessive wear to its tires and scrapers. At the close of the trial defendant also claimed the contract was illegal and, therefore, unenforceable because the parties had not complied with the Michigan state highway department standards and specifications.
The trial court allowed certain setoffs to the defendant but denied the counterclaim for excessive wear to its tires and scrapers and entered a judgment for plaintiff.
MCLA § 123.501 (Stat Ann 1969 Rev § 5.2311) sets forth the requirements of bidders on public works. The object of the statute is to reduce the likelihood of the receipt of bids from firms not qualified to perform or complete the work. Malan Construction Corp. v. Board of County Road Commissioners, The County of Wayne (1960), 187 F Supp 937. The defendant was qualified to bid on the job in question and deviations from the highway specifications would not make the contract illegal. Presumptions favor the legality of contracts Kull v. Losch (1950), 328 Mich 519.
After the defendant’s bid was accepted by the state highway department the plaintiff and defendant entered into the joint venture agreement. The parties agreed in court that the contract did not cover everything between the parties and that it was subsequently varied by parol agreement. In fact the evidence shows that the rental rate on various equipment was adjusted.
Both companies knew at the time they were preparing bids for the St. Ignace job that considerable work would be in rock and they had investigated the feasibility of using a method called ripping to avoid drilling and blasting. Paragraphs C and D of the contract provide:
“C. That equipment for the work shall be supplied on equal shares to the extent that each company is able to make the equipment available, but in the event one company should not have available sufficient equipment to provide its 50% share, the other company should have the right to provide any additional equipment considered necessary for the efficient prosecution of the work before equipment is rented from other sources. The hourly rental rates for all equipment furnished by the two companies shall be the monthly rates set forth in the A.E.D. 1958 10th Edition compilation of rental rates divided by two (2) and the result divided by one hundred seventy-six (176), except for new equipment purchased specifically for the above works, which shall be rated separately.
“D. Each company agrees to deliver and remove its own equipment at its own expense and each company further agrees to assume the maintenance of its own equipment. Joint Venture agrees to pay operators, furnish fuel, motor oil, lubricants, filters, replacement cables and scraper and grader cutting edges. In the event that special tires shall be required for some of the scrapers because of the rock involved, this matter shall be discussed and agreed upon before this type of work is begun.”
Special tires were not used and the record does not indicate that there was any further discussion of the matter.
There was conflicting testimony in the trial court as to the extent of tire wear and scraper wear due to working in rock and as to the cause of the tire wear and damage. There was conflicting testimony as to whether the parties had an agreement covering excessive tire and scraper wear. The trial court held that the parties did not reach any agreement in this regard. The trial court in its opinion pointed out that the contract provided for rental rates to be paid by the joint venture to each partner for the use of its equipment and there is nothing in the written contract to indicate that the parties contemplated additional compensation to either party for the use of its equipment. The trial court held that the defendant had failed to establish by a preponderance of the evidence its counterclaim that the parties had agreed, either expressly or by implication, that excessive tire wear or scraper wear would be compensated for over and above the equipment rental rate.
After reviewing the entire record we cannot say that the trial court’s verdict was against law or contrary to the weight of the evidence.
Affirmed. Costs to appellees.
All concurred. | [
13,
34,
-35,
-45,
45,
32,
-34,
-41,
12,
58,
48,
-5,
54,
-42,
47,
-15,
-28,
-1,
-31,
-37,
-64,
-31,
27,
-26,
-52,
-13,
34,
-47,
15,
30,
-37,
-5,
-52,
28,
-24,
-1,
19,
9,
-1,
40,
43,
8,
-4,
-30,
2,
-1,
38,
-36,
66,
-23,
-12,
27,
-26,
21,
34,
25,
2,
-47,
8,
-19,
24,
-39,
45,
18,
10,
-14,
19,
67,
60,
-9,
-3,
-3,
8,
-8,
-13,
-8,
23,
13,
13,
6,
56,
35,
34,
-18,
-39,
42,
-29,
-23,
-29,
-17,
-53,
-39,
39,
40,
-8,
-26,
-64,
-13,
-11,
-4,
12,
31,
24,
-14,
-3,
13,
-31,
-64,
-1,
63,
1,
10,
35,
-43,
-19,
-45,
15,
-1,
32,
15,
-26,
3,
-11,
-10,
-73,
-18,
-30,
0,
-34,
0,
28,
7,
-7,
71,
41,
26,
14,
27,
24,
36,
-15,
34,
-43,
20,
-16,
36,
0,
-47,
-30,
-45,
-11,
-13,
36,
-3,
-3,
-7,
34,
-41,
57,
-53,
51,
27,
6,
9,
-22,
-4,
7,
0,
-3,
-12,
37,
-20,
6,
-81,
24,
-10,
67,
-2,
-11,
9,
-5,
-3,
-2,
5,
1,
-13,
-18,
25,
-9,
16,
57,
-60,
-25,
24,
-13,
13,
-17,
16,
-16,
3,
1,
-65,
7,
10,
-4,
-8,
0,
24,
-3,
36,
30,
30,
15,
-38,
-33,
45,
15,
19,
14,
-107,
17,
-63,
11,
-17,
-18,
-53,
-45,
-15,
105,
-27,
-15,
-3,
8,
14,
-17,
-34,
19,
-20,
23,
14,
-1,
-41,
-50,
-30,
23,
-31,
-40,
-36,
51,
3,
-20,
-33,
-20,
-27,
-15,
-40,
-8,
26,
-24,
31,
-47,
1,
-54,
-58,
7,
12,
-25,
39,
-47,
29,
-32,
5,
0,
-3,
-54,
-20,
-27,
31,
-25,
-18,
17,
-4,
-64,
-12,
1,
56,
-15,
46,
-50,
27,
47,
17,
5,
-42,
17,
66,
84,
0,
14,
77,
-27,
-21,
-6,
-30,
26,
-48,
-41,
18,
9,
10,
-48,
-62,
4,
17,
-4,
-36,
-12,
1,
22,
-38,
61,
31,
19,
8,
-6,
-1,
4,
38,
-5,
32,
-8,
-22,
17,
10,
-37,
-40,
17,
32,
7,
2,
7,
70,
20,
1,
10,
37,
-13,
-34,
38,
-4,
9,
-17,
-12,
23,
27,
2,
-8,
17,
-17,
21,
17,
57,
-3,
-1,
-10,
9,
-20,
42,
-1,
63,
-45,
30,
-21,
-7,
23,
-59,
3,
21,
-41,
41,
-20,
18,
50,
0,
29,
-5,
-13,
-36,
-94,
-38,
-53,
-14,
-2,
2,
-5,
12,
15,
-12,
-24,
-23,
51,
35,
-19,
-32,
-15,
3,
14,
10,
-31,
-16,
-7,
29,
4,
-7,
-19,
-24,
21,
0,
-32,
41,
46,
-35,
9,
27,
4,
-81,
0,
26,
4,
39,
-39,
27,
83,
-37,
19,
-30,
-40,
-7,
-20,
13,
-42,
35,
-2,
-28,
-21,
46,
2,
20,
4,
-13,
26,
29,
-24,
58,
-15,
46,
-21,
8,
25,
18,
-25,
-23,
75,
-83,
-18,
-13,
22,
-34,
-1,
8,
-18,
34,
11,
29,
-27,
-51,
54,
17,
5,
12,
8,
4,
-18,
13,
0,
-52,
20,
48,
4,
29,
14,
26,
-37,
-10,
4,
44,
-13,
12,
-2,
7,
-44,
-11,
-31,
-4,
-10,
19,
21,
2,
-8,
62,
-32,
19,
66,
35,
-15,
17,
6,
24,
-31,
10,
-31,
4,
-60,
15,
-11,
-32,
-23,
18,
-9,
28,
6,
-48,
33,
-41,
-35,
-5,
42,
29,
-17,
12,
23,
28,
1,
25,
14,
-8,
8,
-12,
45,
-3,
-39,
-45,
34,
1,
-47,
45,
1,
-65,
10,
-9,
-5,
26,
39,
21,
5,
6,
-36,
-32,
38,
61,
-13,
71,
28,
3,
-16,
38,
-22,
25,
-46,
15,
1,
-9,
-18,
-5,
-16,
43,
38,
-4,
36,
8,
-48,
25,
-38,
-32,
8,
-25,
33,
0,
39,
-5,
40,
-34,
-40,
-6,
-37,
-32,
-2,
5,
50,
21,
-4,
4,
-33,
-7,
25,
-10,
0,
-54,
71,
53,
41,
0,
-8,
-41,
-4,
77,
59,
16,
3,
-15,
-21,
6,
-61,
32,
35,
-2,
42,
23,
11,
-25,
-1,
-4,
-48,
-13,
-45,
-78,
10,
41,
-16,
21,
-5,
41,
50,
-47,
12,
11,
-10,
21,
-35,
11,
42,
-23,
4,
11,
-35,
-43,
31,
15,
27,
4,
8,
8,
25,
-23,
-3,
-48,
-44,
-8,
57,
45,
47,
16,
-36,
-20,
-13,
-32,
37,
11,
-10,
-30,
-12,
50,
-63,
-44,
30,
1,
-2,
25,
-39,
-32,
-54,
6,
4,
38,
-13,
58,
-14,
10,
22,
70,
29,
-9,
-1,
21,
10,
51,
-69,
0,
-32,
-40,
12,
-91,
-32,
5,
-21,
5,
-6,
-14,
-41,
-6,
-4,
49,
7,
-5,
30,
-26,
-8,
-18,
-66,
-30,
0,
-49,
9,
-2,
-39,
-48,
6,
21,
-35,
8,
-68,
10,
-44,
39,
19,
-10,
-33,
-12,
-44,
4,
-22,
-35,
-29,
-1,
2,
-70,
50,
-8,
33,
-32,
-46,
33,
-15,
-66,
13,
-52,
9,
45,
-6,
-7,
61,
-38,
21,
17,
-39,
-65,
19,
-87,
1,
2,
13,
38,
27,
21,
-42,
-15,
4,
67,
14,
-44,
-29,
-8,
-58,
53,
5,
-39,
-23,
-20,
40,
26,
-48,
-17,
10,
37,
62,
18,
-62,
16,
46,
16,
-23,
-7,
-37,
-17,
-15,
2,
15,
-41,
-12,
-34,
42,
24,
-36,
8,
20,
30,
-23,
-4,
3,
-11,
-9,
1,
-14,
0,
20,
-6,
-66,
-15,
-15,
2,
-27,
-21,
2,
7,
5,
88,
-30,
1,
-33,
-15,
70,
-4,
-50,
0,
-16,
30,
17,
-42,
5,
0,
31,
-2,
5,
35,
40,
-24,
-6,
-22,
44,
-1,
6,
31,
23,
-5,
-22,
-57,
26,
-35,
39,
76,
36,
-20,
-17,
-5,
15,
-55,
3,
-15,
-7,
-18,
-9,
0,
39,
-3,
-20,
-3,
-18,
-42,
-7,
90,
16,
-17,
9,
-8,
-53,
21,
-33,
57,
0,
12,
31,
-15,
-19,
-55,
-45,
-20,
-45,
61,
-8,
54,
-11,
-19,
17,
-18,
6,
-3,
38,
-52,
16,
-2,
26,
-13,
-29,
-19,
15,
4,
7,
-17,
2,
27,
4,
16,
35,
47,
-17,
-31,
7,
59,
22,
-11,
22,
36,
9,
26,
7,
1,
62,
-30,
2,
21,
-47,
51,
-37,
-11,
10,
-4,
-34,
-18,
14,
-66,
0,
-65,
-13,
44,
11,
-22,
15,
-4,
16,
-26,
11,
8,
-35,
0,
-7,
-21,
-59,
-2,
9,
-35,
19,
32,
-75,
5,
19,
30,
28,
6,
35,
-18,
-11,
80,
-8,
-14,
29,
55,
-11,
-27,
10,
-51,
3,
-27,
12,
52
] |
O’Hara, J.
This is an appeal of right from an order of the circuit court modifying a judgment of divorce. It was entered pursuant to what both parties assumed to have been an agreement as to the division of contiguous parcels of realty which were owned by them during their marriage. The land was originally a single parcel.
After entry of the judgment of divorce, the plaintiff wife erected a fence ten feet on her side of what she understood to have been her property line.
Defendant-husband conceived the dividing line to have been otherwise located. He promptly tore the fence down.
The economics of these unilateral relocations was obviously self-defeating. Defendant-husband filed a petition for an order to show cause why the judgment of divorce should not be modified to reflect the actual agreement of the parties.
The trial judge in two hearings took extensive testimony upon the petition. If the situation was confused before the entry of the judgment, the confusion was compounded after the testimony on “clarification” was adduced.
Basically, it appeared that the “agreement” so-called was based upon a dividing line drawn by a surveyor on a plat and was not in fact an “on the premises” survey. The line thus drawn was unrelated to what either party thought each was to receive.
In weary finality, the trial judge who had scented difficulty on the hearing of the divorce case in chief and had required the parties to execute the real property settlement agreement before a judgment was entered, had this to say:
“You know the last time I just thought I ought to take you both outside and * * * I am not going to say what I should have done * * *. I should never have granted the divorce in the first place. You two deserve each other.”
Diligent counsel for plaintiff has carefully briefed the legal issues as he conceived them. ' With his statement of the controlling law we have no dispute.
It appears, however, that the factual basis to which that law should have been applied was in dispute.
We can only conclude, as did the chancellor, that:
“There was a mutual mistake of fact; if not a mutual mistake of fact, then there was fraud.”
We are unable to find from the record that there was any purposeful fraud upon the court, but we do concur with the court below. There was indeed a mutual mistake of fact.
The order amending the judgment entered pursuant to the property settlement is affirmed. For the controlling law, see Keeney v. Keeney (1965), 374 Mich 660, 663. Costs to the defendant.
All concurred. | [
-2,
-4,
-24,
-17,
-50,
-49,
13,
12,
14,
43,
1,
10,
-24,
47,
0,
-62,
-8,
-19,
26,
51,
-14,
-8,
-19,
76,
44,
3,
40,
-11,
-14,
17,
35,
13,
-39,
27,
-10,
-6,
37,
22,
19,
18,
2,
-31,
-23,
-37,
-55,
14,
-10,
-52,
2,
-15,
-26,
-23,
28,
-6,
-23,
10,
-39,
26,
13,
-40,
-17,
18,
-2,
29,
13,
32,
36,
-16,
-28,
-32,
-32,
-31,
0,
-50,
-18,
20,
40,
0,
-22,
8,
30,
17,
28,
4,
31,
25,
64,
19,
-11,
38,
-5,
13,
-4,
-1,
-31,
41,
26,
9,
56,
26,
-16,
18,
27,
20,
-19,
29,
-4,
-31,
59,
-14,
55,
-17,
4,
0,
-10,
27,
-43,
-50,
-11,
-66,
17,
16,
39,
5,
35,
-35,
30,
-28,
-24,
-29,
26,
-10,
-55,
-15,
32,
-55,
-21,
-13,
39,
-10,
48,
-11,
27,
-24,
28,
-26,
30,
-28,
-67,
-45,
-8,
0,
-4,
2,
34,
13,
-22,
-21,
-13,
-35,
64,
34,
0,
21,
-48,
21,
-66,
-1,
-46,
17,
70,
-10,
-54,
-16,
-34,
9,
1,
32,
-23,
-6,
-4,
14,
20,
-25,
-5,
-6,
-37,
-16,
-29,
10,
2,
4,
30,
42,
55,
52,
5,
30,
2,
-4,
-28,
27,
18,
32,
-47,
-12,
-24,
24,
-44,
4,
-24,
-9,
-22,
-32,
-36,
12,
46,
-4,
-33,
40,
20,
3,
-30,
5,
-51,
-38,
0,
-4,
15,
20,
-1,
-7,
-14,
3,
9,
7,
-12,
6,
22,
-39,
39,
58,
-33,
-28,
10,
4,
24,
17,
51,
-3,
-41,
11,
-5,
24,
29,
-2,
-8,
21,
-13,
-34,
23,
39,
-15,
-6,
19,
7,
8,
-32,
15,
-4,
-22,
-15,
-20,
-2,
21,
6,
-7,
19,
-55,
29,
25,
67,
-2,
33,
-35,
25,
38,
34,
70,
66,
1,
-44,
-38,
6,
0,
6,
8,
-3,
21,
-38,
-1,
-53,
39,
16,
-4,
-11,
31,
-38,
-10,
-12,
3,
20,
-11,
50,
17,
18,
-43,
-7,
4,
-60,
-3,
14,
21,
19,
37,
-5,
73,
-22,
-31,
-3,
-2,
26,
5,
30,
55,
-19,
-16,
-9,
-49,
-35,
30,
-31,
29,
-9,
64,
26,
7,
6,
-9,
-3,
-22,
21,
-25,
25,
-65,
-64,
14,
-72,
-8,
-40,
22,
19,
-30,
-27,
-20,
31,
6,
-51,
3,
26,
21,
0,
-13,
-26,
2,
-2,
-6,
13,
-13,
18,
-18,
28,
-7,
-17,
56,
13,
-58,
-8,
-4,
-15,
-33,
-28,
25,
-1,
-27,
11,
35,
0,
-6,
-29,
7,
-13,
-26,
-10,
-47,
3,
-11,
-22,
-63,
-4,
-15,
-39,
21,
5,
-9,
22,
17,
-25,
27,
24,
9,
-12,
3,
-30,
-35,
-55,
0,
-58,
-14,
29,
-42,
-12,
-1,
-27,
29,
20,
-23,
-19,
-21,
14,
-39,
-2,
-15,
43,
-30,
-8,
-23,
3,
16,
36,
10,
-4,
-12,
0,
-29,
-45,
46,
-6,
-1,
-59,
73,
0,
33,
-13,
1,
-60,
-69,
-43,
14,
0,
-30,
27,
57,
75,
12,
7,
-3,
0,
-29,
-42,
13,
-18,
-8,
2,
-19,
33,
-35,
0,
0,
2,
-17,
8,
29,
-25,
18,
-51,
20,
-4,
4,
7,
-18,
33,
32,
-22,
31,
-1,
-39,
-27,
57,
54,
3,
-33,
55,
56,
-13,
6,
12,
-1,
28,
18,
-4,
-36,
-20,
-83,
26,
-18,
-12,
35,
-7,
19,
-4,
60,
18,
-21,
-16,
39,
-17,
-40,
-2,
-18,
-64,
42,
-3,
51,
19,
34,
25,
-35,
-33,
-7,
29,
-41,
18,
-20,
9,
28,
-19,
25,
-1,
-28,
7,
-20,
-11,
19,
30,
-7,
0,
-7,
-8,
30,
8,
-24,
-2,
5,
25,
-5,
-21,
-25,
2,
-10,
-44,
12,
-70,
-40,
57,
37,
17,
36,
51,
-20,
-23,
-27,
20,
-23,
21,
-65,
-18,
1,
10,
14,
-19,
-10,
-54,
0,
-13,
-30,
19,
70,
-32,
0,
12,
-21,
-43,
-3,
37,
34,
42,
-6,
-4,
34,
6,
41,
-25,
-15,
29,
-58,
49,
54,
-27,
13,
24,
9,
69,
36,
26,
29,
3,
-17,
0,
11,
45,
21,
-54,
-16,
-16,
22,
-28,
-6,
12,
-2,
6,
67,
-2,
-15,
46,
-11,
37,
-19,
-4,
-12,
-7,
-27,
28,
17,
0,
9,
-10,
1,
-15,
-5,
-8,
-9,
16,
20,
33,
44,
26,
34,
34,
5,
8,
-41,
-55,
-36,
-22,
-7,
-59,
16,
16,
61,
-6,
-55,
20,
-15,
-1,
-17,
1,
2,
29,
-6,
33,
17,
36,
32,
5,
0,
23,
-16,
-23,
-6,
0,
-4,
-16,
-36,
-7,
0,
53,
3,
-45,
-42,
20,
28,
-23,
-36,
0,
18,
14,
-42,
31,
-7,
1,
4,
-19,
1,
-38,
28,
18,
-9,
8,
-41,
0,
-25,
12,
9,
9,
4,
9,
32,
-27,
19,
56,
-17,
39,
15,
-17,
4,
-22,
-12,
1,
-30,
8,
-3,
-60,
11,
-8,
-21,
-24,
-72,
7,
12,
-25,
-32,
3,
18,
-24,
44,
14,
25,
-2,
-16,
-62,
2,
-7,
-28,
14,
-13,
14,
-37,
31,
42,
-23,
-19,
-16,
-4,
13,
10,
-23,
-16,
-41,
-31,
33,
29,
-8,
23,
-14,
21,
-65,
32,
-11,
36,
35,
0,
0,
-15,
-35,
-19,
-4,
8,
-30,
-13,
0,
25,
-10,
12,
20,
-10,
24,
-21,
-28,
44,
40,
-51,
38,
28,
26,
-30,
0,
8,
-22,
4,
-29,
-36,
-38,
-17,
37,
32,
-42,
25,
-2,
-18,
11,
-3,
32,
28,
0,
-23,
0,
41,
-35,
19,
9,
-17,
10,
-30,
10,
-17,
3,
47,
31,
-15,
-2,
-35,
-11,
38,
-1,
17,
6,
-62,
-21,
12,
-13,
-30,
-53,
30,
-39,
-38,
28,
6,
-41,
23,
24,
41,
43,
17,
-23,
-6,
-16,
-27,
2,
-25,
-7,
2,
-31,
-13,
41,
27,
-8,
31,
1,
-10,
17,
-22,
-30,
-35,
-15,
19,
-25,
-11,
-12,
-23,
8,
25,
-50,
-24,
11,
13,
4,
31,
35,
4,
42,
-7,
24,
-7,
58,
-12,
-26,
12,
26,
-7,
-20,
-46,
-17,
34,
-34,
-15,
-21,
-1,
11,
3,
-60,
67,
-32,
23,
0,
9,
-16,
-49,
-71,
-40,
-28,
50,
1,
-39,
7,
-35,
41,
63,
-44,
-44,
0,
-68,
25,
-27,
4,
-7,
28,
7,
-30,
-23,
12,
30,
-5,
64,
-14,
-8,
8,
-18,
-44,
-5,
6,
-67,
47,
4,
-48,
41,
-27,
-20,
46,
27,
2,
-20,
34,
-18,
21,
-39,
23,
52,
-6,
-30,
-25,
24,
91,
39,
-58,
36,
-50,
-4,
-12,
-50,
15,
20,
8,
30
] |
Levin, P. J.
The plaintiff complains that the single-family residence zoning of his property is unreasonable. He appeals a judgment denying his claim.
The plaintiff owns a lot in the City of Birmingham, Michigan. The lot is in a block bounded by Maple (15-Mile) Road on the north, Forest Avenue on the south and Adams Road on the east. The lot is located at the southeast corner of the block, i.e., at Forest and Adams.
The northerly and southerly dimension of the block is 800 feet, the westerly and easterly dimension is 400 feet.
The northerly two-thirds of the block is improved with office and other commercial buildings. A portion of that two-thirds of the block — just a short distance north of the plaintiff’s lot — is used as a parking area.
The southerly one-third of the block, in which plaintiff’s lot is located, is zoned residential, except for the westerly 175 feet which is zoned business. There is a residence on Adams between the plaintiff’s lot and the parking area to the north.
Immediately west of plaintiff’s lot there are seven single-family residences and two vacant lots on the north side of Forest. There are seven single-family residences and three vacant lots across the street on the south side of Forest. Both sides of Forest east of Adams have been improved with single-family residences.
The area immediately west of the block is zoned business.
Although the plaintiff contends that he should be permitted to erect a small office building on his lot, he does not contend that its zoning for single-family residence use is irrational. He seems to recognize, in light of the existing single-family residences on three sides of his lot, that the present zoning bears, as it is frequently expressed, a substantial relationship to “public health, safety, morals or the general welfare”.
Plaintiff claims that the zoning of his property is, nevertheless, unconstitutional because the lot cannot reasonably be used as it is now zoned. It is well established, as plaintiff contends, that zoning of particular property, although rational, which prevents any reasonable use of the property is confiscatory and for that reason invalid.
Whether zoning prevents any reasonable use of particular property is more a question of fact than of judgment. The “debatable question” criterion which limits appellate review when the rationality of zoning is put in issue does not govern when the factual question presented is whether particular property can reasonably be used as zoned.
At trial, the testimony was that property on the north (plaintiff’s) side of Forest had been bought and sold at a premium (i.e., for an amount in excess of its value for single-family residence use) because speculators believe that ultimately it will become possible to improve such property for commercial purposes. This speculative element must, of course, be eliminated; the value which speculative buyers and sellers visualize would not be material on the question of whether the plaintiff’s lot can be used as it is now zoned. On this the parties appear to. be in agreement.
One of the plaintiff’s expert witnesses testified that after eliminating the speculative element the plaintiff’s lot and any residence that might be there constructed would probably be worth less than the cost of construction and, consequently, the lot itself was worthless. A planning consultant testified that the lot is not suitable for single-family residence use.
A city planner testified for the city, however, that the lot could be used as now zoned. Another witness for the city testified that vacant lots in the area had been sold at various prices, some as high as $7,500, and that the plaintiff’s lot was worth two-thirds of the value of lots not having the locational disadvantages of adjacency both to the commercial area to the north and heavily trafficked Adams. This testimony was corroborated by one of the plaintiff’s expert witnesses who testified that, after eliminating the speculative factor, the lot was still worth $4,500. The trial judge found plaintiff’s lot was worth $4,500 for use as a single-family residence.
The plaintiff emphasizes the heavy traffic on Adams and Forest, the proximity of the lot to the commercial area to the north and other factors which he asserts make it undesirable as a residential lot. These unfavorable factors would, of course, affect the market value of the property, but the testimony shows that they were taken into consideration by the witness who testified that the lot as now zoned was worth two-thirds. of what lots not so disadvantaged are worth and by the witness who said the lot was worth $4,500.
The fact that the plaintiff’s lot is unimproved does not establish that it cannot reasonably be used as it is now zoned; the former owners and the plaintiff may have simply postponed development until, hopefully, it can be improved commercially.
The lot is relatively small; it would not be necessary to install utilities or make other on-site improvements to make it usable. The lot could be sold as is directly to an end user.
If zoned for office use the plaintiff’s lot would be worth $45,000. The disparity between the $4,500 value, as presently zoned, and the $45,000 value if zoned for office use would have some relevance if the issue was whether present zoning is rational. It is not relevant where, as here, the issue is whether present zoning deprives the property of any reasonable use.
Zoning restrictions clearly have an affect on value. They may enhance value by barring incompatible uses. They may depress value by precluding an advantageous use.
If a zoning restriction depresses value, then the disparity between the value of the property as zoned and what it would be worth if it were zoned differently or not zoned at all is, in a sense, “confiscated” by the zoning restriction. It is, however, manifest that “confiscation” of a segment of value by a zoning restriction does not automatically entitle an owner to a declaration that the restriction is invalid. Otherwise, only zoning which enhanced the value of all property subjected to the restriction would be valid.
Here, as in many sectors of the law, our definitional difficulty is attributable to the elasticity of the terms we are seeking to define. The word “confiscation” can refer to partial as well as total destructions of value. The term “reasonable use” in the phrase “deprives the property of any reasonable use” may refer to the “feasibility” of tíre proposed use, or it may refer to the “rationality” of the use.
A zoning restriction deprives the zoned property of any reasonable use and is, therefore, confiscatory if all permitted uses are so devoid of feasibility that the restriction has accomplished the destruction of all usable value.
In judging the rationality of zoning, the interests of the individual property owner are balanced with the needs of the community. Disparity in value is a factor; a large disparity in value may be persuasive that existing zoning is irrational. Nevertheless, where the issue is the rationality of the zoning restriction, the courts have generally deferred to the judgment of the governmental authorities to whom the people’s representatives have delegated the responsibility of balancing the interests of the individual owner and of the community.
Where, however, the individual owner claims that none of the permitted uses are feasible, the question presented has been viewed as essentially judicial; we do not balance, we seek to determine the truth of the alleged fact that the permitted use is unfeasible. In deciding that disputed factual ques tion, evidence that the land would be worth more if it were zoned differently or not zoned at all is not pertinent because, even if true, it does not negate the feasibility of the use or uses permitted by the challenged zoning restriction.
There are, of course, cases where the zoning is both unfeasible and irrational.
We have reviewed the trial judge’s findings of fact to determine whether they are clearly erroneous (GfCR 1963, 517.1) and have concluded that he did not clearly err in finding that the plaintiff’s lot can be reasonably (feasibly) used as it is now zoned. The witness who testified that the lot was worth $4,500 as now zoned said it would cost approximately $20,000 to construct a residence on the lot comparable to existing residences. And that if the lot is so improved, the property would be worth $24,500 to $25,000 after discounting for the unfavorable locational factors. It is perfectly understandable that the judge concluded that a lot, upon which a residence can be constructed and which for such use is worth $4,500, is a lot that can feasibly be used as it is zoned and, therefore, that the present zoning is not confiscatory or unconstitutional.
Affirmed. Costs to defendant.
Plaintiff applied to the city for a rezoning of the property in 1966 and, when his application was denied, commenced this action.
The lot is 152 feet on Forest and 62 feet on Adams. There is a 25-foot setback requirement from both Adams and Forest.
See Sisters of Bon Secours Hospital v. City of Grosse Pointe (1967), 8 Mich App 342, 349.
The fact that there has been a business use at the southwest corner of the block, 450 feet west of the plaintiff’s lot, since 1936 shows not only, as plaintiff urges, that commercial uses are not in compatible with the continuance of the residential character of the street, but also that the city has succeeded in stemming the tide of commercial development on Forest. Zoning must begin and end somewhere. See Real Properties, Inc., v. Board of Appeal of Boston (1946), 319 Mass 180 (65 NE2d 199, 201).
Ervin Acceptance Company v. City of Ann Arbor (1948), 322 Mich 404, 408; McGiverin v. City of Huntington Woods (1955), 343 Mich 413, 419; Bassey v. City of Huntington Woods (1956), 344 Mich 701, 704; Pere Marquette R. Co. v. Muskegon Township Board (1941), 298 Mich 31, 37; Grand Trunk W. R. Co. v. City of Detroit (1949), 326 Mich 387, 399; Frendo v. Township of Southfield (1957), 349 Mich 693, 698; Nectow v. City of Cambridge (1928), 277 US 183 (48 S Ct 447, 72 L Ed 842).
Brae Burn, Inc., v. City of Bloomfield Hills (1957), 350 Mich 425, 434; Alderton v. City of Saginaw (1962), 367 Mich 28, 33.
The city planner conceded that it was “conceivable” that in the future the lot would be used commercially. Such a change in circumstances might well require a different result, see Anno: Judgment denying permit for use of premises under zoning regulations as bar to subsequent application, 71 ALR2d 1362.
The plaintiff is not faced with the problem which confronted the property owner in Krause v. City of Royal Oak (1968), 11 Mich App 183.
Since the expert who asserted that the lot was worth $4,500 did not include in his calculations a discount for a builder’s profit, we take it that the value stated assumed a sale to an end user.
Janesick v. City of Detroit (1953), 337 Mich 549, 555; City of Howell v. Kaal (1954), 341 Mich 585, 589, 590.
See Yale Development Company v. City of Portage (1968), 11 Mich App 83, 86, 87; Muffeny v. City of Southfield (1967), 6 Mich App 19, 23.
See Fenner v. City of Muskegon (1951), 331 732; Ervin Acceptance Company v. City of Ann Arbor, supra; Bassey v. City of Huntington Woods (1956), 344 Mich 701.
See Janesick v. City of Detroit, supra; Smith v. Village of Wood Creek Farms (1963), 371 Mich 127; McGiverin v. City of Huntington Woods, supra; Grand Trunk W. R. Co. v. City of Detroit, supra. | [
0,
47,
19,
-64,
-52,
-4,
30,
83,
-36,
41,
26,
12,
30,
52,
97,
-23,
-10,
11,
10,
34,
-31,
-11,
-21,
2,
10,
0,
5,
34,
8,
46,
22,
-33,
-43,
7,
-68,
57,
40,
1,
13,
37,
45,
-31,
-4,
-54,
0,
-18,
20,
-14,
5,
-7,
-26,
26,
37,
-5,
-47,
-39,
6,
69,
9,
36,
-39,
13,
-10,
41,
55,
37,
36,
34,
-5,
-37,
-25,
0,
-3,
0,
31,
11,
47,
-1,
-15,
-5,
-34,
42,
28,
1,
-22,
-22,
-19,
-15,
-12,
-46,
-11,
-46,
13,
15,
-20,
38,
38,
0,
2,
-24,
27,
71,
41,
30,
-54,
22,
-34,
-26,
58,
-11,
-2,
13,
-30,
-6,
-15,
-18,
36,
57,
43,
6,
-11,
-19,
-8,
28,
-20,
-17,
21,
-31,
-62,
-61,
11,
39,
-8,
-39,
5,
13,
15,
9,
25,
71,
64,
-19,
23,
-16,
-6,
-47,
27,
-11,
-43,
1,
0,
29,
-30,
25,
16,
-3,
18,
-30,
14,
21,
17,
-20,
-13,
12,
-41,
-15,
-71,
58,
-25,
16,
28,
0,
2,
-33,
6,
-18,
0,
11,
-53,
4,
-31,
21,
20,
3,
-27,
1,
-2,
-34,
-8,
-6,
23,
-16,
27,
-39,
4,
60,
19,
28,
-79,
-46,
-22,
-31,
8,
-52,
5,
-24,
-58,
-14,
11,
2,
-36,
-1,
-42,
-25,
56,
3,
40,
0,
10,
13,
-1,
-18,
-11,
13,
-42,
-40,
-9,
1,
49,
-23,
0,
-49,
14,
7,
-6,
10,
8,
13,
-10,
-19,
14,
78,
-3,
7,
-43,
37,
-22,
50,
21,
-51,
-45,
-80,
-25,
0,
-3,
-40,
-19,
-44,
14,
0,
36,
35,
-10,
9,
15,
12,
-6,
-33,
-56,
21,
-79,
56,
-16,
33,
-23,
-6,
-6,
3,
23,
-23,
9,
12,
32,
5,
-10,
36,
66,
32,
14,
31,
-22,
15,
-34,
9,
40,
-15,
38,
-6,
-17,
-10,
20,
12,
-3,
3,
29,
9,
26,
-15,
5,
11,
17,
-28,
-23,
15,
-13,
-18,
-8,
-20,
10,
-65,
56,
14,
-11,
52,
11,
22,
41,
-10,
11,
-17,
8,
41,
9,
86,
-12,
11,
27,
-48,
-29,
-11,
57,
-10,
9,
12,
78,
11,
-25,
26,
-5,
15,
-2,
19,
-51,
-8,
-27,
-2,
-1,
-31,
-40,
25,
23,
12,
-10,
-12,
-78,
-25,
-17,
-9,
-38,
15,
6,
-43,
-17,
34,
58,
-37,
9,
-6,
-60,
19,
-12,
-30,
39,
-8,
63,
49,
-37,
-45,
-5,
-15,
-73,
-46,
24,
39,
2,
-23,
-2,
24,
29,
-37,
14,
-8,
-64,
28,
-15,
31,
57,
-2,
-18,
32,
-40,
-27,
52,
9,
-37,
52,
-13,
-46,
-1,
15,
-25,
-7,
24,
0,
-29,
-3,
-35,
-8,
-9,
40,
-38,
12,
7,
-34,
9,
21,
-22,
-50,
-64,
-4,
-51,
24,
-30,
-31,
-44,
-43,
-36,
19,
5,
-20,
-1,
55,
-66,
-38,
-60,
-31,
39,
-4,
15,
-19,
37,
-6,
-26,
-38,
9,
-56,
-69,
21,
-1,
-34,
-27,
42,
32,
18,
25,
-5,
-21,
35,
-37,
-4,
-15,
-46,
56,
14,
-24,
-10,
-15,
31,
-39,
27,
-35,
68,
29,
-16,
-9,
-7,
24,
-8,
0,
33,
43,
53,
-22,
5,
0,
-42,
31,
10,
28,
22,
-2,
-3,
8,
64,
0,
30,
21,
-22,
-6,
-39,
46,
-45,
-2,
-35,
11,
-8,
-2,
-1,
10,
11,
32,
5,
14,
0,
16,
-15,
17,
12,
15,
13,
-29,
45,
-8,
45,
-8,
7,
21,
-5,
26,
-32,
24,
-27,
-46,
7,
3,
-23,
-50,
-42,
21,
3,
30,
21,
49,
-3,
52,
7,
4,
-20,
52,
38,
-71,
-4,
32,
-45,
-19,
-1,
11,
29,
-14,
0,
-30,
-13,
-19,
-40,
31,
21,
-5,
10,
5,
0,
4,
6,
-5,
-24,
-3,
-64,
-25,
17,
28,
-3,
19,
-23,
-32,
-37,
-4,
-25,
-9,
-5,
12,
-7,
31,
-3,
-48,
24,
2,
39,
-18,
24,
41,
10,
31,
17,
7,
17,
20,
-31,
37,
54,
-26,
25,
-15,
-28,
-3,
8,
80,
-8,
42,
-12,
-18,
-17,
-21,
19,
-29,
9,
13,
28,
1,
-27,
-34,
-16,
-14,
47,
26,
-54,
60,
-69,
9,
-24,
2,
-16,
38,
-33,
-9,
-1,
-26,
-23,
-16,
-26,
-1,
-13,
-1,
31,
-10,
59,
8,
9,
1,
-6,
19,
58,
-4,
-37,
-35,
-1,
58,
18,
22,
-35,
53,
-21,
13,
-41,
82,
-48,
-2,
3,
-8,
13,
-24,
31,
15,
3,
58,
-33,
-76,
53,
61,
-24,
-63,
-15,
6,
0,
63,
18,
13,
10,
14,
-32,
-15,
47,
53,
-25,
-65,
-57,
28,
-18,
47,
6,
-19,
19,
6,
1,
5,
-13,
-18,
-7,
39,
-19,
-12,
-41,
0,
35,
15,
-29,
-36,
-33,
43,
6,
-26,
0,
21,
-16,
27,
-12,
-21,
-43,
-14,
-7,
-19,
-13,
-27,
-77,
-44,
31,
-30,
-39,
29,
-37,
9,
3,
-46,
-16,
13,
-7,
-12,
18,
-54,
-31,
14,
-16,
-22,
-30,
-22,
-60,
-23,
-18,
-7,
-13,
33,
34,
-30,
-5,
-22,
-37,
-8,
-4,
-18,
-37,
43,
-46,
-31,
31,
-3,
20,
-23,
-13,
-87,
5,
23,
5,
38,
-4,
-29,
-29,
-1,
-15,
61,
50,
-7,
17,
14,
5,
-18,
-4,
13,
-5,
62,
-15,
30,
26,
35,
-11,
22,
46,
-28,
-20,
31,
36,
9,
-28,
1,
-25,
-48,
8,
-15,
28,
-37,
4,
-8,
17,
-42,
53,
48,
24,
34,
-60,
38,
48,
22,
41,
71,
9,
-13,
16,
-20,
39,
-2,
-5,
63,
22,
9,
44,
38,
-35,
71,
32,
-76,
-21,
-15,
6,
58,
-25,
0,
15,
-36,
-19,
11,
-7,
-40,
27,
51,
-11,
1,
12,
-54,
1,
-40,
10,
-17,
-58,
-37,
4,
16,
21,
-14,
41,
12,
18,
-14,
-77,
-40,
-31,
-36,
5,
-1,
-31,
-72,
1,
17,
47,
-17,
3,
-32,
-9,
-50,
6,
-15,
13,
8,
19,
18,
24,
15,
-14,
20,
-27,
14,
-40,
-49,
-18,
-29,
10,
-6,
17,
-13,
1,
-13,
-20,
28,
-44,
-20,
41,
-5,
14,
-14,
-14,
-12,
-29,
-39,
4,
-10,
73,
25,
-1,
43,
24,
64,
0,
-18,
-6,
-32,
-81,
-7,
-39,
-2,
18,
-49,
32,
18,
-14,
4,
-18,
36,
21,
-18,
-6,
53,
21,
-46,
-12,
-16,
-20,
20,
24,
-10,
15,
-16,
25,
-1,
-12,
11,
54,
15,
-15,
20,
20,
46,
-2,
22,
-25,
-42,
31,
23,
4,
2,
12,
-20,
39,
-12,
-39,
20,
5,
-77,
14
] |
Per Curiam.
On August 23, 1968, defendant was convicted by a jury of carrying a dangerous weapon in a motor vehicle, MCLA § 750.227 (Stat Ann 1962 Rev § 28.424). His allegations of error are without merit, and we affirm.
At trial, the arresting .officer testified that while on duty on May 7, 1968, an unknown person informed him that a man had stolen some cigars from a drug store and was still sitting in an automobile outside the store. When the officer approached the automobile, defendant was behind the wheel. Beside him on the front seat, partially covered by newspapers, was a loaded rifle. Defendant was ordered out of the automobile and placed under arrest.
The rifle and some shells were introduced into evidence. Defendant contends that they were obtained as the result of an unreasonable search and seizure and were therefore inadmissible. This argument presupposes a search when, in fact, the officer perceived the presence of the rifle without a search.
In Harris v. United States (1968), 390 US 234, 236 (88 S Ct 992; 19 L Ed 2d 1067, 1069), evidence plainly visible and not discovered as the result of a search was held admissible:
“ ‘It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view, are subject to seizure and may he introduced in evidence.’ ” People v. McDonald (1968), 13 Mich App 226, 234.
Moreover, no objection to the introduction of the evidence was made at trial. See People v. Ferguson (1965), 376 Mich 90; People v. Wilson (1967), 8 Mich App 651.
Defendant alleges that the court erred by accepting the verdict. The record reveals the following:
“(Roll call by the Clerk; all jurors present)
“The Clerk: Members of the jury, have you arrived at a verdict; and, if so, who will speak for you?
“The Foreman: We have, and I will.
“The Clerk: What is your verdict as to the defendant Isadore Jenkins?
“The Foreman: We find him guilty.
“The Clerk: Guilty of—
“The Foreman: —carrying a concealed weapon in a car.
“The Clerk: —carrying a dangerous weapon in a motor vehicle?
“The Foreman: Yes.
“(Whereupon the jury was duly sworn by the court clerk.)”
As in People v. Fleish (1943), 306 Mich 8, we believe it is sufficiently clear from the record that the jury found defendant guilty of the crime charged.
Defendant also contends that the court erred on the voir dire. Since defendant expressed satisfaction with the jury, even if there was error, the error was waived. People v. Rose (1934), 268 Mich 529.
Defendant’s allegation of ineffective representation by his trial counsel is groundless.
Affirmed. | [
9,
-20,
44,
31,
-8,
0,
-20,
24,
-34,
56,
34,
-11,
0,
18,
31,
-9,
50,
40,
52,
-61,
-30,
-38,
-83,
33,
-18,
-13,
13,
33,
-41,
15,
23,
6,
35,
-34,
21,
-15,
35,
39,
1,
39,
29,
14,
15,
-2,
-26,
-40,
32,
-3,
15,
7,
65,
-8,
-41,
-6,
0,
20,
21,
2,
45,
-10,
58,
34,
-27,
3,
-25,
-12,
-9,
15,
-35,
-18,
7,
-11,
-16,
-39,
-20,
11,
-12,
17,
-34,
6,
-21,
-21,
54,
-38,
29,
31,
-15,
-23,
-8,
-30,
2,
21,
-35,
-47,
24,
-10,
20,
-68,
40,
3,
-54,
-7,
-23,
43,
-5,
16,
-76,
-14,
9,
-28,
21,
22,
20,
19,
-43,
-28,
-6,
-9,
10,
-16,
20,
33,
70,
-8,
1,
-54,
4,
2,
49,
38,
-18,
27,
18,
-6,
-28,
-17,
-32,
-17,
-2,
-4,
-7,
46,
33,
2,
28,
29,
24,
4,
-10,
62,
-20,
18,
-34,
10,
-31,
-1,
19,
-30,
-8,
12,
-64,
22,
-16,
-41,
19,
6,
-11,
-23,
-58,
-23,
-15,
-22,
44,
14,
69,
18,
-29,
22,
13,
0,
1,
-29,
18,
15,
-1,
-1,
-31,
54,
-43,
-21,
-15,
24,
3,
-26,
25,
23,
-25,
34,
13,
-25,
33,
-51,
-14,
-66,
-8,
4,
20,
27,
31,
18,
-29,
12,
7,
-31,
-13,
-29,
-23,
-9,
-4,
-4,
-30,
-24,
26,
14,
56,
-7,
-22,
23,
-9,
20,
13,
37,
-32,
-9,
-10,
-40,
-12,
-51,
25,
31,
7,
-25,
13,
-19,
17,
-37,
-2,
-14,
32,
23,
17,
-4,
-18,
22,
-42,
-45,
31,
30,
-12,
17,
-17,
48,
-12,
17,
-61,
41,
23,
23,
-27,
23,
-36,
-2,
-29,
23,
26,
-4,
-33,
48,
9,
-31,
-4,
22,
-6,
-21,
-23,
-6,
3,
29,
42,
-25,
33,
-20,
-53,
15,
-17,
0,
43,
14,
-61,
-28,
30,
47,
-15,
-27,
-8,
-26,
-20,
-22,
-53,
12,
6,
36,
6,
33,
-22,
43,
0,
1,
2,
-1,
-47,
19,
-14,
-51,
2,
-23,
4,
-50,
-7,
-15,
6,
-19,
-30,
13,
4,
-3,
-21,
-7,
31,
66,
0,
-33,
-5,
2,
25,
37,
-22,
78,
-71,
-21,
0,
14,
62,
21,
7,
-16,
-43,
-10,
34,
-63,
11,
8,
31,
44,
38,
-20,
-1,
-61,
-25,
24,
-12,
-78,
26,
22,
-65,
-11,
45,
-57,
45,
17,
-17,
18,
16,
-50,
-48,
1,
3,
-27,
19,
27,
-39,
1,
-22,
-30,
-13,
-25,
-6,
-1,
15,
38,
-38,
31,
19,
-3,
-18,
-17,
-41,
2,
-4,
-38,
8,
51,
36,
64,
-8,
-8,
23,
23,
0,
-54,
4,
-24,
-3,
-23,
-16,
-60,
-29,
36,
-4,
-46,
18,
-11,
-6,
-40,
-3,
1,
-18,
-32,
73,
-3,
-43,
-32,
-32,
25,
-29,
10,
-6,
15,
0,
22,
9,
-5,
21,
0,
-10,
55,
72,
-24,
-31,
-51,
2,
-45,
-15,
-12,
-1,
-24,
-90,
-97,
23,
-17,
68,
-10,
-8,
-1,
-27,
-2,
6,
38,
3,
-54,
3,
11,
11,
-8,
-36,
-43,
-27,
-21,
28,
24,
14,
15,
-23,
-38,
-9,
19,
-30,
-1,
-35,
13,
-10,
0,
-10,
-26,
35,
38,
21,
-15,
19,
32,
-1,
43,
-41,
-7,
-24,
-41,
-29,
6,
12,
6,
30,
-42,
-4,
29,
-11,
4,
8,
-35,
-44,
-10,
34,
53,
15,
-11,
40,
37,
-45,
-39,
7,
-19,
34,
26,
24,
-29,
-20,
-13,
-23,
-42,
14,
5,
31,
21,
-18,
-32,
6,
-58,
5,
35,
-28,
-6,
-30,
0,
31,
44,
19,
-10,
-24,
9,
71,
-41,
25,
4,
-5,
-2,
-33,
8,
31,
70,
-23,
9,
-14,
42,
9,
38,
-11,
-24,
34,
13,
-22,
-27,
-19,
2,
15,
-24,
10,
19,
-30,
-3,
-8,
5,
39,
-58,
-15,
53,
56,
17,
16,
-19,
-11,
-39,
56,
-20,
17,
-20,
-28,
10,
-38,
-3,
-26,
0,
-48,
-9,
-16,
19,
6,
-36,
-62,
44,
10,
-60,
-19,
-1,
-26,
-6,
-16,
49,
20,
15,
-31,
-58,
43,
-1,
64,
-50,
23,
14,
-30,
-10,
14,
-75,
-23,
22,
-56,
6,
21,
7,
-22,
-6,
33,
-7,
10,
26,
-64,
-26,
9,
46,
-14,
-32,
0,
6,
25,
-6,
5,
-33,
27,
14,
19,
-11,
-21,
-19,
9,
-44,
13,
-19,
22,
27,
60,
-2,
-7,
-40,
-1,
71,
50,
21,
2,
-13,
53,
32,
5,
-7,
26,
-33,
-29,
2,
-6,
2,
8,
-12,
41,
2,
-65,
46,
-14,
7,
0,
-23,
0,
-38,
-36,
3,
-10,
-24,
13,
16,
-26,
35,
36,
-11,
-25,
-53,
13,
-20,
14,
25,
35,
25,
38,
2,
2,
-35,
-64,
15,
92,
-44,
-5,
-8,
33,
-58,
22,
25,
0,
14,
24,
-21,
-2,
55,
33,
12,
-31,
-40,
15,
11,
12,
-58,
-30,
47,
-27,
18,
5,
6,
-19,
-79,
37,
-28,
-41,
26,
-21,
-37,
30,
4,
-19,
-2,
-12,
-14,
12,
-19,
-33,
-5,
-38,
-19,
50,
7,
-40,
-4,
22,
-5,
16,
27,
-17,
8,
20,
39,
37,
-31,
-24,
-8,
45,
9,
18,
0,
31,
-10,
-13,
-46,
22,
6,
3,
-13,
-3,
-45,
60,
5,
14,
-54,
-49,
0,
50,
-63,
-26,
-3,
-25,
-1,
9,
42,
-6,
-3,
31,
-62,
-12,
37,
69,
59,
43,
27,
14,
17,
-42,
-5,
36,
51,
31,
2,
-32,
-14,
1,
-5,
21,
38,
33,
31,
-75,
21,
-9,
-36,
35,
18,
-2,
-10,
34,
24,
30,
27,
64,
44,
-36,
59,
-4,
-11,
-5,
24,
-2,
-21,
25,
10,
44,
-22,
-64,
-69,
-52,
33,
-11,
29,
12,
15,
-27,
8,
29,
9,
26,
-29,
-8,
8,
-18,
66,
60,
-24,
53,
-13,
6,
-30,
4,
-37,
20,
-20,
15,
10,
-31,
5,
52,
-43,
0,
39,
27,
18,
24,
-45,
-32,
-12,
2,
2,
-39,
7,
11,
-53,
4,
40,
-1,
-32,
15,
-45,
-17,
-48,
-55,
62,
-46,
15,
-13,
29,
-19,
5,
-43,
0,
40,
12,
2,
9,
-14,
-22,
2,
7,
-41,
7,
6,
-6,
24,
60,
19,
-13,
-32,
22,
54,
12,
-8,
-5,
36,
-6,
26,
-2,
-18,
34,
-14,
-34,
-49,
8,
65,
-50,
1,
42,
-36,
-16,
-44,
33,
2,
39,
-49,
34,
-1,
12,
-10,
27,
-35,
-11,
18,
-6,
9,
-9,
0,
3,
-33,
19,
-5,
-30,
-13,
-12,
-31,
38,
-10,
-6,
-15,
0,
-30,
11,
4,
20
] |
Per Curiam.
On January 23, 1958, defendant Samuel Shell tendered a plea of guilty to a charge of second-degree murder. MCLA § 750.317 (Stat Ann 1954 Rev § 28.549). The court accepted his plea and sentenced him to life imprisonment. Defendant now files a delayed appeal, contending his plea is invalid because the court, in accepting the plea, did not establish its truth by direct questioning or otherwise. People v. Barrows (1959), 358 Mich 267; People v. Perine (1967), 7 Mich App 292; People v. Stearns (1968), 380 Mich 704.
OCR 1963, 785.3, as did its predecessor, Court Rule No 35A (1945) (318 Mich xxxix), requires the trial court to “examine the accused * * * and ascertain that the plea was freely, understandingly, and voluntarily made * * * ”. This language has been construed as requiring a “reasonable ascertainment of the truth of the plea”, People v. Barrows, supra. A “reasonable ascertainment of the truth of the plea” has, in turn, been construed to mean that a substantial factual basis for the plea must appear on the record. People v. Bartlett (1969), 17 Mich App 205; People v. Seifert (1969), 17 Mich App 187. We have reviewed the record in the present case and find nothing approximating a substantial factual basis for defendant’s plea. In view of the court’s total noncompliance with the court rule, we reverse and remand the case for withdrawal of the plea.
Reversed and remanded. | [
47,
35,
55,
-30,
-38,
27,
-28,
-5,
-50,
19,
40,
-67,
7,
12,
-1,
-13,
39,
49,
40,
-27,
-33,
9,
0,
3,
-34,
-9,
36,
35,
15,
24,
-4,
55,
-4,
-17,
2,
-53,
26,
-67,
26,
20,
1,
-19,
-39,
-31,
-49,
-39,
-10,
-9,
24,
-3,
26,
0,
5,
-26,
34,
14,
26,
-10,
-9,
3,
8,
5,
-28,
2,
8,
0,
-11,
9,
32,
-43,
-24,
1,
10,
-17,
21,
13,
37,
29,
-11,
6,
9,
19,
52,
-10,
-9,
-5,
6,
-10,
29,
-26,
7,
5,
-37,
-23,
-21,
-24,
15,
-44,
-14,
6,
-65,
5,
27,
30,
0,
30,
-41,
26,
-3,
32,
-10,
14,
2,
-29,
-34,
-24,
-18,
-8,
-6,
-41,
-13,
-23,
33,
59,
-7,
-16,
-21,
-3,
0,
-34,
-13,
42,
46,
-3,
46,
54,
27,
-58,
66,
6,
33,
-35,
1,
-6,
3,
-2,
-16,
24,
-2,
26,
-21,
2,
-17,
14,
22,
11,
-13,
-64,
-13,
43,
11,
11,
-16,
10,
-1,
-22,
-8,
25,
-45,
-45,
29,
-35,
33,
36,
16,
-12,
-7,
-10,
-2,
52,
-63,
14,
19,
-18,
-7,
-33,
-23,
4,
-40,
-34,
-28,
26,
5,
-38,
27,
15,
-36,
17,
4,
0,
-8,
-46,
23,
-6,
1,
14,
-3,
-22,
16,
17,
-44,
-19,
1,
15,
-14,
10,
-26,
20,
-21,
70,
-20,
-7,
10,
13,
-6,
-32,
30,
29,
-15,
39,
15,
12,
-21,
4,
2,
5,
22,
21,
52,
47,
6,
-55,
26,
-4,
53,
46,
20,
-6,
2,
-7,
38,
23,
53,
-15,
-40,
-41,
28,
24,
-42,
-22,
-6,
33,
-4,
-8,
-58,
1,
-33,
0,
-38,
-30,
-12,
12,
31,
9,
-36,
-30,
-33,
-10,
8,
-10,
-10,
27,
-2,
-22,
-45,
-38,
-56,
9,
39,
25,
20,
-2,
-55,
-47,
62,
-4,
30,
-19,
-7,
-20,
50,
-12,
-12,
-37,
21,
4,
14,
21,
-70,
-39,
37,
5,
5,
28,
1,
23,
0,
-12,
80,
-29,
-38,
-22,
0,
11,
-10,
15,
54,
-26,
11,
-30,
-53,
24,
24,
1,
-27,
29,
10,
31,
42,
19,
38,
20,
-31,
-45,
26,
11,
-16,
8,
-16,
-33,
28,
24,
43,
16,
-7,
-7,
-16,
-70,
7,
-23,
42,
-31,
-23,
17,
32,
1,
5,
-11,
36,
27,
-17,
-38,
13,
-49,
9,
22,
67,
35,
-40,
18,
-1,
30,
-31,
-29,
1,
-7,
-19,
-18,
-11,
2,
-63,
-71,
-16,
-32,
-12,
-6,
0,
13,
26,
14,
12,
-40,
27,
-12,
7,
-11,
15,
34,
-13,
39,
21,
39,
46,
49,
-29,
-46,
28,
-25,
9,
-54,
23,
-54,
36,
44,
-10,
12,
-36,
45,
9,
-35,
46,
-5,
8,
-65,
21,
56,
-33,
13,
31,
4,
-24,
-6,
36,
-1,
12,
-12,
0,
-20,
-21,
-20,
9,
46,
21,
-72,
-49,
46,
32,
-26,
-2,
-53,
-23,
-13,
-32,
-35,
-10,
-15,
-63,
-16,
57,
14,
37,
5,
-2,
0,
7,
-2,
45,
0,
46,
-61,
43,
-3,
-42,
-17,
-1,
25,
-35,
-31,
16,
-31,
-53,
0,
-29,
-2,
-19,
12,
0,
-39,
-35,
39,
5,
-11,
23,
-46,
41,
-18,
-27,
-35,
57,
41,
29,
-8,
0,
6,
2,
-13,
29,
-36,
-29,
23,
7,
26,
39,
-52,
30,
-12,
-26,
-27,
6,
-15,
28,
-25,
-39,
-18,
21,
-12,
-32,
4,
-8,
-8,
-3,
40,
18,
5,
14,
-6,
27,
3,
-28,
8,
-69,
-26,
-41,
4,
-5,
-38,
-2,
8,
29,
-37,
-7,
34,
77,
15,
22,
14,
-3,
-25,
54,
-2,
22,
29,
-3,
-22,
-25,
22,
15,
47,
7,
-11,
48,
43,
20,
-10,
-12,
10,
25,
-21,
-24,
-24,
-62,
-26,
33,
-17,
-10,
-24,
-29,
-54,
-8,
45,
40,
16,
-15,
38,
29,
-7,
-21,
9,
18,
-49,
45,
-37,
-22,
4,
-3,
21,
23,
-52,
-31,
40,
15,
20,
-4,
-56,
13,
-37,
-59,
4,
-76,
-28,
-26,
-2,
-33,
-12,
-3,
21,
-2,
49,
0,
-30,
22,
56,
9,
-11,
1,
2,
40,
9,
-2,
-8,
-7,
9,
-13,
-38,
4,
20,
5,
0,
13,
34,
38,
21,
-66,
-39,
-28,
48,
29,
-18,
43,
-14,
1,
-25,
-35,
4,
-11,
27,
-29,
-7,
50,
-3,
-39,
-14,
13,
-9,
44,
-18,
-6,
22,
23,
38,
-44,
14,
-3,
2,
64,
-10,
71,
28,
-3,
-15,
36,
-27,
-17,
-31,
-42,
4,
36,
0,
31,
7,
-49,
17,
-34,
-30,
-8,
11,
-67,
-6,
-9,
-8,
14,
-11,
6,
49,
-22,
3,
40,
-27,
-7,
1,
30,
-28,
7,
-4,
4,
-8,
0,
28,
10,
-10,
-15,
-17,
-47,
22,
-18,
-23,
-12,
-5,
9,
14,
34,
-1,
10,
27,
2,
17,
22,
19,
-3,
-64,
-32,
58,
-29,
-5,
-65,
20,
22,
16,
-14,
5,
5,
-61,
10,
21,
-50,
6,
6,
35,
54,
0,
-10,
27,
-38,
28,
-8,
-40,
-19,
-32,
-22,
2,
4,
14,
-13,
-6,
53,
18,
4,
11,
8,
17,
29,
-11,
19,
13,
-24,
-8,
-4,
-31,
1,
10,
53,
-21,
-27,
3,
-15,
-4,
15,
-3,
9,
-5,
28,
35,
6,
5,
-30,
-1,
26,
-48,
10,
-29,
4,
-1,
55,
54,
3,
-12,
26,
61,
-38,
-13,
14,
-10,
-1,
-22,
0,
56,
-9,
-14,
-2,
45,
10,
1,
35,
41,
15,
-15,
-13,
-3,
30,
-11,
-2,
-5,
-7,
-8,
1,
16,
14,
12,
4,
-29,
-11,
-23,
17,
5,
0,
28,
-28,
-3,
-10,
-13,
-40,
-27,
35,
19,
11,
-14,
-24,
-92,
-24,
22,
34,
48,
-23,
14,
28,
-9,
17,
-20,
-20,
29,
16,
0,
38,
25,
-2,
-15,
-11,
-12,
-27,
58,
-15,
2,
11,
-19,
23,
1,
-38,
0,
51,
-11,
27,
35,
48,
11,
5,
-44,
6,
2,
-39,
16,
8,
15,
-17,
-80,
18,
13,
41,
-44,
-30,
6,
-55,
-8,
-51,
49,
-30,
32,
-9,
-9,
13,
-10,
-11,
-56,
4,
23,
-18,
0,
12,
26,
-24,
6,
-6,
56,
-10,
2,
18,
27,
-15,
-19,
12,
0,
-6,
-33,
22,
-39,
29,
-35,
-7,
-7,
-29,
-27,
18,
-42,
-51,
-19,
-20,
-19,
15,
-23,
-34,
-10,
11,
-22,
-3,
48,
-4,
6,
23,
-16,
-25,
6,
7,
62,
19,
19,
-40,
-54,
5,
19,
-26,
-42,
-5,
8,
22,
-7,
-38,
26,
-6,
11,
15,
17,
-25,
-11,
-38,
-25
] |
Bronson, J.
Defendant, Van Leroy Hampton, was charged with the crime of assault with intent to commit murder. After a plea of not guilty was entered at his arraignment, defendant filed notice of his intention to claim insanity as a defense. The jury returned a verdict of guilty and defendant was sentenced to 7-1/2 to 20 years. Defendant appeals, alleging there was insufficient evidence to sustain a finding of sanity beyond a reasonable doubt. Defendant also claims the court erred by:
a) failing to conduct a separate hearing to determine whether defendant was competent to stand trial;
b) failing to conduct separate trials on the issues of guilt and insanity;
c) refusing to give instructions regarding insanity based upon Durham v. United States (1954) 94 App DC 228 (214 F2d 862, 45 ALR2d 1430);
d) instructing the jurors they were only to be concerned with defendant’s guilt or insanity and not with any punishment or disposition of the defendant;
e) failing to instruct that intoxication may negate the element of intent essential to the conviction of assault with intent to murder.
The court did not err in failing to conduct separate hearings regarding the accused’s competency to stand trial and his insanity; furthermore, no such requests were made at trial. The trial court properly instructed the jurors regarding legal insanity pursuant to People v. Durfee (1886), 62 Mich 487.
Defendant requested that the trial court inform the jury of the disposition of the defendant were he to be found not guilty by reason of insanity. The trial court refused to do so and specifically informed the jurors they were not to concern themselves with the disposition of the defendant and were only to be concerned with his guilt or insanity. Defendant asserts it was error to refuse his requested instruction to the jurv, citing Lyles v. United States (1957), 103 App DC 22 (254 F2d 725).
In the recent Michigan Supreme Court decision of People v. Cole (1969), 382 Mich 695, 720, 721, Justice T. M. Kavanagh stated:
“This appeal makes it mandatory that this Court choose between: (1) the possible miscarriage of justice by imprisoning a defendant who should be hospitalized, due to refusal to so advise the jury; and (2) the possible ‘invitation to the jury’ to forget their oath to render a true verdict according to the evidence by advising them of the consequence of a verdict of not guilty by reason of insanity.
“We conclude that the reasons given in support of the first proposition far outweigh the fear of jury integrity expressed in the second proposition.
“We feel that Lyles v. United States, supra, is the better reasoned authority and hold that in all criminal trials or retrials taking place after the date of the filing of this opinion, where the defense of insanity is present and that issue is made submissible by the proofs, the defendant, upon his own timely request, or upon request of the jury, shall be entitled to an instruction in accord with the rule of Lyles.”
We interpret the above statement to apply as well to cases which, although tried prior to the “date of the filing” of Cole, properly preserved such issue for appeal. Thus, defendant is entitled to a new trial.
Defendant asserts that the intoxication instruction was erroneous. Defendant did not object to the instruction as given, pointing out with particularity the matter to which he objected and the grounds of his objection as is required under GrCR 1963, 516.2.
Since we are reversing on other grounds and a new trial will be required, we need not consider whether, even though timely objection was not voiced, the trial judge failed to perform an affirmative duty to give a correct instruction, an issue which divided this very panel of this Court in People v. Kelley (1970), 21 Mich App 612. The trial court’s attention is directed to Roberts v. People (1870), 19 Mich 401; in that case, as here, the intoxication defense was coupled with an insanity defense.
Reversed and remanded for a new trial.
All concurred.
CL 1948, § 750.83 (Stat Ann 1962 Rev § 28.278).
Four Supreme Court Justices held for the Lyles rule in People v. Cole, possibly five with the addition of Justice Tiiomas Giles Kavanagh, who dissented in our Court in Cole.
This interpretation is born out by the holding in People v. Herrera (1970), 383 Mich 49. Herrera, like the present ease, was tried before Cole was announced and, also like this ease, was reversed and remanded on appeal on the authority of Cole.
“.2 Objections. No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider the verdict, stating specifically the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.” | [
26,
10,
-26,
-5,
-68,
-26,
-22,
4,
-54,
21,
14,
8,
-38,
15,
7,
-22,
-33,
-33,
-9,
-12,
-4,
7,
3,
30,
-35,
-73,
-38,
33,
-19,
-5,
58,
0,
-25,
-15,
18,
23,
17,
-25,
4,
34,
15,
36,
-18,
-28,
-30,
-25,
41,
-23,
43,
14,
12,
-10,
-18,
3,
-31,
-16,
34,
34,
-24,
11,
10,
17,
-25,
-2,
-1,
-34,
-37,
19,
-74,
15,
-58,
-58,
11,
-45,
11,
-18,
-19,
13,
41,
-11,
28,
22,
32,
-9,
26,
-27,
-20,
-70,
-9,
15,
16,
-14,
-43,
-38,
45,
0,
57,
-8,
26,
-5,
15,
-18,
26,
36,
-37,
6,
-29,
21,
-22,
-12,
22,
10,
30,
17,
-45,
-16,
-21,
-24,
-76,
5,
-2,
-15,
41,
11,
39,
-9,
4,
-25,
43,
-47,
8,
29,
0,
-18,
-42,
-5,
19,
7,
6,
13,
-1,
11,
43,
-4,
45,
37,
-7,
-3,
-2,
14,
-17,
6,
-33,
22,
5,
-66,
-4,
-25,
4,
36,
34,
27,
13,
-15,
4,
-27,
-51,
-3,
8,
-39,
-9,
-6,
38,
29,
2,
-18,
-21,
4,
17,
21,
33,
20,
21,
24,
22,
-1,
-48,
-3,
-16,
7,
-7,
18,
-4,
-8,
46,
16,
12,
28,
52,
32,
17,
4,
-14,
20,
5,
-31,
-55,
-10,
23,
24,
-13,
-6,
-18,
-9,
0,
-5,
-69,
-97,
-8,
-11,
-90,
-23,
36,
-21,
-23,
-46,
0,
5,
-25,
16,
56,
-5,
-9,
45,
2,
-43,
45,
-18,
42,
-2,
-35,
-22,
33,
8,
15,
19,
-12,
6,
-45,
-28,
32,
7,
0,
-38,
18,
-12,
38,
-22,
-9,
-10,
6,
8,
-21,
37,
-41,
12,
16,
-4,
-30,
-25,
-24,
12,
-4,
36,
-5,
-43,
2,
24,
18,
9,
42,
15,
50,
32,
-22,
-31,
-34,
30,
-30,
43,
27,
-46,
-17,
-15,
-4,
14,
26,
32,
-10,
0,
6,
4,
3,
6,
0,
-15,
27,
8,
-41,
-3,
30,
28,
-8,
12,
3,
7,
-12,
-14,
19,
-51,
-55,
-34,
22,
-32,
4,
-10,
24,
-41,
-26,
-52,
-29,
58,
5,
-4,
11,
13,
-9,
11,
-8,
-13,
20,
9,
-58,
-5,
42,
32,
15,
10,
-35,
-13,
-27,
-13,
18,
-26,
-3,
-32,
-41,
-25,
-18,
-19,
4,
-26,
-5,
69,
19,
-8,
27,
-30,
35,
82,
0,
-35,
-20,
-41,
21,
6,
45,
6,
-24,
55,
-21,
27,
56,
-65,
-18,
6,
-43,
-14,
29,
47,
-35,
11,
22,
-36,
-29,
-33,
-47,
12,
76,
-21,
8,
-1,
0,
-21,
-34,
-20,
-34,
-4,
11,
-11,
-21,
48,
41,
81,
23,
-57,
27,
14,
5,
-40,
38,
-5,
75,
-33,
-10,
42,
13,
28,
-16,
-10,
20,
-13,
38,
-27,
5,
22,
-9,
14,
70,
20,
-18,
-15,
-19,
-6,
10,
-27,
0,
-52,
39,
17,
14,
-25,
10,
-7,
-41,
6,
29,
4,
-21,
-35,
-9,
-45,
-48,
-25,
30,
7,
-54,
-3,
25,
-11,
35,
0,
-4,
7,
-16,
27,
-32,
39,
32,
-28,
36,
27,
-9,
0,
12,
-3,
4,
-40,
-15,
-34,
-20,
4,
-18,
28,
-28,
-10,
22,
38,
-66,
1,
28,
1,
-15,
17,
31,
-61,
37,
-53,
50,
31,
29,
31,
-44,
21,
-34,
-40,
-9,
-45,
15,
25,
1,
-26,
2,
-32,
-35,
3,
-28,
-14,
-47,
-47,
54,
30,
2,
-32,
72,
-12,
-65,
-69,
1,
-3,
22,
0,
90,
-4,
18,
11,
-8,
-9,
8,
-46,
-18,
9,
3,
-39,
-11,
4,
-33,
-16,
-7,
-21,
25,
-2,
61,
16,
-1,
-1,
31,
10,
42,
0,
53,
44,
-13,
52,
-45,
13,
-17,
46,
-3,
-12,
20,
20,
13,
-2,
-32,
-15,
74,
-13,
-24,
-40,
-26,
-2,
58,
-33,
-17,
-46,
3,
-22,
-21,
55,
3,
12,
13,
16,
10,
7,
9,
-26,
29,
-6,
24,
-12,
-13,
-10,
-15,
28,
17,
-53,
-49,
12,
-32,
-22,
-42,
25,
-20,
-56,
-20,
-13,
-41,
-8,
-45,
16,
19,
0,
-36,
32,
19,
7,
-32,
-8,
28,
78,
-12,
2,
21,
11,
-9,
-3,
-14,
-33,
-63,
43,
17,
-40,
25,
-35,
-4,
-2,
15,
-10,
3,
47,
-21,
-11,
-13,
53,
26,
-6,
11,
31,
31,
34,
8,
-1,
-57,
-2,
15,
28,
13,
24,
-23,
-44,
17,
-60,
50,
-37,
-41,
34,
61,
20,
-15,
11,
41,
34,
11,
-18,
1,
32,
1,
-42,
-24,
-7,
3,
2,
-5,
21,
-15,
-47,
-45,
-30,
-40,
57,
-25,
-1,
-2,
-17,
-31,
-39,
-13,
57,
-14,
-17,
35,
17,
-17,
23,
51,
-29,
39,
-23,
29,
-1,
6,
38,
6,
-1,
-18,
30,
17,
42,
-1,
9,
-38,
-6,
-40,
-7,
-10,
-11,
13,
6,
27,
37,
9,
-20,
-36,
52,
46,
-23,
-50,
-10,
11,
-1,
19,
-58,
-38,
-7,
16,
34,
21,
28,
-46,
-20,
-9,
-23,
-57,
31,
-13,
37,
2,
11,
-40,
29,
-10,
-19,
-21,
-10,
-10,
31,
0,
-11,
18,
1,
0,
83,
17,
28,
26,
-5,
-16,
34,
53,
-25,
39,
28,
-48,
-1,
36,
-3,
13,
32,
76,
37,
-35,
4,
-24,
-14,
1,
-25,
0,
29,
18,
31,
-34,
-10,
-7,
-46,
19,
-30,
-21,
20,
16,
-23,
25,
78,
-10,
2,
49,
2,
-20,
31,
-14,
-15,
6,
31,
28,
42,
33,
-28,
-6,
54,
20,
-19,
-32,
-39,
-20,
-44,
10,
45,
31,
0,
13,
1,
-2,
-14,
-3,
35,
-56,
-39,
17,
-63,
-42,
20,
26,
31,
-45,
48,
-2,
16,
-27,
37,
13,
-23,
35,
24,
13,
-10,
-2,
-51,
-49,
7,
32,
66,
-11,
4,
-21,
10,
-29,
13,
-11,
-43,
15,
-30,
-12,
-10,
30,
-25,
44,
26,
-8,
11,
-36,
-13,
20,
35,
-9,
53,
-64,
-7,
36,
-51,
-15,
35,
22,
25,
-23,
-67,
-4,
7,
2,
-6,
-26,
10,
11,
-69,
-12,
2,
21,
-37,
11,
-40,
9,
19,
-63,
33,
5,
8,
-23,
4,
-13,
3,
-41,
-68,
40,
-7,
18,
-8,
-12,
6,
-28,
44,
-10,
3,
17,
0,
57,
58,
16,
10,
-53,
6,
-4,
-3,
8,
-75,
37,
6,
-8,
-9,
-24,
-19,
-52,
-26,
19,
-12,
-7,
-24,
-33,
-12,
-15,
-1,
-51,
15,
20,
46,
-52,
43,
-5,
6,
18,
17,
25,
18,
22,
43,
22,
-36,
11,
37,
-23,
-16,
-4,
43,
19,
-19,
-41,
26,
-24,
-29,
-45,
17,
-32,
79,
-2,
7
] |
Per Curiam.
July 3, 1968, during the course of his jury trial on a charge of robbery armed, CLS 1961, § 750.529 (Stat Ann 1970 Cum Supp § 28.797), defendant offered to plead guilty to larceny from the person, CL 1948, § 750.357 (Stat Ann 1954 Rev § 28.589). After questioning defendant, the trial judge accepted the plea and subsequently, defendant was sentenced.
On appeal, it is defendant’s position that the trial judge failed to comply with GrCR 1963, 785.3(2), because he failed to ascertain that defendant was pleading guilty without promise of leniency. Defendant asserts on appeal without corroboration that his attorney advised him that defendant would receive a small sentence or probation and that is why he pleaded guilty. At the time defendant offered to plead to larceny from the person, two witnesses had already testified. That testimony established a robbery armed and that defendant committed it.
During interrogation by the judge, defendant indicated he was pleading guilty to taking a wallet and $45 from the complaining witness and that he was pleading guilty because he was guilty. Defendant indicated he was pleading freely, willingly and voluntarily and not because anyone had promised, induced or threatened him. Defendant also indicated he understood the nature of the offense and that the maximum penalty was ten years.
This record does not support defendant’s present contention that GrCR 1963, 785.3(2), was not complied with.
Affirmed. | [
48,
15,
17,
23,
-47,
-26,
0,
22,
-37,
31,
49,
-15,
1,
-25,
8,
-9,
-4,
-10,
49,
-15,
11,
-46,
24,
34,
-6,
-4,
40,
95,
13,
36,
36,
45,
-3,
0,
-6,
-9,
1,
-11,
10,
8,
0,
13,
10,
11,
-29,
-7,
-28,
-13,
21,
-23,
48,
15,
10,
25,
-20,
69,
-24,
10,
12,
-5,
31,
-19,
-45,
-35,
-50,
-19,
1,
51,
-38,
-3,
15,
-7,
32,
-14,
21,
18,
-14,
40,
-28,
37,
8,
-6,
21,
-7,
12,
-6,
26,
-53,
19,
-78,
-15,
91,
5,
16,
-5,
-24,
-11,
-2,
32,
-20,
-25,
-2,
14,
-26,
-4,
-1,
-50,
-36,
-17,
29,
-14,
0,
29,
-30,
-40,
-24,
-61,
-13,
-32,
-60,
-23,
-4,
50,
51,
6,
-27,
-21,
-66,
33,
-26,
-4,
56,
-6,
-14,
-12,
1,
-10,
15,
20,
14,
-32,
18,
53,
1,
23,
-27,
-31,
17,
5,
53,
-29,
15,
-61,
-3,
-6,
6,
-46,
-17,
-25,
-16,
7,
15,
-33,
-15,
-4,
-17,
0,
-9,
-12,
-30,
-6,
-8,
52,
-6,
35,
-51,
25,
-24,
-5,
19,
11,
35,
-38,
28,
25,
38,
3,
49,
-57,
-49,
-16,
9,
-12,
-27,
66,
-11,
-3,
16,
37,
18,
9,
-22,
9,
-3,
14,
-15,
2,
-8,
-3,
-2,
-41,
-18,
-3,
-21,
-11,
-12,
-32,
11,
10,
7,
-75,
4,
-29,
-9,
-7,
-8,
21,
11,
-55,
42,
-4,
-8,
-11,
13,
-7,
60,
49,
-40,
62,
34,
-35,
-14,
38,
-40,
27,
-31,
-5,
14,
-19,
-35,
-17,
40,
-8,
30,
-50,
-25,
9,
-20,
-33,
13,
-21,
45,
-21,
19,
-41,
-34,
-24,
-11,
-43,
-32,
-3,
-29,
-44,
15,
68,
-19,
-66,
35,
-39,
1,
26,
9,
15,
-16,
-17,
3,
-41,
66,
32,
11,
56,
-23,
-25,
25,
66,
42,
-14,
21,
-65,
1,
14,
-40,
7,
-23,
28,
-6,
23,
-15,
-47,
-7,
21,
17,
16,
24,
21,
-14,
-1,
-27,
12,
-21,
-18,
-17,
19,
-44,
-7,
-39,
20,
-3,
18,
-14,
-33,
-6,
-40,
-28,
-6,
36,
-18,
-7,
7,
40,
8,
-5,
-4,
-26,
22,
30,
-38,
46,
-39,
7,
11,
2,
11,
-1,
16,
-56,
-35,
4,
19,
-67,
49,
-13,
14,
-33,
42,
2,
26,
-14,
42,
79,
35,
-73,
-19,
-55,
-32,
-2,
60,
-20,
-2,
19,
-31,
-7,
31,
-14,
-24,
-16,
5,
-17,
-33,
26,
-57,
3,
-30,
-78,
30,
25,
-3,
0,
27,
3,
-13,
-29,
61,
-29,
-30,
-19,
-60,
-16,
-12,
-32,
-12,
39,
70,
74,
-29,
-75,
37,
20,
66,
-37,
6,
-1,
33,
17,
-23,
0,
-27,
-30,
-20,
-46,
36,
23,
15,
-64,
34,
34,
-4,
6,
56,
-8,
2,
-7,
-5,
49,
66,
-3,
-63,
-28,
41,
-2,
39,
28,
27,
-27,
4,
36,
25,
12,
11,
-34,
25,
4,
-65,
-7,
67,
-50,
-47,
-18,
50,
-30,
27,
11,
29,
65,
-22,
14,
-12,
25,
27,
15,
-6,
31,
5,
-13,
-1,
-49,
-29,
-62,
17,
-2,
9,
-1,
16,
0,
14,
19,
-32,
0,
-18,
83,
-57,
2,
23,
5,
37,
26,
11,
-1,
57,
43,
0,
39,
0,
-33,
37,
-64,
-4,
7,
-47,
30,
10,
-60,
-21,
-9,
-12,
11,
-32,
13,
-58,
24,
31,
-11,
-28,
-70,
54,
21,
-20,
-41,
8,
-29,
-15,
45,
-22,
35,
19,
7,
-17,
7,
43,
12,
28,
25,
46,
-13,
-21,
-15,
24,
-16,
-21,
-18,
14,
21,
54,
20,
-2,
24,
29,
-8,
-15,
20,
14,
40,
-42,
24,
-19,
7,
-20,
43,
23,
1,
35,
36,
-47,
-51,
0,
8,
7,
7,
-52,
-9,
-56,
48,
20,
-9,
0,
-46,
-63,
-31,
4,
32,
40,
30,
-67,
38,
68,
-47,
35,
1,
11,
-38,
58,
-15,
-46,
16,
-2,
-12,
-6,
-34,
-12,
23,
-2,
-1,
6,
-31,
-12,
-39,
-57,
-7,
-71,
-16,
17,
0,
51,
-10,
-49,
33,
-35,
14,
-56,
-25,
22,
64,
-1,
-13,
47,
9,
-35,
32,
6,
-23,
15,
5,
18,
-21,
47,
-34,
-13,
34,
6,
-12,
19,
7,
-67,
-22,
6,
61,
36,
0,
46,
26,
-6,
-52,
16,
24,
6,
29,
-26,
21,
-4,
-20,
16,
-52,
12,
-76,
-47,
-37,
9,
2,
22,
28,
-8,
23,
22,
19,
22,
10,
62,
75,
-40,
17,
41,
-10,
-1,
-29,
-4,
-20,
-1,
-12,
19,
-20,
-47,
15,
-19,
15,
15,
-51,
-76,
-5,
-40,
21,
-45,
5,
39,
36,
-27,
13,
23,
-44,
9,
7,
33,
43,
7,
15,
12,
15,
-35,
-6,
6,
-30,
-35,
15,
6,
-7,
-35,
16,
-1,
-37,
0,
-23,
48,
26,
21,
15,
14,
43,
20,
-18,
-42,
-13,
-12,
46,
14,
-22,
-39,
14,
1,
-21,
4,
1,
-4,
-37,
37,
0,
-59,
-26,
-20,
-24,
43,
14,
2,
22,
-12,
-36,
0,
-47,
-31,
-1,
-20,
-19,
-4,
30,
-34,
32,
26,
11,
-34,
66,
31,
-13,
-13,
-4,
13,
-14,
-8,
3,
12,
37,
-3,
10,
4,
0,
-38,
-18,
-9,
9,
11,
-56,
-6,
-27,
9,
31,
-26,
-27,
-8,
9,
33,
-23,
-27,
20,
18,
-57,
58,
30,
-41,
-10,
7,
-21,
-74,
-5,
41,
8,
4,
52,
43,
-30,
-13,
-74,
-14,
31,
64,
-26,
-13,
-44,
-2,
-2,
-2,
15,
-27,
-57,
-17,
0,
-21,
-11,
8,
62,
4,
8,
17,
-17,
-14,
34,
24,
2,
38,
33,
-13,
24,
5,
-16,
-38,
8,
35,
15,
9,
9,
-61,
-50,
-64,
26,
34,
39,
-2,
33,
3,
-40,
-2,
-48,
-4,
-9,
49,
48,
-36,
-5,
48,
56,
15,
30,
-29,
44,
19,
-5,
11,
-4,
27,
14,
0,
-7,
49,
-9,
-18,
14,
8,
45,
27,
-58,
17,
-44,
-9,
-26,
-8,
21,
43,
-33,
-14,
15,
19,
-28,
33,
-21,
-12,
-9,
-42,
2,
-72,
1,
-55,
24,
24,
1,
-13,
23,
-27,
-20,
-11,
-8,
-21,
37,
6,
13,
-41,
42,
5,
-25,
39,
48,
57,
-15,
-20,
-5,
45,
-61,
6,
-9,
23,
2,
47,
-34,
-46,
-16,
23,
-44,
-29,
-26,
24,
-15,
7,
42,
-28,
-27,
30,
-38,
15,
19,
17,
7,
-2,
-46,
-30,
10,
-53,
-23,
3,
-16,
-29,
-16,
37,
-9,
1,
-31,
6,
4,
43,
-2,
-11,
-10,
39,
-28,
-30,
0,
-35,
43,
-24,
25
] |
Per Curiam.
Defendant Larry Noble was convicted in recorder’s court for the city of Detroit of assault with intent to commit rape. The defendant waived trial by jury.
The prosecutrix, a 70-year-old woman, testified to having rented an apartment where the defendant lived and worked as a janitor. On June 3,1968, the day she moved in, defendant followed her inside her apartment, demanded sexual intercourse, prevented her escape by holding a knife to her throat, knocked her to the floor, and then left when she screamed. She remained in her apartment the remainder of the evening and through the next morning, when, still in a highly excited state, she related the incident to the caretaker. The caretaker called the police.
Defendant argues that testimony of the caretaker relating her conversation with the prosecutrix 12 hours after the incident was hearsay and that it does not qualify for admission under the res gestae exception. In People v. Dickinson (1966), 2 Mich App 646, 650, this Court incorporated language found in People v. Kayne (1934), 268 Mich 186:
“No inflexible rule has ever been and probably never can be adopted as to what is a part of the res gestae. It must be determined largely in each case by the peculiar facts and circumstances incident thereto * * * .”
The record in the present case clearly establishes that the prosecutrix was highly excited and upset when she made the declarations. Further, the possibility of another attack may have caused the delay in the prosecutrix’ detailing of the incident. Under such circumstances we cannot say that the statement was so remote in time as not to be a part of the res gestae of the crime. Once this determination is made both the fact and the details of the complaint are admissible in evidence. People v. Woodward (1970), 21 Mich App 549.
Since we find no error in the admission of certain statements under the res gestae exception, we need not review the ancient rule of the common law that the fact of complaint by a victim of rape can be shown in corroboration of the prosecutrix but the details can not. See People v. Baker (1930), 251 Mich 323, 324.
MOLA § 750.85 (Stat Ann 1962 Rev § 28.280). | [
-2,
-16,
7,
-22,
-21,
-6,
-16,
38,
-30,
-7,
42,
-22,
11,
-13,
44,
-11,
4,
-23,
-27,
-54,
51,
-28,
-31,
33,
-30,
-17,
27,
56,
-9,
0,
10,
5,
-21,
-3,
-6,
-68,
42,
-17,
-6,
54,
15,
-15,
1,
-30,
-21,
6,
25,
31,
23,
-41,
48,
36,
-29,
-6,
34,
-50,
13,
5,
55,
-4,
-47,
32,
-61,
-2,
-18,
28,
48,
23,
-49,
-6,
26,
-51,
-28,
-10,
-22,
1,
-11,
51,
52,
24,
27,
-5,
49,
-1,
8,
-49,
-8,
-23,
-19,
-31,
3,
-47,
-15,
0,
5,
-12,
22,
-26,
25,
-23,
-62,
28,
2,
19,
-18,
45,
-19,
-6,
62,
-16,
-3,
12,
42,
1,
-26,
-10,
-8,
-47,
1,
-46,
37,
-28,
19,
14,
-5,
20,
47,
-87,
14,
-1,
-20,
-11,
44,
-28,
45,
28,
15,
3,
39,
-17,
16,
30,
33,
8,
58,
-8,
-47,
52,
26,
49,
2,
28,
13,
3,
-10,
-45,
-42,
-55,
-26,
13,
27,
-14,
-47,
16,
-27,
-5,
-19,
4,
0,
-20,
6,
-23,
19,
-1,
5,
-10,
-66,
16,
-17,
-24,
-18,
32,
18,
-24,
30,
5,
13,
-37,
-6,
40,
18,
16,
17,
25,
42,
92,
12,
62,
14,
-6,
45,
-24,
-1,
31,
25,
-25,
-26,
3,
17,
12,
0,
20,
-76,
-15,
22,
-55,
13,
-3,
-1,
70,
-33,
-19,
-32,
9,
-21,
-43,
-14,
-22,
31,
25,
44,
13,
-33,
13,
-61,
10,
0,
56,
56,
2,
-36,
21,
-6,
-10,
6,
6,
-11,
-23,
-19,
15,
43,
1,
12,
19,
-78,
-81,
7,
12,
22,
24,
-2,
16,
-13,
69,
-24,
-1,
-1,
10,
-58,
-59,
-6,
59,
4,
-11,
-2,
-31,
-34,
21,
2,
-28,
-52,
3,
-27,
6,
-46,
-6,
-6,
12,
12,
5,
29,
-6,
-64,
-21,
35,
-16,
-25,
-23,
-30,
0,
30,
-10,
61,
5,
-24,
-42,
-27,
26,
19,
-32,
-23,
33,
35,
20,
13,
-23,
-7,
-17,
25,
-29,
4,
-57,
0,
51,
-62,
-33,
35,
-70,
25,
-5,
-31,
64,
0,
25,
0,
18,
-53,
-2,
-60,
-4,
-14,
-20,
-76,
-10,
-29,
45,
0,
11,
-34,
-43,
-32,
-13,
53,
3,
25,
4,
-48,
-36,
34,
-1,
16,
34,
-30,
18,
4,
11,
-35,
-38,
63,
74,
-16,
-60,
-30,
-2,
6,
-33,
62,
-34,
-17,
52,
33,
-25,
-16,
2,
-42,
25,
-42,
-47,
10,
-7,
-74,
-43,
25,
-29,
16,
6,
25,
-17,
0,
-8,
33,
3,
95,
28,
-28,
24,
0,
7,
-9,
61,
25,
43,
22,
-6,
5,
-34,
0,
13,
53,
-30,
-25,
-7,
52,
-17,
7,
-17,
-3,
-3,
13,
11,
-14,
-8,
10,
-22,
53,
-4,
-57,
-30,
-47,
6,
-28,
-6,
-28,
34,
59,
3,
-39,
-10,
0,
-15,
11,
44,
5,
-14,
26,
24,
8,
44,
-4,
11,
-38,
-27,
2,
1,
-21,
-20,
-31,
-23,
-39,
23,
-8,
-38,
-30,
60,
11,
-1,
-42,
73,
7,
18,
0,
8,
75,
-63,
-29,
37,
19,
-91,
-1,
13,
-13,
-8,
1,
33,
-39,
20,
-24,
26,
-59,
30,
-6,
25,
28,
4,
10,
-72,
-55,
31,
0,
39,
0,
-37,
-13,
46,
0,
-39,
30,
-28,
62,
11,
-25,
6,
81,
15,
-41,
16,
20,
10,
-31,
-15,
85,
18,
-6,
-70,
24,
-3,
-20,
-44,
10,
-19,
-37,
44,
12,
4,
4,
24,
8,
-8,
2,
64,
-12,
-47,
-1,
-38,
28,
-44,
52,
-7,
-5,
8,
5,
19,
38,
20,
-1,
11,
3,
-13,
28,
-28,
-27,
33,
-20,
-27,
-34,
5,
65,
17,
10,
-39,
51,
22,
74,
33,
-11,
-31,
13,
-17,
18,
-12,
-61,
35,
19,
-31,
10,
-60,
-15,
-16,
-44,
-16,
68,
0,
1,
-23,
2,
10,
16,
23,
28,
-53,
36,
7,
-50,
38,
-13,
22,
-15,
-5,
4,
80,
17,
-18,
-38,
-12,
-4,
-74,
2,
-25,
-40,
0,
-32,
15,
-5,
4,
15,
-4,
31,
-12,
-7,
-2,
7,
74,
4,
34,
20,
78,
33,
0,
3,
-36,
-12,
22,
-31,
-41,
28,
-22,
-29,
-16,
53,
-11,
-15,
-5,
-32,
34,
-26,
30,
34,
-13,
-1,
-45,
39,
38,
15,
52,
23,
0,
0,
-16,
3,
-5,
-2,
-12,
11,
-1,
7,
-13,
-7,
3,
-2,
-8,
-4,
44,
50,
34,
23,
21,
46,
26,
-9,
27,
-22,
-36,
11,
-25,
-17,
-23,
20,
-28,
-31,
-41,
9,
-3,
-51,
-14,
-17,
0,
-45,
-17,
34,
43,
-62,
30,
-5,
-6,
-19,
-18,
11,
19,
-10,
11,
25,
27,
-23,
11,
-27,
-13,
-39,
14,
-7,
-16,
-6,
8,
-11,
-38,
-9,
-61,
21,
-26,
25,
59,
15,
0,
25,
39,
-46,
49,
37,
-19,
-35,
-13,
8,
27,
-11,
-28,
-17,
-25,
-40,
10,
60,
-16,
-13,
-32,
29,
-20,
-14,
0,
3,
-13,
48,
-28,
17,
-11,
-61,
-14,
22,
-30,
8,
-60,
27,
55,
12,
-12,
-29,
-32,
-1,
27,
15,
-44,
-11,
17,
31,
4,
-12,
-18,
-22,
13,
-48,
38,
-16,
13,
26,
5,
-56,
-26,
-59,
-22,
20,
19,
58,
-36,
-10,
-8,
28,
20,
-11,
32,
-5,
-30,
-21,
24,
33,
-25,
-42,
16,
10,
-23,
-18,
-2,
-12,
20,
5,
-23,
46,
18,
59,
-21,
28,
-42,
19,
32,
61,
-21,
46,
21,
13,
30,
-17,
-10,
28,
-21,
-27,
-4,
-26,
-39,
-7,
0,
6,
25,
62,
-5,
54,
13,
-7,
0,
-24,
21,
-5,
0,
13,
-6,
-13,
-11,
11,
-24,
-4,
14,
23,
-43,
-26,
10,
48,
34,
20,
34,
-14,
-11,
-1,
-34,
3,
-56,
-45,
-19,
-9,
46,
-20,
3,
0,
-38,
-32,
-6,
-35,
-37,
52,
-9,
39,
0,
-24,
9,
32,
-3,
43,
13,
7,
6,
0,
17,
-34,
-14,
-39,
18,
26,
-16,
-49,
-47,
53,
17,
35,
15,
-25,
-22,
25,
7,
-44,
36,
-8,
28,
-3,
-37,
6,
-9,
-37,
-24,
37,
-26,
8,
21,
22,
-38,
-62,
22,
-2,
39,
8,
2,
6,
-21,
33,
-35,
36,
5,
30,
-46,
-15,
-33,
0,
3,
-11,
57,
-10,
4,
10,
-47,
-40,
1,
21,
0,
-13,
19,
-32,
-61,
-37,
29,
-19,
25,
28,
-6,
-10,
-71,
-17,
-20,
-39,
22,
-13,
58,
10,
-56,
24,
-23,
-2,
-1,
1,
17,
34,
35,
11,
-8,
-9,
9,
43,
-43,
-20,
6,
-25,
9
] |
Per Curiam.
Defendant Wendell Brown was tried by a jury and convicted of the crime of indecent liberties contrary to MCLA § 750.336 (Stat Ann 1954 Rev § 28.568). On appeal he contends that the trial court committed prejudicial error when it permitted the prosecuting attorney to examine defendant, over defense counsel’s objections, concerning his past criminal record for the purpose of testing defendant’s credibility, when defendant did not deny the criminal act in issue. Defendant also argues that the trial court committed reversible error when it ordered the trial to proceed when the jury was not drawn in accordance with MCLA §600.1301 (Stat Ann 1970 Cum Supp § 27A.1301). The appellee has filed a motion to affirm the conviction (GrCR 1963, 817.5 [3]).
By taking the witness stand, defendant put his credibility in issue. People v. Roney (1967), 7 Mich App 678; MCLA § 600.2159 (Stat Ann 1962 Rev § 27A.2159). The prior convictions of defendant were properly accepted and the record reveals that the trial court properly charged the jury regarding the matter. MCLA § 768.29 (Stat Ann 1954 Rev § 28.1052).
Nor do we think the second issue raised by defendant has merit. The questions presented here on appeal are unsubstantial and require no argument or formal submission.
The motion to affirm the defendant’s conviction is granted. | [
27,
-24,
8,
8,
20,
-6,
-34,
-37,
-48,
52,
19,
-31,
54,
3,
25,
-22,
26,
23,
63,
-31,
22,
-40,
-6,
83,
-13,
-28,
2,
41,
-18,
4,
33,
1,
18,
-3,
3,
-56,
-18,
54,
3,
9,
-3,
28,
0,
-30,
-83,
-6,
6,
20,
30,
12,
6,
-22,
-34,
14,
-27,
18,
4,
-9,
-32,
14,
23,
30,
-40,
-66,
10,
-47,
-4,
10,
-27,
60,
-7,
-10,
8,
-45,
4,
-26,
-31,
26,
-6,
40,
-11,
3,
39,
-12,
26,
-20,
57,
-21,
7,
-5,
37,
-22,
-36,
-39,
-40,
-1,
41,
-46,
68,
-6,
-17,
-4,
1,
10,
-36,
12,
-58,
1,
34,
-47,
56,
-12,
-41,
-46,
-43,
-31,
19,
11,
-10,
-52,
30,
43,
46,
38,
-4,
-5,
21,
16,
-36,
0,
-22,
34,
15,
-13,
-17,
20,
8,
6,
10,
22,
51,
13,
-4,
16,
46,
-12,
-9,
-7,
30,
16,
-29,
62,
-12,
-35,
16,
16,
-4,
-19,
9,
9,
-10,
51,
-77,
-29,
51,
-13,
-38,
-34,
33,
-32,
14,
16,
95,
4,
3,
-21,
-3,
-29,
-11,
-25,
-61,
35,
-3,
-15,
-17,
0,
-34,
0,
-50,
-40,
-40,
19,
24,
-21,
73,
25,
-11,
39,
-1,
-3,
-5,
-39,
-19,
-8,
6,
-12,
-3,
-34,
7,
22,
-58,
7,
0,
-44,
7,
-49,
21,
-34,
0,
51,
-57,
-39,
25,
-25,
-27,
-18,
20,
44,
-6,
1,
0,
-16,
-4,
-22,
-10,
7,
-3,
-3,
40,
23,
-20,
28,
61,
-34,
-45,
-9,
41,
9,
2,
-15,
41,
-1,
32,
13,
-32,
24,
19,
-3,
-79,
-17,
-7,
60,
-13,
-14,
-39,
31,
24,
46,
-10,
-21,
-24,
16,
19,
39,
-11,
-7,
-38,
-1,
-4,
-10,
-3,
2,
29,
11,
-35,
0,
-32,
14,
30,
8,
53,
-23,
-51,
17,
46,
1,
5,
4,
-20,
-24,
24,
6,
12,
-31,
1,
-1,
39,
0,
-26,
13,
2,
52,
23,
4,
7,
7,
2,
4,
35,
-79,
-64,
-18,
-4,
-72,
-20,
-19,
32,
-75,
-23,
-29,
-44,
-6,
2,
27,
45,
0,
12,
20,
-14,
36,
17,
-14,
-25,
-17,
6,
4,
-6,
28,
-33,
6,
6,
-20,
22,
-11,
-24,
-29,
-30,
-18,
7,
-12,
-5,
44,
23,
6,
48,
29,
-10,
-12,
0,
29,
-51,
-40,
-18,
7,
-16,
-6,
30,
-16,
8,
15,
-38,
-28,
23,
-66,
-3,
4,
-37,
-20,
-20,
0,
-22,
-26,
-20,
-14,
-22,
38,
11,
-3,
23,
0,
-19,
-7,
28,
-17,
-7,
-23,
-13,
2,
7,
25,
-3,
70,
16,
40,
-2,
-28,
10,
-17,
41,
-6,
20,
-26,
53,
-18,
44,
13,
-7,
51,
8,
-32,
-20,
-2,
-13,
-69,
2,
31,
-10,
2,
46,
24,
-17,
14,
-68,
4,
-41,
-15,
33,
-3,
3,
11,
6,
21,
10,
-58,
20,
16,
24,
-23,
-8,
-5,
10,
-27,
-11,
-18,
15,
-56,
-48,
-14,
15,
11,
44,
29,
34,
64,
-35,
24,
0,
1,
2,
-2,
81,
-2,
-14,
-40,
-14,
-13,
17,
-6,
9,
-24,
-40,
33,
-40,
0,
-20,
15,
-4,
-18,
-27,
23,
-32,
34,
-23,
-10,
8,
-19,
7,
-22,
60,
24,
-11,
36,
2,
48,
-7,
-79,
21,
-34,
-3,
10,
-7,
-36,
-9,
11,
-5,
13,
-48,
1,
9,
-2,
76,
-7,
-16,
-42,
0,
39,
-71,
-41,
30,
8,
-9,
43,
20,
-18,
8,
-6,
-23,
21,
-4,
10,
9,
11,
12,
-6,
-19,
-16,
-54,
-23,
33,
-27,
-17,
-1,
72,
34,
20,
-30,
-14,
-33,
60,
-27,
43,
2,
-35,
4,
-20,
15,
56,
62,
5,
-3,
15,
39,
15,
-26,
-50,
-10,
6,
6,
24,
-33,
-33,
-11,
46,
-52,
-31,
-25,
-63,
-28,
23,
52,
15,
3,
-53,
13,
28,
4,
21,
5,
-15,
-36,
76,
-2,
-30,
18,
25,
0,
-42,
23,
-34,
39,
-29,
-2,
-19,
-31,
7,
-49,
-88,
-14,
-51,
-27,
9,
-44,
-47,
-39,
-42,
10,
-44,
19,
-12,
-23,
14,
9,
40,
-42,
20,
-38,
57,
-11,
36,
-50,
-1,
36,
-10,
-57,
20,
-4,
-31,
35,
37,
11,
23,
15,
-52,
-12,
16,
46,
7,
-17,
8,
-3,
-31,
-1,
17,
12,
7,
25,
20,
-3,
-12,
-25,
-38,
-37,
-20,
-14,
-15,
-43,
-37,
27,
-1,
-13,
-5,
23,
26,
-20,
-7,
2,
17,
20,
-21,
-4,
-3,
9,
-26,
21,
-26,
-16,
17,
0,
30,
-8,
-38,
66,
-38,
20,
22,
-1,
-38,
-27,
-3,
13,
5,
-10,
3,
3,
-3,
-8,
29,
16,
51,
-30,
10,
-7,
36,
4,
40,
61,
11,
18,
4,
-21,
-32,
4,
-4,
-6,
-46,
-3,
14,
-7,
10,
-3,
35,
8,
9,
22,
-20,
54,
29,
-49,
-38,
-5,
5,
21,
-53,
-25,
-13,
26,
-6,
-16,
15,
29,
-23,
-18,
62,
21,
-45,
66,
37,
9,
59,
24,
15,
25,
-31,
-13,
-27,
-12,
-9,
-48,
-77,
-11,
33,
5,
-33,
48,
21,
4,
24,
-7,
55,
30,
35,
7,
3,
-34,
-22,
9,
7,
-21,
16,
17,
53,
-10,
-20,
22,
13,
-22,
10,
-14,
-12,
-47,
16,
52,
18,
-4,
4,
2,
52,
-66,
20,
-19,
-12,
-24,
1,
60,
-9,
-5,
11,
27,
-33,
15,
-40,
4,
8,
28,
28,
49,
7,
-26,
-4,
-26,
47,
42,
-7,
13,
0,
29,
-19,
-6,
14,
18,
-3,
61,
-32,
-11,
43,
-31,
27,
-52,
56,
-40,
-18,
12,
31,
21,
-6,
12,
-4,
30,
17,
85,
26,
-25,
-14,
0,
22,
-32,
-16,
-31,
-42,
3,
45,
4,
1,
49,
-17,
-21,
-17,
-3,
35,
-14,
0,
27,
3,
4,
32,
-12,
17,
-19,
-14,
29,
12,
1,
22,
-5,
60,
9,
-41,
-3,
39,
-30,
-42,
29,
-12,
3,
-25,
-43,
-10,
-31,
-48,
3,
-11,
0,
-24,
-60,
-33,
1,
45,
-38,
-8,
-3,
-28,
0,
-53,
36,
-77,
5,
-107,
86,
-26,
-2,
-54,
-36,
5,
5,
5,
3,
-9,
0,
-25,
-14,
-13,
49,
-34,
-27,
22,
38,
34,
-19,
-19,
31,
16,
-20,
-6,
-36,
-25,
-11,
9,
-37,
-24,
2,
-2,
-59,
-1,
1,
26,
-46,
-30,
24,
14,
29,
55,
-19,
0,
-3,
-23,
49,
-18,
-37,
0,
2,
-15,
35,
8,
-10,
9,
1,
1,
-7,
-8,
25,
15,
-25,
43,
20,
-16,
-1,
46,
-9,
-4,
13,
14,
69,
18,
10
] |
J. H. Gillis, J.
Plaintiff commenced this action in the Common Pleas Court for the City of Detroit, claiming damages from defendants, jointly and severally, for injuries sustained in an automobile accident which occurred in Detroit. One of the four named defendants, Henderson’s Eastgate Chrysler Plymouth, Inc. [hereafter appellant], is a Michigan corporation with its principal place of business in the city of Roseville, Macomb County, Michigan. Process was served on appellant by a Macomb county deputy sheriff. That process consisted of serving appellant’s secretary with a copy of the original summons issued by Detroit common pleas court.
Appellant appeared and moved to quash service of process on the grounds that plaintiff had failed to obtain an alias summons; that such summons was required in order to secure service on appellant, since appellant was a nonresident defendant; and that the court had failed to indorse on the required alias summons the names of those defendants served in Wayne county.
Appellant’s motion to quash was denied by order of Common Pleas Court; Wayne County Circuit Court affirmed. We granted leave to appeal. The sole question presented is whether common Pleas Court erred in denying appellant’s motion to quash.
In the conduct of its judicial business, Common Pleas Court is governed by the common pleas court act, MCLA § 728.1, et seq. (Stat Ann 1962 Rev § 27.3651 et seq.), and by charter and statutory provisions not inconsistent therewith. See 14 Callaghan’s Michigan Pleading & Practice (2d ed), § 124.02, p 562. And in such courts, practice and procedure is governed by the provisions of existing laws relating to actions and proceedings before justices of the peace, except as otherwise provided in the common pleas court act. See MCLA § 728.3 (Stat Ann 1962 Rev § 27.3653); MCLA § 728.19 (Stat Ann 1962 Rev § 27.3670); 14 Callaghan’s Michigan Pleading & Practice (2d ed), § 124.10, p 568.
Among those existing laws governing judicial practice in justice courts is the following statutory provision:
“When an action shall have been or shall be brought before any justice of the peace of this state against 2 or more joint defendants, 1 or more of whom shall not reside or be found in the county where the suit shall be brought, and 1 or more of the defendants shall be served with process in the county where suit is commenced, and due proof of such service shall be filed with the justice of the peace before whom such suit is pending upon application of the plaintiff in such action, on the return day of the writ by which such action was commenced, the justice shall issue 1 or more alias writs of summons or other writ whereby such suit was commenced, returnable not less than 3 nor more than 21 days from the date of issue, directed to the sheriff or any constable of the county or counties where such defendant or defendants not so served may be found; and the justice shall indorse on such alias writ or writs what defendant or defendants have been served in the cou/nty where such suit is commenced, as shown by the proof of service filed with such justice * * * MCLA § 600.6727 (Stat Ann 1962 Rev § 27A.6727). (Emphasis supplied.)
This provision governing service of process in justice courts requires that an alias summons issue in order to secure service on a nonresident joint defendant. It also requires indorsement on the alias sum mons of the names of those defendants who have been served in the county where suit is filed. Furthermore, when the joint defendant not served is a nonresident of the county in which the action is filed, the statutory provisions with respect to an alias summons must be strictly followed. Reed v. Parker (1903), 134 Mich 68; and see Brown v. Knop (1904), 137 Mich 234, 238, 239.
It is undisputed that appellant is a nonresident of Wayne county. It also appears from the record that plaintiff failed to secure an alias summons. Since no such summons was obtained, no indorsement was made of those defendants served in the county where suit was filed.
We conclude that denial of appellant’s motion to quash was error. The service of process attempted here disregarded the mandatory requirements of the statute quoted supra. Moreover, we find nothing inconsistent in the common pleas court act obviating compliance therewith. On the contrary, plaintiff’s failure to obtain an alias summons violated an express provision of that act:
“When it shall appear that service of such writ of summons was not had upon all defendants, the clerk shall, upon application to him not more than 15 days after the return of such summmons, issue an alias summons, which in proceedings in assumpsit and trespass on the case shall be made returnable within 90 days.” MCLA § 728.13 (Stat Ann 1962 Rev § 27.3663). (Emphasis supplied.)
And see 14 Callaghan’s Michigan Pleading & Practice (2d ed) § 124.11, p 569.
Nor does MCLA § 257.404 (Stat Ann 1968 Rev § 9.2104), upon which plaintiff relies, eliminate the requirement that an alias summons issue in this case. It merely indicates that process may be served anywhere within the state; it does not, however, describe the manner of procuring service on a nonresident defendant. On this question, the statute is silent. We therefore hold that the specific provisions of MCLA § 728.13 (Stat Ann 1962 Rev § 27.3663) and MCLA § 600.6727 (Stat Ann 1962 Rev § 27A.6727) govern the manner of service in this case, and that such provisions were not followed.
Since service of process upon defendant-appellant was defective, it follows that common pleas court lacked jurisdiction over the person of this defendant. Absent issuance of an alias summons properly indorsed, common pleas was without authority to entertain plaintiff’s action against defendant-appellant. Reed v. Parker, supra; Ray Jewelry Co. v. Darling (1930), 251 Mich 157; Millman Brothers, Inc. v. City of Detroit (1966), 2 Mich App 161. The motion to quash should have been granted.
Reversed. Costs to appellant.
All concurred.
"In any tort action for the recovery of damages to person or property resulting from the operation of 1 or more motor vehicles, where the action is brought in the county where the cause of action arose, process from any court of record may be served anywhere within the state where the party upon whom service is to be made may be found.” | [
-39,
74,
13,
-18,
-23,
-13,
-7,
-49,
-8,
66,
-12,
4,
1,
-1,
-26,
-8,
20,
-23,
31,
-42,
-15,
-44,
-16,
-26,
-3,
-45,
33,
-72,
-28,
-57,
-63,
-4,
15,
-3,
-9,
-23,
17,
-21,
10,
21,
18,
1,
13,
16,
-24,
-1,
48,
41,
31,
-14,
-4,
-3,
-85,
-18,
-20,
-26,
26,
5,
19,
-34,
14,
12,
35,
16,
-15,
17,
4,
13,
56,
-48,
-35,
51,
19,
0,
15,
-6,
-21,
-37,
40,
24,
11,
15,
44,
7,
-16,
-7,
-44,
19,
-28,
-48,
-24,
42,
-68,
-15,
62,
32,
-10,
-19,
46,
31,
-33,
49,
3,
-16,
-33,
5,
-13,
-4,
0,
22,
46,
-20,
25,
-38,
-47,
-27,
7,
9,
22,
6,
7,
-52,
15,
6,
19,
43,
4,
7,
-9,
59,
51,
-48,
18,
12,
2,
33,
19,
-1,
-45,
46,
12,
-5,
21,
27,
6,
23,
26,
14,
15,
-25,
-4,
51,
4,
39,
18,
16,
11,
-2,
-3,
2,
9,
19,
10,
12,
13,
-5,
-25,
38,
1,
-11,
19,
-32,
24,
-48,
8,
-14,
-54,
20,
-28,
-9,
-8,
5,
5,
-20,
2,
-38,
17,
-12,
-29,
0,
30,
16,
-40,
7,
-7,
54,
29,
3,
-20,
41,
2,
-68,
18,
-22,
-3,
-3,
26,
-54,
3,
9,
-6,
-40,
-23,
10,
5,
-17,
49,
-42,
15,
11,
19,
26,
18,
5,
-66,
-23,
-17,
-27,
14,
-8,
25,
-13,
-17,
-4,
-39,
-68,
-7,
6,
21,
40,
9,
-10,
15,
-21,
38,
20,
-22,
-9,
-55,
4,
0,
11,
-5,
-22,
-14,
-75,
11,
-4,
-41,
45,
3,
33,
-42,
-12,
-55,
-1,
32,
24,
-21,
6,
-49,
-16,
12,
31,
-21,
-41,
-8,
54,
58,
18,
-21,
-37,
-40,
-21,
-1,
36,
-6,
2,
-49,
-4,
-57,
11,
1,
22,
-12,
23,
43,
-12,
-23,
13,
-12,
20,
-10,
-30,
0,
-84,
-51,
-45,
-3,
30,
26,
-40,
0,
-18,
46,
5,
10,
1,
45,
-64,
11,
50,
-5,
2,
-57,
62,
33,
-37,
-19,
-34,
27,
26,
34,
-22,
8,
-18,
48,
31,
-19,
6,
24,
-26,
16,
0,
13,
14,
47,
-56,
-16,
-15,
-23,
-22,
23,
-5,
20,
-1,
14,
-46,
-15,
8,
36,
-4,
-19,
5,
27,
0,
-13,
-26,
-15,
75,
-55,
0,
-43,
42,
-47,
-46,
8,
-12,
-28,
63,
-8,
-58,
9,
-30,
46,
14,
-29,
-6,
-3,
25,
-37,
-37,
23,
-6,
-37,
-18,
-13,
0,
-28,
27,
11,
39,
0,
27,
-12,
-41,
0,
4,
4,
0,
5,
-4,
20,
33,
22,
16,
34,
7,
-22,
-10,
12,
-47,
-25,
-83,
49,
17,
31,
14,
58,
17,
35,
51,
45,
1,
59,
10,
-30,
-37,
-16,
2,
-27,
-47,
-5,
-10,
10,
2,
-13,
30,
5,
-11,
64,
39,
33,
4,
-8,
16,
44,
10,
16,
-4,
-20,
-53,
-40,
-7,
-19,
-27,
-10,
-14,
16,
34,
-14,
3,
-44,
33,
6,
-5,
12,
29,
1,
-37,
-36,
17,
-25,
1,
-20,
40,
6,
-20,
2,
-20,
1,
0,
-36,
76,
15,
48,
-65,
2,
-11,
-18,
21,
11,
-15,
19,
39,
21,
7,
-17,
0,
17,
-46,
5,
12,
0,
-35,
-9,
-7,
34,
18,
0,
12,
1,
3,
-15,
1,
28,
16,
-35,
35,
-1,
30,
-20,
10,
13,
-37,
-42,
28,
28,
-6,
-22,
47,
25,
-1,
-35,
33,
17,
-56,
-25,
23,
8,
-20,
-5,
-6,
-35,
-7,
0,
-12,
9,
16,
-25,
13,
-20,
61,
19,
-18,
-6,
5,
-4,
60,
-33,
-34,
42,
48,
-43,
-6,
1,
-19,
-18,
-51,
-4,
-22,
23,
15,
-15,
-24,
-63,
34,
-11,
54,
1,
-22,
9,
-17,
-33,
33,
23,
37,
-24,
21,
-4,
22,
-32,
-31,
33,
1,
-13,
-30,
15,
-4,
-62,
-30,
43,
-1,
-20,
-43,
-29,
-1,
-34,
-18,
7,
3,
-54,
20,
-15,
32,
-35,
55,
8,
-24,
-32,
-32,
19,
-70,
-3,
-9,
52,
-20,
56,
4,
-26,
-11,
36,
27,
23,
12,
-73,
-17,
-10,
-7,
-25,
2,
38,
-23,
-18,
50,
5,
0,
-23,
0,
-19,
5,
-22,
-29,
2,
-10,
-6,
23,
-3,
78,
-25,
-35,
-22,
32,
16,
12,
-48,
-41,
13,
7,
28,
-11,
35,
2,
-25,
27,
-43,
12,
0,
4,
10,
-23,
-27,
-41,
-41,
-29,
8,
-12,
5,
-27,
-14,
-9,
2,
-3,
24,
6,
41,
-18,
5,
43,
-3,
-56,
4,
6,
15,
20,
67,
-4,
7,
-1,
-12,
2,
-2,
-11,
4,
-17,
-2,
-23,
-20,
4,
-23,
23,
-28,
48,
5,
1,
-28,
29,
-58,
-76,
44,
25,
-25,
-47,
-39,
-1,
-27,
7,
45,
4,
15,
-12,
27,
24,
59,
21,
-10,
9,
-29,
-23,
16,
8,
7,
37,
-24,
-33,
40,
29,
12,
42,
27,
-34,
30,
6,
-52,
-6,
19,
-21,
-43,
35,
-47,
0,
-10,
27,
6,
-23,
-11,
23,
29,
-55,
-27,
39,
4,
9,
7,
-9,
-33,
28,
3,
7,
-1,
-12,
29,
44,
0,
7,
-23,
-8,
1,
20,
-18,
-3,
30,
-19,
-44,
11,
-10,
-19,
49,
-58,
-21,
31,
5,
-22,
-4,
1,
-12,
-25,
-16,
-24,
50,
14,
6,
25,
20,
-27,
21,
101,
27,
10,
-23,
39,
-28,
-27,
-5,
-17,
63,
-16,
0,
50,
-9,
-2,
17,
-28,
-14,
-2,
0,
-8,
-20,
-20,
-26,
16,
-5,
-55,
-11,
-16,
0,
-22,
-52,
-7,
0,
20,
-8,
-29,
38,
-25,
-41,
1,
16,
-2,
33,
4,
-33,
25,
-6,
-30,
-24,
26,
-41,
-37,
-14,
-3,
-7,
1,
-5,
7,
4,
-7,
3,
19,
-13,
-3,
42,
6,
-9,
40,
-25,
8,
-26,
-36,
-3,
1,
14,
16,
40,
1,
1,
3,
40,
6,
11,
19,
0,
20,
19,
4,
10,
15,
25,
-39,
56,
-7,
-60,
-41,
-12,
-4,
-44,
36,
-47,
6,
31,
-6,
6,
-11,
-42,
-16,
-50,
-3,
13,
-47,
39,
-42,
-65,
33,
-8,
6,
7,
-47,
8,
-2,
36,
46,
23,
-15,
26,
5,
-4,
-36,
-23,
-4,
61,
-2,
14,
-20,
-11,
20,
-1,
0,
10,
45,
40,
-19,
1,
33,
31,
-21,
8,
8,
-5,
-15,
15,
5,
9,
-31,
-15,
-45,
-22,
-3,
2,
1,
2,
41,
30,
1,
-6,
24,
-22,
24,
50,
-23,
61,
0,
27,
-6,
10,
-16,
62,
-43,
19,
-32,
22,
-14,
-4,
8,
4
] |
Per Curiam.
Defendant was charged with rape. MCLA § 750.520 (Stat Ann 1954 Rev § 28.788). The case was heard by a jury which rendered a verdict convicting defendant as charged. On appeal, defendant asserts that the complaining witness’s identification of defendant as her assailant was grossly inaccurate. The record, however, discloses sufficient foundation for an identification by the complainant of her attacker. The witness saw her assailant’s face at the time of the offense; she positively identified defendant at trial. Whether she was mistaken was clearly a question of credibility, and hence within the province of the jury. People v. Caldwell (1969), 20 Mich App 224.
The alleged disparities in the testimony of the people’s witnesses also presented issues of credibility for resolution by the trier of fact. A review of the entire record leads us to conclude that sufficient evidence existed to justify the verdict of the jury.
Affirmed. | [
22,
-11,
15,
-20,
27,
-31,
6,
-31,
-29,
16,
37,
-48,
24,
-2,
18,
9,
13,
-14,
57,
-108,
0,
9,
-37,
40,
-56,
-18,
60,
-5,
-4,
-32,
-4,
25,
15,
-19,
35,
-42,
40,
3,
-44,
16,
32,
2,
-27,
-11,
-33,
16,
-14,
17,
-1,
0,
16,
-54,
-46,
3,
-36,
-23,
-10,
-15,
19,
-12,
14,
3,
0,
-54,
-5,
-73,
36,
-26,
-24,
-5,
-2,
-17,
-51,
-83,
-18,
-31,
-34,
0,
2,
0,
2,
-24,
42,
51,
38,
-19,
0,
-26,
-1,
-5,
6,
-20,
-27,
-39,
14,
3,
30,
-20,
61,
4,
-28,
25,
-18,
54,
-14,
38,
-49,
-37,
-14,
-68,
20,
-52,
16,
-14,
-16,
-7,
0,
19,
3,
-34,
29,
26,
10,
0,
0,
-2,
-5,
-22,
-8,
-4,
-12,
-16,
25,
15,
-12,
12,
15,
-10,
38,
1,
53,
5,
9,
53,
-19,
28,
-1,
-5,
12,
11,
7,
36,
-15,
-2,
-15,
-18,
1,
-44,
-8,
-26,
24,
38,
-33,
13,
19,
2,
24,
-14,
45,
-46,
-33,
-14,
60,
48,
34,
25,
-27,
-32,
12,
4,
-37,
11,
-1,
18,
-7,
22,
-14,
-55,
-3,
-13,
-29,
77,
-22,
-7,
57,
59,
-1,
28,
22,
-46,
56,
4,
-6,
-33,
2,
-11,
-25,
-55,
2,
39,
1,
36,
14,
-16,
35,
-28,
38,
6,
-30,
19,
-47,
-24,
8,
-11,
-11,
-54,
-4,
23,
-6,
-8,
48,
3,
0,
-20,
-14,
8,
58,
-24,
30,
-22,
-28,
-19,
40,
-1,
-33,
-23,
34,
12,
-13,
-2,
22,
29,
-2,
49,
-46,
-42,
27,
35,
-21,
3,
-71,
35,
-2,
9,
-52,
15,
31,
51,
-29,
-58,
5,
-2,
20,
22,
19,
-37,
-46,
-15,
-24,
23,
-2,
46,
-9,
21,
-3,
-11,
-34,
53,
26,
0,
66,
0,
-45,
-63,
42,
24,
27,
1,
1,
-9,
1,
1,
0,
-31,
-79,
0,
7,
-6,
-63,
-1,
24,
73,
14,
1,
6,
37,
-4,
3,
21,
-16,
-47,
-7,
24,
-46,
-25,
3,
31,
-77,
-42,
-54,
-45,
25,
10,
33,
102,
-18,
-27,
27,
38,
15,
28,
0,
9,
9,
-6,
67,
-19,
20,
6,
-34,
35,
-4,
34,
-2,
-5,
-39,
-36,
-36,
0,
-50,
7,
14,
0,
39,
56,
41,
-25,
-16,
21,
36,
-15,
-71,
-9,
30,
-58,
-48,
74,
-14,
29,
63,
-5,
35,
22,
-23,
-36,
10,
-33,
-43,
-5,
-7,
-31,
-35,
-40,
-24,
-15,
6,
-62,
23,
38,
-29,
0,
16,
42,
-8,
-32,
34,
-14,
-40,
5,
8,
-4,
35,
21,
19,
-20,
-13,
33,
8,
22,
8,
17,
0,
19,
10,
12,
3,
10,
14,
44,
-24,
-50,
-2,
-23,
-16,
30,
8,
-15,
-13,
31,
-25,
24,
-10,
-44,
31,
-1,
7,
-3,
-1,
9,
-1,
15,
28,
13,
-36,
14,
89,
38,
-26,
-3,
-7,
6,
-11,
-50,
-14,
-2,
6,
-39,
-52,
-6,
-11,
53,
-5,
0,
9,
15,
30,
-16,
22,
-9,
6,
55,
-38,
18,
-63,
10,
-9,
42,
-16,
26,
-44,
-19,
-8,
-21,
67,
-6,
20,
-15,
7,
-43,
-15,
-20,
28,
-26,
-40,
8,
-12,
41,
7,
-31,
10,
-39,
8,
-40,
21,
-57,
-49,
6,
-8,
1,
33,
6,
-25,
27,
0,
-14,
16,
-9,
-20,
0,
-20,
50,
33,
-40,
11,
49,
54,
-36,
-49,
14,
-16,
-58,
25,
53,
-38,
57,
3,
-1,
-2,
-11,
29,
9,
29,
26,
-13,
-11,
-49,
26,
-24,
-4,
-47,
-25,
17,
46,
33,
36,
9,
25,
-41,
38,
-55,
6,
0,
-63,
9,
-17,
43,
10,
32,
15,
18,
0,
7,
-18,
2,
-25,
-16,
63,
-28,
-13,
16,
-23,
2,
32,
-32,
-38,
-43,
-57,
-8,
1,
43,
73,
-11,
-25,
9,
39,
22,
-21,
24,
-5,
-58,
46,
-15,
26,
9,
46,
1,
-10,
-25,
-29,
10,
-13,
24,
39,
0,
-7,
-33,
-47,
-44,
-19,
-23,
-46,
-59,
-46,
2,
-7,
23,
-4,
23,
-22,
23,
12,
20,
45,
28,
17,
-5,
-27,
16,
-30,
-74,
46,
23,
9,
-18,
10,
-43,
-15,
-46,
4,
29,
10,
39,
-32,
-10,
13,
38,
36,
-47,
13,
-49,
-26,
-10,
11,
-6,
-12,
-7,
28,
-23,
-8,
-21,
-5,
-7,
-10,
-19,
18,
23,
-44,
34,
13,
0,
10,
11,
-15,
-9,
83,
-40,
11,
-33,
-35,
-1,
-4,
-31,
-26,
-23,
27,
-14,
26,
-3,
-9,
37,
-3,
29,
-55,
-26,
28,
-6,
-20,
-4,
2,
38,
-39,
1,
53,
-9,
-33,
-35,
35,
47,
56,
-8,
41,
26,
-2,
26,
25,
2,
-3,
9,
-4,
7,
-3,
-2,
-10,
-36,
-33,
-36,
20,
-67,
20,
52,
-19,
23,
24,
-6,
-36,
36,
7,
21,
-12,
-35,
42,
0,
-10,
-73,
-14,
-25,
9,
-3,
9,
9,
-38,
-40,
44,
5,
-58,
28,
32,
3,
47,
21,
20,
2,
-62,
4,
-18,
-53,
35,
-39,
-16,
21,
35,
28,
-20,
53,
10,
16,
0,
-34,
-19,
36,
-4,
61,
47,
-24,
-18,
32,
-19,
-37,
-31,
39,
72,
-8,
-3,
-37,
-21,
20,
-23,
-14,
-33,
-22,
6,
15,
15,
21,
0,
15,
2,
-87,
4,
-1,
9,
8,
7,
50,
-7,
21,
-9,
39,
-12,
11,
0,
27,
-9,
-27,
37,
38,
-17,
-56,
-16,
21,
18,
62,
9,
35,
17,
-5,
10,
9,
1,
13,
-35,
21,
-25,
-38,
-1,
53,
23,
-56,
48,
-39,
29,
33,
-32,
18,
-38,
-1,
-7,
-2,
10,
65,
51,
-43,
-35,
-17,
28,
-35,
47,
-5,
4,
-1,
71,
37,
32,
1,
-18,
4,
6,
-16,
0,
-18,
-20,
23,
-28,
57,
21,
-3,
5,
-47,
-45,
29,
24,
-36,
47,
23,
45,
52,
-8,
-32,
37,
-43,
2,
24,
24,
-28,
13,
1,
-8,
-2,
-27,
-25,
-32,
23,
-48,
-11,
23,
50,
-26,
-43,
8,
64,
7,
0,
-49,
15,
-1,
46,
-121,
56,
-12,
13,
-10,
18,
3,
26,
20,
9,
-4,
-8,
-44,
-3,
41,
75,
21,
-13,
29,
17,
-30,
-15,
24,
49,
23,
-4,
-10,
-83,
-14,
-33,
-19,
2,
-65,
-11,
-92,
-74,
-16,
-7,
6,
-16,
-25,
35,
2,
16,
-6,
-24,
-57,
-16,
-36,
24,
0,
-34,
-18,
-21,
-39,
67,
20,
5,
45,
-44,
8,
-16,
-1,
-29,
7,
-16,
39,
7,
4,
-5,
-10,
-10,
19,
40,
-17,
34,
36,
-10
] |
Per Curiam.
In the early morning hours of June 12, 1968, Ernest Anderson was relieved of his watch and wallet by two men.
At approximately the same time, a patrol sergeant with the Highland Park Police Department was driving an unmarked patrol car south on Woodward Avenue. The officer observed the defendant and a companion attempting to cross Woodward Avenue on foot against the light. As the officer drew up to the cross walk, he heard the complainant, Ernest Anderson, repeatedly cry for help. The policeman noted that the defendant and his companion had been walking briskly from the general vicinity of the calls for help. The policeman stopped the patrol car, got out, and ordered the pair to stop. The complainant was approximately 15 feet from the place where the two men were ordered to halt.
After the policeman asked the men to stop, he saw the defendant’s companion throw a watch and a wallet to the ground. The defendant started to walk around to the back of the patrol car but was ordered by the policeman to come back. The officer then radioed for assistance and was joined by two fellow officers within a minute. One of these assisting officers conducted a search of the defendant and discovered a pistol tucked down in the back of his pants.
The defendant went to trial October 14, 1968, and was convicted by the court, sitting without a jury, of robbery unarmed and of carrying a concealed weapon. Following a motion for a new trial, the conviction on the first count was set aside but a motion to set aside the conviction on the second count was denied.
On appeal, the defendant argues that: the policeman lacked probable cause to make the arrest; the search was too extensive; and the prosecution failed to prove beyond a reasonable doubt the requisite elements of intent and lack of license to carry a concealed weapon as required by CL 1948, § 750.227 (Stat Ann 1962 Eev § 28.424).
In reviewing the defendant’s claim that the policeman lacked probable cause, it is the function of this Court to determine whether the facts available to the officer at the moment of arrest would warrant a fair-minded person of average intelligence and judgment in believing that the suspected person had committed a felony. People v. Sansoni (1968), 10 Mich App 558; People v. Wolfe (1967), 5 Mich App 543; People v. Livermore (1967), 9 Mich App 47; People v. Harper (1962), 365 Mich 494. The conduct of a suspect when detained for inquiry is one of the factual circumstances which may justify a warrant-less arrest, as where the defendant seeks to avoid apprehension and destroy what would be evidence against him. People v. Jackson (1968), 98 Ill App 2d 238 (240 NE2d 421); People v. Cruz (1964), 61 Cal 2d 861 (395 P2d 889).
Looking at all the facts available to the officer at the time of his order to defendant and his companion to stop: the lateness of the hour; the cries for help ,■ the rapid pace of walking from the vicinity of the complainant; and the attempt to cross Woodward against the light, justified the detaining of the pair by the officer for inquiry.
“Relying primarily upon Rios v. United States (1960), 364 US 253, 262 (80 S Ct 1431, 4 L Ed 2d 1688), we have recently held that ‘there is nothing ipso facto unconstitutional in the brief detention of citizens under circumstances not justifying an arrest, for purposes of limited inquiry in the course of routine police investigations’; and that the test of the validity of such a brief detention is whether ‘from the totality of the circumstances’ it appears that the detention was based upon ‘reasonable grounds’ and ‘was not arbitrary or harassing.’ Wilson v. Porter (CA 9, 1966), 361 F2d 412. Supporting authority from this court includes Davis v. People of State of California (CA 9, 1965), 341 F2d 982, 986; Lipton v. United States (CA 9, 1965), 348 F2d 591, 593; Busby v. United States (CA 9, 1961), 296 F2d 328, 331.” Gilbert v. United States (CA 9, 1966), 366 F2d 923, 928.
Added to the facts justifying the detaining of the defendant and his companion for inquiry, the officer observed the discarding of the wallet and the watch by one of the pair. At this point we conclude that the policeman had probable cause to make the arrest.
This being so, the officer making the lawful arrest had authority to search the person of his prisoner and to take from him dangerous weapons. We see no reason why an assisting officer relying upon the directions of the arresting officer could not make the search when made reasonably contemporaneous with the arrest. State v. Pokini (1961), 45 Hawaii 295 (367 P2d 499); People v. Richardson (1959), 51 Cal 2d 445 (334 P2d 573); Broussard v. State (1958), 166 Tex Crim 224 (312 SW2d 664).
The claim of defendant that the search was too extensive is without merit. When probable cause is present justifying a lawful arrest without a warrant, the subsequent search may be thorough to the extent of discovering any weapon that might be upon the person arrested. People v. Gant (1966), 4 Mich App 671, 674.
Finally, after reviewing the lower court record we are convinced that competent evidence was before the trial court on the element of intent. In a concealed weapons case it is only necessary to show intent to carry the weapon. People v. Williamson (1918), 200 Mich 342. The intent to carry the weapon can be gathered from the fact that the defendant had the pistol on his person and concealed in a purposeful manner.
As to defendant’s claim that there was not sufficient evidence produced on the trial to show that he did not possess a license to carry a gun, we look to the record and find that Mr. Robert Fisher, from the Wayne county clerk’s office, testified that he had checked the records for the past 20 years and that up to and including July 22, 1968 he had found no record of a license having been issued to the defendant. The date of the offense was June 12,1968. It is a familiar principle of appellate review that where there is any evidence to sustain the charge in the information, this Court will not attempt to weigh it or to see whether the court sitting without a jury ought to have considered it “sufficient” to sustain the charge. People v. Dolphus (1966), 2 Mich App 229; People v. Williams (1966), 3 Mich App 272; People v. Ritzema (1966), 3 Mich App 637; People v. Bennett (1966), 3 Mich App 326.
Affirmed.
OL 1948, § 750.227 (Stat Ann 1962 Eev § 28.424).
The Court of Appeals for the Second Circuit has gone farther, permitting detention of substantial duration without probable cause. See United States v. Middleton (CA 2, 1965), 344 F2d 78, 80, 81 (dictum); United States v. Vita (CA 2, 1961), 294 F2d 524, 529, 530. | [
10,
9,
7,
31,
3,
-33,
-27,
1,
-15,
79,
39,
-4,
-6,
28,
45,
16,
7,
21,
49,
-57,
-5,
-60,
5,
-3,
-56,
-1,
24,
0,
-5,
40,
34,
-18,
40,
-52,
33,
1,
31,
3,
-12,
43,
-12,
26,
18,
2,
-22,
-9,
-33,
-1,
-10,
-26,
-7,
12,
-20,
32,
-26,
23,
9,
5,
6,
32,
14,
12,
-2,
37,
-43,
11,
-16,
39,
-48,
-8,
12,
7,
-9,
-11,
40,
44,
-24,
-27,
-13,
11,
23,
43,
29,
17,
49,
-9,
-10,
-26,
19,
-69,
12,
33,
-24,
-42,
10,
-30,
77,
-29,
16,
-35,
2,
15,
12,
-6,
-8,
44,
-9,
-4,
-60,
-53,
24,
36,
52,
4,
-8,
3,
-34,
-43,
57,
4,
35,
18,
60,
19,
6,
-30,
-5,
-7,
20,
62,
0,
51,
65,
13,
-17,
-36,
11,
-9,
20,
51,
-42,
43,
-31,
-46,
16,
34,
0,
36,
22,
19,
-51,
-5,
-8,
-24,
-49,
-6,
18,
-27,
-8,
2,
-10,
20,
-22,
-16,
38,
-19,
-54,
3,
-10,
24,
-5,
22,
22,
6,
57,
-5,
-29,
31,
-23,
-43,
10,
-2,
-18,
-27,
0,
-47,
0,
7,
-48,
-24,
6,
-31,
-26,
19,
46,
25,
5,
-4,
8,
-79,
23,
-15,
-24,
-44,
-40,
-10,
34,
36,
27,
39,
0,
1,
0,
-24,
25,
-27,
11,
-26,
1,
-44,
5,
-11,
-1,
1,
17,
-37,
-24,
10,
-45,
20,
29,
52,
-43,
-10,
-19,
-24,
22,
28,
50,
12,
22,
-15,
-21,
-16,
24,
-20,
7,
-32,
12,
22,
-4,
-28,
-27,
-42,
-68,
-48,
10,
27,
66,
27,
-4,
29,
25,
19,
-33,
26,
1,
21,
-22,
-16,
-9,
6,
-27,
-19,
11,
-27,
-69,
42,
-5,
40,
-8,
15,
-11,
28,
5,
-4,
12,
18,
38,
-5,
44,
-42,
-45,
-4,
-10,
-15,
80,
10,
-47,
20,
23,
42,
-26,
-31,
-27,
-27,
40,
-17,
-39,
37,
23,
34,
-35,
19,
-18,
19,
9,
-34,
6,
-40,
-33,
-3,
-50,
-23,
12,
-7,
40,
7,
8,
-60,
45,
-3,
-11,
15,
-45,
25,
-9,
-20,
13,
42,
-48,
-45,
-45,
-32,
40,
54,
23,
38,
-51,
-33,
45,
-5,
9,
-36,
26,
-4,
-50,
-40,
13,
-63,
16,
-13,
-15,
60,
-8,
16,
-3,
-45,
-52,
51,
-14,
-91,
-44,
14,
-21,
33,
71,
11,
-9,
27,
28,
-64,
13,
-30,
-46,
-33,
-13,
-33,
-36,
16,
-47,
8,
0,
-28,
21,
6,
3,
18,
47,
17,
-5,
-2,
39,
27,
-15,
-21,
10,
-4,
-9,
-2,
-78,
3,
48,
42,
21,
-19,
-15,
1,
-11,
-46,
22,
-13,
52,
-30,
7,
31,
-73,
43,
18,
-24,
62,
-17,
38,
-25,
13,
-8,
-42,
-44,
-17,
-17,
-58,
-32,
3,
43,
18,
0,
-19,
-33,
-35,
-2,
54,
1,
82,
-25,
-42,
38,
55,
23,
0,
20,
-7,
-29,
-56,
15,
-15,
-20,
-61,
-12,
27,
-36,
52,
-24,
-55,
-15,
-46,
-12,
-4,
-20,
11,
-40,
-32,
-37,
65,
-2,
-59,
-16,
-6,
-25,
37,
29,
13,
38,
-20,
4,
46,
2,
-43,
-4,
-29,
-16,
-3,
8,
-35,
22,
-6,
-18,
45,
21,
37,
7,
-16,
26,
-48,
-7,
-33,
-37,
-11,
8,
27,
-12,
18,
-14,
-1,
-27,
23,
-7,
-9,
-27,
-48,
-33,
52,
-35,
16,
-27,
59,
6,
-23,
-6,
0,
1,
33,
23,
33,
-11,
3,
-23,
19,
-50,
12,
11,
-12,
11,
7,
-25,
-15,
-42,
-17,
-1,
-23,
-3,
12,
25,
33,
55,
-11,
3,
-14,
59,
93,
-25,
-9,
41,
-30,
-22,
-30,
44,
23,
47,
10,
21,
-1,
24,
-32,
30,
-9,
18,
32,
-4,
-41,
-79,
-27,
7,
5,
-5,
30,
29,
-51,
-4,
-8,
27,
49,
-44,
-4,
48,
84,
-44,
13,
-17,
-22,
-72,
35,
39,
21,
-3,
-32,
16,
-63,
17,
-38,
-10,
-16,
-35,
10,
35,
-11,
-31,
-30,
36,
-38,
-50,
-6,
-20,
11,
-18,
-9,
47,
43,
20,
-55,
-19,
-11,
14,
10,
-8,
13,
9,
-46,
18,
-13,
-58,
-26,
22,
-76,
18,
24,
4,
-54,
-8,
18,
-13,
-2,
12,
-37,
-3,
-9,
-3,
-38,
-21,
39,
1,
13,
17,
15,
17,
-30,
-14,
32,
16,
-62,
-20,
-21,
-25,
-1,
-1,
0,
17,
-43,
31,
24,
8,
-5,
22,
48,
-9,
-10,
4,
55,
2,
36,
-28,
26,
-20,
-25,
-85,
-39,
-10,
-11,
-17,
-15,
-23,
-44,
37,
-12,
-11,
-29,
11,
16,
-19,
-14,
9,
-14,
-17,
28,
28,
3,
16,
13,
-19,
3,
-55,
32,
38,
25,
-26,
-1,
27,
-10,
38,
-55,
-36,
-41,
23,
57,
16,
27,
-59,
8,
-60,
0,
-9,
21,
29,
45,
1,
-27,
29,
37,
54,
-44,
-50,
20,
13,
13,
-51,
-10,
11,
-36,
7,
11,
32,
2,
-47,
19,
-6,
-73,
22,
-18,
-32,
54,
0,
-47,
52,
-12,
12,
1,
0,
-47,
6,
-49,
0,
26,
-31,
-32,
14,
-27,
11,
19,
-6,
39,
-15,
0,
26,
27,
-13,
-31,
29,
5,
39,
38,
-21,
49,
28,
-57,
32,
2,
77,
18,
34,
9,
-16,
23,
-10,
11,
-11,
12,
48,
35,
-82,
-27,
-9,
-26,
8,
32,
40,
-55,
15,
0,
-58,
4,
30,
25,
18,
-11,
53,
17,
5,
-25,
39,
14,
36,
3,
36,
-32,
-17,
16,
62,
-9,
7,
27,
-13,
0,
-10,
-25,
-69,
9,
23,
35,
-41,
13,
57,
15,
28,
44,
41,
-25,
40,
-11,
-42,
-18,
27,
24,
-29,
27,
-19,
20,
-16,
-62,
-53,
-18,
27,
-34,
38,
-36,
-2,
-56,
-3,
-20,
39,
8,
-11,
35,
-3,
-38,
-10,
40,
-8,
27,
1,
-29,
-3,
0,
-12,
15,
-11,
17,
24,
-54,
2,
55,
-16,
-12,
17,
25,
39,
16,
-70,
-13,
7,
15,
21,
-40,
13,
19,
-22,
3,
-22,
67,
-60,
-29,
-8,
-12,
-29,
-68,
76,
-21,
31,
-9,
26,
10,
8,
0,
-31,
0,
-11,
40,
26,
-40,
-27,
-9,
-7,
-62,
-16,
22,
8,
37,
56,
73,
-45,
-8,
37,
23,
-18,
-11,
-14,
26,
17,
-35,
-10,
-56,
-24,
-14,
2,
5,
-38,
30,
3,
2,
23,
-50,
26,
-27,
18,
0,
22,
-39,
69,
5,
11,
15,
11,
-1,
26,
72,
37,
0,
4,
-2,
-3,
-29,
33,
-1,
-6,
45,
-37,
-18,
3,
-1,
5,
-60,
5,
-37,
23,
-33,
37
] |
Per Curiam.
Defendant J. C. Gray was arrested on September 21, 1967, in the city of Kalamazoo and charged with unlawfully interfering with police officers in the performance of their duties in violation of the provisions of CL 1948, § 750.479 (Stat Ann § 28.747).
The record discloses the following events which terminated in defendant’s arrest. William Gray, defendant’s brother, was observed driving his automobile in a reckless manner. A police officer followed him to his mother’s residence where the officer called to the subject saying, “Come here, I want to talk to you.” Gray gave no heed to the directive and continued on into the house. In response to a call for assistance, two more officers arrived at the scene. The officers stood on the porch and conversed with the subject’s mother, whereupon William Gray came out of the house and was placed under arrest for reckless driving. Unwilling to submit to his fate so passively, Gray attempted to run back into the house hut was temporarily subdued by the arresting officer. Defendant, who was also present on the porch, got hold of the officer’s arm, thus freeing his brother who ran into the house. He was captured and again restrained near the bach door of the home where defendant intervened for the second time by knocking the officer off balance and closing the door while William Gray made good his escape. Two criminal cases involving obstructing, resisting, opposing, and assaulting two officers were tried together. Defendant was found guilty in each case by a jury, was sentenced and now brings this appeal.
The questions to which this appeal is directed are whether the officers were engaged in a lawful arrest and whether defendant interfered with the officers while performing their duties.
Defendant contends that the police failed to make an immediate arrest as the law requires. He argues that since his arrest was not immediate, it was illegal, and he cannot be charged with resisting the officers. The people contend that the arrest was immediate and rely on a continuity of action from the time of the reckless driving until the arrest of William Gray was completed.
An examination of applicable law discloses that any peace officer may, without a warrant, arrest a person for the commission of any felony or misdemeanor committed in his presence. CL 1948, § 764-.15 (Stat Ann 1954 Rev § 28.874). Such an arrest must be made immediately. People v. Johnson (1891), 86 Mich 175. If the officers had a right to arrest William Gray without a warrant, then unquestionably the interfering actions of defendant were criminal in nature. However, if the arrest is unlawful, a person is justified in using such reasonable force as is necessary to prevent or to resist the arrest. People v. Krum (1965), 374 Mich 356.
The promptness with which the arrest was made is a point on which the parties do not agree. The question is of such a nature that reasonable minds could disagree and, being such, it is a question of fact within the province of the jury. Only the jury is to say whether the evidence in a criminal prosecution is sufficient to establish facts which are disputed, and they are the sole judges of the credibility of the witnesses and the weight of the testimony. People v. Anschutz (1953), 335 Mich 375.
The record indicates that the jury was properly instructed and after due deliberation found defendant guilty as charged. Hence, the verdict settled the fact that a misdemeanor was committed in the officer’s presence, the arrest was immediate and lawful, and defendant’s interference was unreasonable, unwarranted, and criminal.
Therefore, this Court finds defendant’s arguments unpersuasive for the facts and testimony, if believed, support the verdict of the jury. An appellate court cannot and will not interfere with any factual determination made by a jury and supported by the evidence. People v. Keys (1968), 9 Mich App 482; People v. Shaw (1968), 10 Mich App 315.
Affirmed. | [
-11,
60,
2,
78,
-10,
-4,
-32,
-11,
-5,
60,
22,
22,
-28,
-33,
52,
4,
-13,
8,
42,
12,
17,
-44,
-20,
20,
-38,
-12,
0,
-1,
-53,
42,
18,
-58,
59,
-59,
-15,
6,
48,
-38,
43,
50,
18,
-27,
14,
-1,
-11,
-48,
-16,
16,
-25,
-11,
11,
18,
-2,
26,
-18,
24,
9,
11,
17,
2,
-60,
16,
-3,
-18,
-43,
55,
-28,
59,
-9,
1,
-2,
-4,
-52,
-5,
4,
26,
-29,
-18,
-13,
-12,
-48,
60,
34,
12,
27,
5,
-14,
-72,
-9,
-47,
-3,
-6,
-68,
-33,
7,
-39,
-8,
-17,
14,
-49,
25,
-27,
-27,
48,
20,
35,
-41,
9,
-12,
-60,
-19,
24,
30,
34,
-8,
-9,
-17,
26,
3,
17,
21,
14,
64,
26,
-39,
-41,
4,
-45,
21,
30,
4,
28,
35,
-1,
-67,
-6,
0,
15,
31,
30,
-10,
-3,
-19,
-50,
47,
-15,
-11,
52,
45,
-2,
2,
14,
-23,
33,
-58,
14,
10,
21,
-22,
56,
25,
-18,
-4,
-11,
-2,
-34,
-37,
45,
-17,
26,
16,
11,
11,
-17,
24,
-5,
-58,
54,
-7,
15,
0,
18,
8,
-9,
3,
-60,
20,
5,
17,
-11,
-2,
35,
-15,
12,
16,
49,
24,
35,
-19,
-47,
26,
6,
17,
9,
-30,
-26,
47,
0,
17,
-15,
-30,
-21,
-28,
-17,
3,
-5,
-9,
-13,
16,
-18,
45,
-32,
-10,
32,
-5,
-51,
-25,
-12,
-49,
-5,
72,
13,
-21,
5,
-37,
-24,
-24,
-3,
69,
2,
36,
-26,
-12,
-10,
1,
5,
0,
-12,
-24,
23,
13,
-4,
25,
13,
-7,
-49,
34,
-50,
32,
52,
20,
36,
-34,
31,
-12,
-11,
-32,
3,
-43,
-14,
-31,
-2,
-15,
0,
-31,
9,
-11,
40,
32,
5,
0,
19,
-14,
33,
-20,
-39,
10,
5,
26,
-18,
21,
-51,
-36,
22,
27,
-13,
39,
31,
-72,
8,
35,
8,
-16,
-21,
-21,
-23,
13,
-25,
32,
43,
8,
42,
-31,
8,
27,
-24,
21,
45,
55,
-2,
-74,
-28,
-16,
-2,
-33,
1,
21,
27,
-15,
-53,
15,
3,
-8,
9,
-26,
30,
32,
33,
26,
32,
-41,
11,
-23,
-44,
56,
10,
39,
2,
-24,
-30,
-15,
-23,
-37,
-30,
-19,
13,
-63,
-58,
-8,
4,
27,
-47,
-18,
39,
-33,
-3,
11,
5,
-39,
49,
21,
-64,
-34,
4,
-57,
11,
66,
-31,
-22,
32,
14,
-41,
0,
-2,
-14,
7,
1,
6,
-36,
26,
-23,
-16,
12,
-19,
-28,
15,
22,
-14,
44,
-33,
-24,
18,
28,
32,
-13,
-27,
49,
56,
36,
-2,
-19,
17,
57,
59,
27,
66,
-30,
12,
-15,
-53,
-3,
-1,
18,
-34,
53,
19,
-15,
32,
-3,
-3,
45,
-33,
54,
-18,
28,
9,
-58,
-84,
-18,
7,
-53,
2,
34,
59,
21,
-25,
-62,
-22,
-7,
31,
2,
17,
66,
16,
-33,
77,
19,
53,
-39,
40,
-29,
-41,
-56,
10,
-9,
-34,
-34,
1,
30,
10,
-4,
-9,
6,
2,
-28,
-31,
-9,
-10,
-39,
-39,
-69,
-12,
29,
-28,
-26,
0,
0,
-31,
31,
61,
16,
12,
-9,
36,
22,
16,
-13,
-1,
-32,
0,
12,
57,
-38,
60,
-21,
-55,
56,
27,
4,
-45,
-8,
5,
-58,
-2,
-33,
-18,
32,
-20,
18,
0,
-5,
31,
-3,
12,
-12,
25,
-6,
-62,
-31,
-16,
46,
-7,
24,
-10,
29,
-8,
-12,
-1,
-40,
0,
29,
-11,
3,
-7,
-11,
-31,
19,
-24,
52,
14,
-16,
-1,
-45,
-27,
17,
-32,
-13,
35,
-15,
26,
-12,
-17,
27,
41,
-1,
29,
-1,
60,
60,
13,
-43,
76,
-21,
5,
19,
26,
42,
7,
-34,
-30,
30,
9,
-14,
63,
-6,
23,
-35,
-2,
-22,
-55,
-22,
26,
28,
-55,
6,
46,
2,
-8,
-3,
-41,
23,
20,
4,
23,
53,
-7,
6,
-27,
-6,
13,
40,
23,
-32,
-14,
-27,
24,
-32,
10,
-6,
-34,
-36,
-43,
-18,
25,
-54,
-35,
-13,
41,
-7,
-23,
-33,
7,
-38,
8,
7,
20,
30,
52,
-33,
-5,
44,
35,
35,
-1,
4,
71,
33,
17,
-21,
0,
-51,
-13,
-47,
18,
48,
-5,
-38,
-6,
15,
-26,
41,
-10,
-37,
4,
-67,
-16,
-49,
-45,
34,
0,
5,
3,
13,
19,
5,
34,
30,
15,
13,
-17,
-23,
-27,
8,
-42,
67,
-29,
5,
0,
2,
35,
-8,
-17,
43,
-36,
30,
46,
-36,
15,
25,
19,
-28,
14,
-24,
-27,
-22,
9,
-16,
11,
-1,
-10,
-42,
2,
19,
-13,
-6,
18,
1,
-30,
6,
5,
-38,
4,
21,
-7,
54,
-10,
-27,
-63,
41,
-29,
-3,
0,
7,
-21,
-33,
-24,
-17,
-14,
-20,
18,
-49,
-5,
-9,
5,
44,
-52,
-34,
-22,
-23,
14,
46,
-28,
33,
14,
-38,
11,
8,
28,
-58,
23,
55,
26,
33,
4,
-54,
-15,
-46,
-27,
30,
10,
-66,
-27,
23,
-4,
-30,
-18,
-19,
-44,
4,
24,
11,
24,
-48,
8,
19,
23,
-2,
13,
-17,
0,
18,
-25,
-29,
-7,
-9,
7,
28,
-53,
72,
-5,
21,
0,
58,
-56,
14,
0,
8,
39,
0,
-3,
27,
-27,
-70,
-30,
-44,
-9,
-3,
4,
-5,
21,
37,
-24,
12,
-25,
-15,
44,
96,
-36,
-17,
-13,
-17,
5,
-13,
12,
-24,
7,
35,
-37,
-4,
45,
-14,
8,
5,
9,
14,
58,
0,
8,
28,
35,
-36,
-10,
-56,
-48,
3,
22,
-30,
32,
6,
-7,
-34,
-4,
-11,
-50,
16,
-29,
36,
1,
14,
15,
-7,
-62,
9,
51,
-15,
12,
34,
18,
-3,
56,
-13,
-16,
48,
42,
22,
20,
-32,
-92,
-43,
6,
15,
15,
-43,
-4,
-66,
42,
17,
26,
-7,
-21,
43,
18,
-36,
20,
9,
13,
33,
24,
-65,
-11,
-27,
-3,
58,
-19,
-7,
19,
-24,
-15,
60,
-27,
35,
13,
2,
36,
-20,
-1,
-28,
-32,
-8,
24,
-23,
-16,
-33,
-50,
-7,
-41,
75,
-17,
10,
-13,
-51,
9,
-62,
32,
-29,
19,
14,
-30,
-14,
15,
-12,
8,
9,
-7,
18,
27,
8,
-42,
-19,
-27,
-20,
14,
53,
-8,
3,
1,
29,
-33,
-34,
39,
9,
-36,
0,
20,
8,
-1,
-6,
10,
-7,
-60,
-78,
-17,
-4,
-9,
-17,
19,
-38,
14,
-52,
-47,
-16,
19,
5,
44,
-31,
39,
-57,
13,
49,
34,
3,
13,
42,
23,
67,
-10,
-9,
27,
-35,
5,
-1,
-9,
-18,
2,
-10,
11,
-13,
35,
4,
56,
-24,
18,
-20,
25
] |
O’Hara, J.
These are appeals of right by defendants from jury convictions of first-degree felony murder, MCLA 750.316; MSA 28.548. The cases have been joined here for review.
We have examined the many assignments of error and those which we believe control may thus be characterized:
To what extent if any did the rulings of the trial judge as to the people’s examination of their witness Larry Kent offend against the holding in People v Thomas, 359 Mich 251 (1960)?
In substance Thomas, supra, held that refreshing the recollection of a witness by reference to a prior statement cannot by extension become an actual impeachment without laying a proper foundation for such impeachment.
In the case at bar there is no doubt that the prosecuting attorney sought to expose the difference between Kent’s trial testimony and his previ ous statement to the police. He attempted to do the same thing with the witness’s testimony at the preliminary examination. The witness contended he could not remember either clearly or that he was not sure. At this point it was the prosecution’s right and obligation to bring out the inconsistency. Under ample case precedent and eminent textbook authority he was entitled to do so. As far back as 1852 our Supreme Court put the matter very succinctly. First, the Court discusses the prior rule that there must be an express denial by the witness of the statements imputed to him. Our Court then observed:
“In Paine v Beeston, 1 Mood & Rob, Tindal, C. J., held at nisi prius, there must be an express denial by the witness of the statements imputed to him, before they can be proved to discredit him. But some seven years later, Parke, B., held directly the contrary in Crowley v Page, 7 Car & P 787, and he says, it has always been his practice to admit the evidence where the witness said he did not remember. Prior to the Queen’s case, 2 Brod & Bing 284, it does not seem to have been well established, that it was necessary to lay any foundation for evidence of previous contradictory statements of the witness, by first interrogating the witness specifically in relation to them. See Tucker v Welch, 17 Mass R 161. The reason assigned for requiring it is, that as the direct tendency of the evidence is to impeach his veracity, common justice requires that by first calling his attention to the subject, he should have an opportunity to recollect the facts, and, if necessary, to correct the statements already given, as well as by a reexamination to explain the nature, meaning, and design of what he is proved elsewhere to have said. 1 Green Ev §§ 462-463. It is essentially a rule of protection to the witness sought to be discredited, and ought not to be extended so far as to become a convenient shield for his iniquity. If he answers that he does not recollect having made the statements imputed to him, they may still be susceptible of such proof as, if received, would make this very answer more effective to discredit him, than the contradictory statements themselves. And there is no great hardship, to an honest witness, in allowing the evidence to he gone into after such a reply, for he has an ample opportunity to explain on his reexamination. We do not therefore think it either necessary or safe to require in all cases an express denial. If we do, a witness can never be discredited when he says he does not remember.” Smith v People, 2 Mich 415, 417-418 (1852).
Later cases strengthen this holding, Higdon v Kelley, 339 Mich 209, 217 (1954), quotes with approval Hickory v United States, 151 US 303, 309; 14 S Ct 334, 336; 38 L Ed 170, 174 (1893).
"When a party is taken by surprise by the evidence of his witness, the latter may be interrogated as to inconsistent statements previously made by him for the purpose of refreshing his recollection and inducing him to correct his testimony; and the party so surprised may also show the facts to be otherwise than as stated, although this incidently tends to discredit the witness.” See also Higgins v Monroe Evening News, 42 Mich App 301 (1972).
For the effect of very recently decided Hileman v Indreica, 385 Mich 1 (1971), and illuminating comments on the distinction between impeachment and "jogging memory” the interested may refer to 18 Wayne L Rev 101, 108-112 (1971).
We deem it unwise in this case to write extensively to this point. Kent was a res gestae witness and could have been impeached by the prosecution in any event.
The other substantial error claimed is the admissibility of hearsay testimony. It would prolong this opinion unduly to review the whole fact situation which gave rise to the remark which was admitted. It was ascribed to a witness who did not testify, and what she was supposed to have said was repeated by another witness. The witness testifying claimed that after the double killing when all of the involved people reassembled at a different location, defendant Brown, without saying anything, held up three fingers. The witness Harris asked another woman present what the gesture or sign meant. The third person is supposed to have said "three of them were dead”. If there is such a thing as triple hearsay this would be a prime example thereof. It was error. The prosecution should not have asked the question. Too often overzealousness on the part of the prosecution can give rise to error that vitiates an otherwise well prepared and presented case. The trial court should not have admitted it, although objection thereto was made only by counsel for one defendant.
The error is not reversible. As to two defendants it was waived for failure to object. As to the effect of its admission on the total case it could not have been particularly damaging. Two people had been deliberately killed, perhaps executed is the better word.
It is the settled public policy of this state by legislative enactment and the judicial policy by court rule that no judgment of conviction shall be set aside for the erroneous admission of evidence, absent a miscarriage of justice. We add, of course, that there can be instances when such an error can rise to the stature of denial of due process by denying the defendant a fair and impartial trial. The whole record in this case suggests neither. The other indicia of guilt were so strong we are not moved to hold this error reversible.
We have reviewed the other assignments of error and find none which would support a reversal of the jury verdict.
Affirmed.
All concurred.
Smith v People, 2 Mich 415 (1852).
We are not unaware of the dicta in People v Durkee, 369 Mich 618 (1963), cited by the majority in Hill v Harbor Steel & Supply Corp, 374 Mich 194 (1965). However, the considered weight of authority is to the contrary. See Pringle v Miller, 111 Mich 663 (1897); Anthony v Cass County Home Telephone Co 165 Mich 388 (1911); Rodgers v Blandon, 294 Mich 699 (1940); Osberry v Watters, 7 Mich App 258 (1967); People v Graves, 15 Mich App 244 (1968); People v Dozier, 22 Mich App 528 (1970); 1 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 438, p 540; McCormick, Evidence (2d ed), § 37, p 72; 4 Jones, Evidence (5th ed), § 937, p 1766; 3A Wigmore, Evidence (Chadbourne rev 1970), § 1037, p 1043.
MCLA 769.26; MSA 28.1096; GCR 1963, 529. | [
45,
-28,
14,
-47,
28,
-10,
9,
-40,
-22,
15,
29,
-30,
24,
3,
13,
14,
-29,
-33,
53,
-43,
16,
-50,
-55,
2,
4,
-26,
2,
46,
-52,
-24,
47,
14,
-15,
-7,
27,
-6,
36,
52,
-13,
17,
19,
-11,
-35,
-30,
-45,
-5,
-14,
-13,
0,
14,
31,
17,
14,
15,
-51,
0,
9,
40,
-4,
0,
-4,
28,
-8,
-77,
-50,
-24,
0,
-26,
-70,
-14,
-88,
12,
-12,
-41,
3,
-35,
-14,
-19,
12,
-20,
9,
37,
34,
12,
0,
2,
27,
-17,
-10,
14,
28,
-37,
-24,
6,
-54,
-12,
81,
-6,
47,
34,
-28,
12,
18,
1,
-34,
38,
-43,
-25,
31,
-22,
26,
7,
41,
-6,
-20,
-12,
-4,
-16,
-73,
-26,
3,
6,
2,
0,
-12,
5,
32,
-34,
-24,
-13,
-16,
6,
67,
23,
-14,
3,
-7,
-16,
30,
0,
13,
-7,
21,
-25,
13,
8,
-28,
0,
-2,
30,
-13,
5,
-35,
-16,
-21,
-26,
-1,
-46,
23,
1,
31,
27,
-73,
-24,
4,
5,
-60,
-54,
24,
-27,
-23,
5,
35,
17,
5,
-1,
-21,
-18,
5,
-6,
-30,
56,
33,
5,
21,
1,
-46,
6,
40,
-17,
-51,
40,
4,
2,
96,
-4,
-46,
10,
49,
-37,
9,
7,
-10,
-5,
3,
7,
4,
-22,
-15,
18,
-70,
16,
-11,
-77,
23,
-45,
10,
-34,
7,
64,
-6,
29,
1,
-21,
-8,
6,
-30,
46,
-27,
15,
4,
-3,
-42,
0,
28,
36,
32,
-1,
27,
2,
7,
9,
17,
-20,
14,
46,
35,
2,
-21,
3,
35,
30,
42,
-3,
-53,
-3,
30,
-10,
-10,
-27,
32,
50,
-11,
9,
-49,
44,
16,
69,
36,
7,
-14,
-13,
1,
65,
-4,
5,
4,
-27,
-54,
12,
0,
39,
28,
20,
-41,
-30,
-26,
92,
19,
10,
64,
-40,
-68,
32,
6,
37,
-6,
36,
14,
-20,
61,
-20,
30,
-28,
13,
-16,
35,
13,
-19,
13,
33,
26,
-8,
55,
23,
52,
-41,
-18,
42,
-42,
-30,
-20,
7,
-72,
14,
-4,
-2,
-75,
6,
-45,
-40,
9,
35,
7,
32,
-19,
-9,
8,
11,
21,
41,
-76,
-25,
-62,
23,
49,
-28,
-12,
-61,
-24,
37,
48,
27,
14,
6,
-20,
15,
-47,
21,
-66,
25,
-20,
-10,
67,
6,
18,
-40,
-30,
3,
4,
58,
-50,
-15,
-21,
1,
-25,
33,
-45,
-32,
28,
-50,
34,
-9,
-66,
12,
-2,
17,
17,
-23,
11,
-19,
4,
-18,
-26,
-69,
0,
-16,
32,
34,
18,
-30,
-3,
21,
-20,
-13,
-12,
9,
34,
30,
4,
14,
54,
-11,
3,
-36,
-64,
-4,
-31,
55,
26,
18,
-16,
60,
-3,
58,
-16,
-18,
50,
-7,
-59,
-27,
-37,
-1,
-19,
-23,
8,
-24,
1,
28,
-45,
-24,
3,
-3,
28,
-6,
10,
8,
-15,
18,
7,
-30,
19,
10,
-59,
-21,
8,
47,
-30,
10,
11,
43,
-50,
-40,
32,
30,
28,
-52,
-61,
19,
-13,
31,
-4,
28,
53,
-36,
14,
-1,
42,
-3,
-47,
94,
-19,
-20,
-25,
-43,
7,
-21,
-33,
7,
-81,
-39,
4,
-27,
-8,
-23,
-22,
-29,
-28,
-31,
14,
15,
18,
-28,
-35,
4,
28,
34,
-54,
44,
21,
-26,
12,
-5,
34,
-31,
-17,
61,
-2,
-13,
-7,
55,
-10,
-13,
-47,
-37,
3,
-46,
11,
10,
-62,
50,
19,
20,
6,
45,
39,
7,
-20,
-7,
3,
-29,
50,
50,
11,
17,
-26,
7,
-32,
43,
71,
30,
34,
11,
3,
-25,
14,
37,
1,
25,
-19,
-49,
9,
65,
29,
21,
12,
-52,
-32,
47,
-55,
31,
-10,
-44,
31,
-23,
5,
12,
43,
28,
10,
-20,
-4,
4,
-24,
-26,
22,
0,
-8,
2,
1,
-37,
22,
26,
4,
0,
-29,
-27,
0,
-18,
45,
20,
0,
-61,
0,
-2,
26,
22,
2,
-29,
-48,
59,
-20,
-17,
-13,
-19,
36,
-38,
49,
-38,
-4,
-4,
-22,
-38,
-9,
31,
-19,
3,
-21,
-49,
-50,
-14,
-27,
-81,
26,
-38,
-22,
15,
0,
3,
14,
0,
15,
41,
15,
49,
10,
11,
41,
15,
-24,
-24,
20,
0,
-25,
2,
15,
5,
59,
32,
5,
7,
8,
-29,
-50,
-35,
28,
6,
-34,
0,
-2,
21,
-7,
21,
16,
19,
-10,
-9,
-16,
-32,
-31,
-23,
1,
-10,
7,
-6,
-40,
-93,
0,
-14,
29,
4,
-16,
48,
-19,
-4,
15,
47,
-42,
14,
-31,
-18,
-60,
58,
3,
-3,
-24,
22,
2,
38,
10,
9,
14,
-46,
-27,
45,
-17,
-59,
7,
4,
49,
17,
27,
58,
-8,
14,
21,
51,
-32,
41,
-29,
17,
-60,
-1,
36,
9,
24,
49,
-3,
19,
29,
-34,
5,
21,
-43,
5,
-3,
-7,
-37,
-24,
19,
36,
20,
74,
11,
-75,
59,
-4,
-31,
-10,
-77,
45,
2,
28,
-14,
-54,
-12,
31,
-20,
19,
3,
-52,
-73,
44,
37,
-46,
47,
26,
52,
50,
4,
12,
-17,
-39,
42,
54,
-18,
-12,
-7,
-71,
14,
-1,
-11,
-36,
69,
9,
4,
8,
-29,
-43,
34,
-21,
-25,
9,
-19,
24,
15,
-6,
3,
-23,
-24,
39,
-5,
-44,
-31,
-19,
-55,
25,
-52,
42,
-12,
11,
33,
39,
0,
-9,
27,
13,
-42,
-21,
-1,
3,
3,
-13,
61,
18,
-21,
7,
9,
-12,
9,
-21,
28,
-17,
26,
20,
26,
-7,
31,
-52,
20,
11,
76,
33,
40,
-4,
-19,
2,
-36,
25,
42,
23,
21,
12,
-6,
7,
-13,
14,
-3,
23,
-30,
28,
10,
10,
8,
-28,
43,
-4,
-11,
-14,
37,
2,
-2,
6,
27,
35,
-29,
17,
-74,
-7,
4,
78,
27,
17,
3,
-15,
-2,
18,
-24,
-3,
34,
-12,
-46,
-22,
35,
38,
-5,
13,
8,
19,
19,
2,
-3,
27,
-32,
65,
22,
-16,
-4,
55,
20,
7,
44,
4,
20,
12,
-61,
-5,
-20,
-7,
-4,
-10,
17,
-14,
-26,
5,
43,
-32,
-39,
-22,
16,
8,
-29,
-56,
46,
-53,
5,
-90,
4,
-25,
13,
-36,
-40,
-41,
31,
29,
27,
-56,
13,
-26,
-27,
-21,
62,
-12,
-26,
7,
-40,
-67,
5,
-20,
33,
9,
-25,
46,
-59,
-33,
11,
21,
-54,
-51,
-21,
-25,
5,
-30,
1,
-27,
3,
31,
22,
-17,
-41,
10,
20,
-61,
25,
-12,
54,
-29,
-39,
18,
1,
1,
22,
23,
-30,
8,
-22,
14,
35,
-11,
-34,
-15,
-47,
30,
15,
-39,
1,
18,
-41,
3,
-13,
-1,
44,
23,
29
] |
Quinn, . P. J.
On leave granted, defendants appeal from an order of the trial court which granted a rehearing on defendants’ prior motion for accelerated judgment, set aside the order granting that motion and awarding defendants an accelerated judgment, and denied a second motion for accelerated judgment.
In 1969, Lynn and Dorothy M. Matthews owned a 120-acre farm on the western edge of plaintiff municipality. They had farmed the land for several years, but rising real estate taxes made the farming operation a losing proposition. The Matthews desired to sell the land for use as a trailer park, but the land was zoned AG, agricultural district. This classification restricted permissible uses to farming, single family residences, dog kennels, etc.
The Matthews petitioned for rezoning to R-3 in which classification trailer parks were permitted. The petition was considered by the planning commission and council of Novi. The council denied the petition. September 23, 1969, the Matthews filed an action against the City of Novi seeking a declaration that the zoning ordinance was unconstitutional as applied to their property and requesting that the city be enjoined from interfering with the use of the property for trailer park purposes.
The foregoing action was tried between June 15 and June 26, 1970, adjourned to October 26, 1970 and concluded that date. Judgment entered February 17, 1971 holding the zoning ordinance unconstitutional and void as applied to the Matthews property. The requested injunctive relief was not granted. No appeal was taken from this judgment.
November 9, 1970, the city adopted and gave immediate effect to an ordinance which reclassified the Matthews property from AG to R1H, country home district. The latter classification restricted use of the property to one family dwellings, schools, hospitals, parks, municipal buildings, and agricultural purposes and buildings. This ordinance was never called to the attention of the trial judge in the Matthews litigation nor was any attempt made to introduce it in the Matthews action.
After the judgment of February 17, 1971, the Matthews sold the land to defendants. In reliance on the judgment, defendants commenced development of the property as a trailer court. Defendants petitioned the plaintiff to rezone the property to R-3. After a hearing April 15, 1971, the council denied the petition but amended the zoning ordinance in a manner which reaffirmed the R1H classification of the land in question.
August 20, 1971, plaintiff filed the present action seeking to enjoin defendants from proceeding with construction of the trailer court and from using the land for such a purpose because such construction and use violated the zoning ordinance. August 24, 1971, defendants moved for accelerated judgment, GCR 1963, 116.1(5), on the basis of the Matthews judgment of February 17, 1971. This motion was heard October 6, 1971 and it was granted. Accelerated judgment for defendants was entered October 7,1971.
October 12, 1971, plaintiff moved for rehearing on the basis that the present case presented issues not before the court in the Matthews litigation because of the ordinance of November 9, 1970 which reclassified the land in question to R1H. The trial court agreed that the constitutionality of the R1H classification was not before the court in the Matthews litigation and on December 20, 1971, the order appealed from entered.
In granting defendants’ first motion for accelerated judgment, the trial court agreed with defendants’ reasoning that the action at bar was barred by Matthews on the basis of res judicata and the order entered on that motion so provided. On this appeal, defendants contend that the action is barred by Matthews on theories of res judicata and collateral estoppel.
In opposing the applicability of both theories to this action, plaintiff argues that the ordinance establishing R1H classification for the property was not before the court in Matthews. Plaintiff further contends that because the AG classification permitted one family dwellings on unplatted farm land and R1H classification permits one family dwellings on lots platted to at least one-half acre per lot, different facts would be required to sustain the constitutionality of the R1H ordinance than were used in determining the constitutionality of the AG ordinance.
We find no persuasion in this argument in view of the finding of the trial court in Matthews, "The testimony shows that there is no demand for residential use of the subject property at this time without sewers and water. There are no public utilities which will be made available within the foreseeable future.” To us, this says that the land in question is not suitable for residential use now, or in the foreseeable future, whether platted or unplatted.
We note that some of the permitted uses of defendants’ land under the R1H classification are the same uses that were permitted under the AG classification. As to permitted uses that are the same under the AG classification and the R1H classification, the October 7, 1971 order of the trial court was correct, and its December 20, 1971, order was incorrect. The unappealed judgment of February 17, 1971 in the Matthews v City of Novi litigation was res judicata of all issues in the present action arising from permitted uses that were the same under both classifications.
The doctrine of collateral estoppel also precludes litigating again those issues arising from permitted uses that are the same under both classifications, Howell v Vito’s Trucking & Excavating Co, 386 Mich 37 (1971).
There are permitted uses under the R1H classification which were not permitted uses under the AG classification. What effect, if any, this may have on the constitutionality of the ordinance establishing the R1H classification for the land in question we are unable to determine on the present record.
The order appealed from is reversed as to all issues disposed of by Matthews v City of Novi. In all other respects, the order appealed from is affirmed. Remanded for further proceedings but without costs, neither party having prevailed in full.
All concurred. | [
-1,
62,
24,
-26,
-38,
-37,
5,
10,
-36,
73,
-22,
9,
19,
22,
22,
4,
-5,
-61,
-12,
2,
-25,
6,
-61,
19,
-32,
-38,
11,
-48,
-4,
21,
22,
-58,
-20,
4,
-14,
5,
31,
16,
37,
29,
-7,
-5,
-32,
-6,
-20,
-14,
73,
4,
30,
15,
-4,
44,
17,
-10,
-45,
-6,
13,
-6,
40,
33,
-53,
37,
-59,
100,
42,
-4,
4,
8,
34,
-63,
4,
8,
-30,
-19,
27,
38,
-10,
25,
-9,
33,
12,
24,
54,
9,
-64,
4,
-20,
-28,
31,
-33,
-10,
-12,
-4,
5,
-4,
23,
38,
-13,
38,
-31,
-17,
40,
41,
5,
-39,
9,
-22,
-23,
53,
-24,
21,
-1,
31,
-24,
7,
14,
0,
-4,
32,
11,
22,
-40,
-29,
-48,
8,
-41,
21,
-3,
-32,
21,
24,
-12,
-7,
0,
0,
40,
8,
-16,
-15,
-5,
69,
38,
13,
-4,
20,
-39,
19,
-25,
-41,
6,
-59,
18,
-34,
49,
5,
30,
39,
35,
-15,
24,
22,
0,
-21,
-19,
-18,
4,
-28,
3,
-14,
-7,
56,
15,
-16,
31,
46,
18,
29,
3,
-44,
-25,
-52,
24,
-15,
-34,
-32,
-5,
-19,
-20,
-52,
-9,
29,
-66,
41,
-14,
16,
5,
2,
6,
-38,
40,
-28,
-4,
40,
-16,
23,
-1,
15,
65,
20,
14,
-42,
-72,
-17,
-8,
81,
-9,
-26,
45,
28,
13,
40,
23,
1,
0,
-78,
29,
-22,
9,
18,
5,
0,
-27,
-20,
36,
-10,
-23,
-13,
43,
1,
21,
24,
-23,
-43,
-3,
-34,
74,
0,
-29,
28,
-19,
3,
-44,
-72,
-25,
-44,
-26,
-30,
-11,
-4,
37,
26,
0,
3,
22,
-29,
27,
-37,
-6,
-20,
64,
-47,
23,
-10,
4,
-66,
-19,
16,
-1,
22,
6,
-5,
-28,
3,
20,
-2,
19,
-16,
36,
-46,
26,
11,
19,
-6,
9,
-2,
-57,
12,
-28,
30,
6,
-13,
30,
-39,
-19,
-23,
-33,
-11,
-22,
3,
22,
15,
1,
27,
-22,
27,
-45,
-1,
-42,
31,
-49,
41,
53,
16,
31,
-48,
21,
11,
-28,
13,
-15,
-2,
16,
-17,
17,
7,
34,
-23,
-67,
-29,
14,
1,
27,
-5,
-27,
42,
4,
13,
-18,
42,
25,
75,
23,
-12,
-8,
-18,
-14,
-31,
-18,
-56,
-30,
70,
19,
-23,
-32,
-7,
5,
-18,
-32,
-5,
6,
-34,
8,
31,
54,
52,
2,
0,
-15,
-1,
19,
-13,
-27,
52,
-4,
30,
23,
0,
-4,
3,
1,
-16,
-49,
3,
0,
10,
-13,
26,
60,
-3,
-17,
13,
-2,
-28,
32,
-22,
-23,
23,
-45,
13,
29,
-44,
-1,
8,
18,
-22,
18,
-8,
-34,
-36,
-9,
44,
-8,
11,
-59,
10,
30,
13,
-29,
50,
39,
-49,
20,
26,
-35,
40,
14,
-49,
5,
-57,
17,
-30,
-15,
-40,
0,
-25,
-51,
-42,
-25,
-1,
-6,
45,
55,
-41,
-28,
-44,
-16,
10,
41,
5,
-52,
32,
-8,
-14,
-5,
4,
-7,
-50,
-14,
7,
-2,
-44,
64,
25,
-13,
5,
-21,
-32,
13,
-10,
6,
6,
-45,
-51,
35,
13,
-9,
-21,
45,
15,
67,
5,
42,
10,
37,
-18,
25,
21,
-25,
2,
-4,
-42,
-27,
24,
-10,
37,
33,
-22,
-43,
2,
49,
-39,
-34,
-2,
42,
-11,
29,
5,
-5,
32,
28,
-18,
-21,
-4,
-52,
40,
0,
-6,
14,
28,
21,
0,
10,
23,
11,
-4,
-61,
-27,
19,
-10,
2,
-10,
-8,
25,
25,
-8,
4,
-15,
-51,
4,
-28,
11,
6,
-47,
-2,
2,
-29,
-21,
-15,
-28,
10,
19,
23,
25,
-7,
50,
-54,
9,
-67,
30,
50,
-5,
6,
30,
-17,
10,
18,
-10,
21,
-11,
14,
-46,
19,
17,
-2,
34,
-25,
0,
16,
-8,
-4,
-67,
17,
-12,
-19,
36,
-15,
-13,
1,
-1,
0,
-2,
28,
-21,
-6,
-9,
-22,
-18,
-14,
0,
-47,
6,
-17,
-41,
51,
12,
30,
-7,
-32,
24,
3,
-14,
-39,
-17,
-9,
-47,
-49,
29,
43,
16,
2,
-37,
53,
-15,
-18,
23,
27,
-7,
45,
-23,
30,
-44,
52,
-11,
-8,
-31,
-28,
2,
-43,
-47,
2,
-42,
78,
15,
-23,
58,
-21,
24,
-31,
20,
-47,
1,
26,
32,
-40,
-22,
-84,
-18,
-21,
-23,
10,
19,
35,
23,
29,
3,
5,
-31,
20,
24,
5,
-43,
12,
-44,
-17,
44,
-24,
19,
37,
33,
90,
0,
41,
18,
25,
-45,
-3,
-22,
43,
23,
17,
15,
44,
61,
-4,
-6,
37,
39,
-3,
-20,
-4,
-42,
37,
27,
-30,
0,
24,
26,
4,
-9,
12,
10,
38,
-48,
-47,
-5,
-3,
-4,
-43,
58,
-10,
14,
47,
62,
-16,
21,
16,
-45,
11,
15,
8,
5,
-54,
-48,
5,
-39,
16,
-8,
44,
-18,
-7,
-21,
-6,
-8,
15,
-14,
-37,
13,
-49,
-12,
7,
13,
-66,
-50,
50,
-64,
-39,
28,
16,
34,
-13,
-43,
16,
-3,
-25,
2,
-4,
-49,
33,
23,
-21,
-56,
-33,
7,
-27,
-62,
-55,
-28,
21,
-17,
-2,
3,
-42,
0,
7,
-4,
22,
-10,
6,
-4,
-8,
-27,
27,
-28,
54,
-8,
-38,
-50,
20,
7,
-10,
10,
8,
-48,
-28,
17,
24,
-14,
62,
-49,
39,
-5,
29,
-35,
-9,
10,
-16,
65,
-33,
0,
51,
42,
-11,
41,
50,
-28,
-48,
63,
30,
5,
14,
-16,
-26,
12,
2,
-29,
-14,
3,
32,
41,
15,
-29,
-13,
4,
-8,
-32,
-5,
5,
52,
-2,
14,
31,
-8,
-4,
-4,
-30,
43,
-4,
-62,
35,
71,
21,
-18,
18,
51,
26,
22,
-74,
-15,
7,
20,
80,
-16,
-25,
4,
7,
-6,
0,
29,
12,
5,
43,
8,
-50,
-3,
11,
21,
-37,
0,
-16,
-27,
-34,
10,
16,
-18,
-12,
-20,
13,
37,
-16,
-42,
-51,
-11,
-27,
-20,
-14,
-30,
-42,
-20,
29,
33,
-2,
-6,
-21,
-9,
-8,
-84,
-9,
-6,
55,
78,
23,
63,
-37,
-37,
-16,
23,
8,
-19,
7,
-34,
-15,
28,
-18,
58,
-11,
-38,
17,
12,
23,
-47,
-13,
-11,
35,
0,
23,
30,
-70,
11,
31,
-21,
-16,
21,
15,
20,
27,
1,
-36,
14,
-22,
10,
-43,
-63,
16,
-14,
28,
34,
-25,
40,
9,
15,
37,
-53,
36,
-14,
-7,
16,
20,
-19,
4,
-7,
-12,
-16,
51,
23,
-28,
-5,
-59,
-19,
-20,
1,
68,
39,
31,
6,
-15,
3,
18,
-15,
-14,
-27,
-44,
3,
20,
-24,
-36,
33,
1,
11,
-66,
-33,
9,
-22,
-25,
18
] |
Holbrook, J.
Plaintiff William Longnecker was a passenger in an airplane owned by defendantappellee Noordyk-Mooney, Inc., an aircraft dealership, and piloted by defendant-appellee Stuart P. Noordyk when the plane crashed on landing October 8, 1966. Joined by his wife, Mr. Longnecker sued defendants for injuries arising out of the crash. After the trial judge ruled that Mr. Longnecker was a "guest passenger” under the terms of MCLA 259.180a; MSA 10.280(1), the case was submitted to the jury, over the plaintiffs’ objection, on a standard of "gross negligence or wilful and wanton misconduct” rather than ordinary negligence. The jury returned a verdict for defendants and plaintiffs now appeal the ruling of the trial judge finding Mr. Longnecker a "guest passenger” as defined by MCLA 259.180a(2);_ MSA 10.280(1)(2).
The specific portion of MCLA 259.180a(2); MSA 10.280(1)(2) in contention here reads as follows:
" 'Guest’ means any person * * * except any passenger while the aircraft is being used in the business of demonstrating or testing.”
Plaintiffs contend that the key to the excerpt above is the phrase "business of demonstrating”, i.e., as long as the defendants were in the "business of demonstrating” aircraft for retail sales, "any passenger” could not be a guest in terms of the statute. Plaintiffs then go on to argue that defendants were in the "business of demonstrating”, thereby excluding Mr. Longnecker from the guest category.
Plaintiffs treat the definition of "guest” in segments, thereby placing primary emphasis on the words "used in the business of demonstrating or testing” to support their claim. The language, they argue, was not meant to only provide an exemption for any passenger in an aircraft "while * * * being used in * * * demonstrating or testing”. Plaintiffs further claim that if that latter meaning was intended the Legislature could have chosen the words " * * * while the aircraft is being used for demonstration purposes”. While we acknowledge that the Legislature might have written the statutory definition in such a way as to avoid the issue being raised here, we still have little difficulty in recognizing what seems to us to be the Legislature’s obvious purpose in passing this legislation, and that purpose is to exempt from the guest-passenger classification those passengers in an aircraft "while the aircraft is being used in * * * demonstrating or testing”. Therefore, we hold that when a dealer demonstrates or tests his aircraft for sales or business reasons, no passengers are guests. On the other hand, when a dealer is on a business flight and invites along a passenger without intentions of demonstrating or testing the aircraft to the passenger, the passenger is a guest under the terms of the statute.
We note in passing that guest-passenger statutes are in derogation of the common law and are therefore to be strictly construed in light of their policies. McCann v Terhune, 12 Mich App 364 (1968). No case has yet specifically recognized the policy reasons behind the aircraft guest-passenger exception, but cases decided with reference to the motor-vehicle guest-passenger statute, MCLA 257.401; MSA 9.2101, are sufficiently analogous to guide our discussion here. Indeed, except for the aircraft statute’s separate definition of the term "guest”, the two statutes are substantially identical in content. The policies behind the motor-vehicle guest-passenger statute were most recently enunciated in Gifford v Evans, 35 Mich App 559, 564 (1971), leave den, 386 Mich 773 (1971), and are equally applicable to the aircraft statute in question here:
"The rationale for the guest passenger act was explored by the Supreme Court in Naudzius v Lahr, 253 Mich 216 (1931), where the Court indicated its purpose was to prevent fraud and collusion between friendly passengers and drivers where the real defendant is an insurance company, to protect the general public from high insurance rates which might otherwise result, and to encourage the assistance of travelers and those in need of a lift.”
While these policies would be sustained by our interpretation of the statute, they would not be by plaintiffs’ interpretation. For plaintiffs’ statutory construction would mandate the classification of all passengers as non-guests if the aircraft owner or operator was in the business of demonstrating or testing, irregardless that a particular flight was not a demonstration or test flight. If anything, this would enhance the opportunity for conspiracies to fraudulently acquire insurance monies between aircraft owners or operators and guests.
The potentiality for such fraud is no better exemplified than in the circumstances of this case. Defendant Noordyk was flying to Muskegon to pick up a sign for his business, and he invited Longnecker, his neighbor, to accompany him. Plaintiff testified that he went on the ride because he thought he would enjoy it, that he had no interest in buying the plane, and that he paid Noordyk nothing for the flight. Now were we to accept plaintiffs’ analysis as to when application of the guest classification is required, plaintiff William Longnecker would not be a guest, since admittedly defendants are in the business of demonstrating aircraft as part of the aircraft-dealership operation. Yet certainly this factual situation presents a situation ripe for illicit collusion between Noordyk and the injured plaintiff, who would normally be called a "guest”. Our interpretation denies opportunity for such collusion, since we find that the aircraft was not being demonstrated or tested on the particular flight in question, and therefore the injured plaintiff was a guest under the terms of the statute. Thus, the primary policy behind the aircraft guest-passenger statute is buttressed by our analysis.
Plaintiffs argue also that since Noordyk-Mooney, Inc., declared that its purchase of the aircraft used here was exempt from sales tax, and since it paid no use tax when the aircraft was flown, the only permissible use which the company could have made of the aircraft was for demonstration or display. MCLA 205.51(1)(b); MSA 7.521(1)(b); MCLA 205.93; MSA 7.555(3); Administrative Code 1954, R 205.9; 1964-1965 AACS, R 205.62: While we have doubts that plaintiffs’ analysis of the tax regulations is correct, we need not reach that issue. Even if defendant Noordyk-Mooney, Inc., was somehow avoiding the payment of its legal tax burden, the tax regulations do not control the classification of aircraft passengers as guests or otherwise.
Affirmed, costs to defendants.
All concurred.
The relevant section reads:
"The owner or operator or the person or organization responsible for the maintenance or use of an aircraft shall be liable for any injury occasioned by the negligent operation of the aircraft, whether the negligence consists of a violation of the provisions of the statutes of the state, or in the failure to observe ordinary care in the operation, as the rules of the common law require. No person transported by the owner or operator or the person.responsible for the maintenance or use of any aircraft as a guest without payment for such transportation shall have a cause of action for damages against the owner or operator or person responsible for the maintenance or use of the aircraft for injury, death or loss, in case of accident, unless the accident shall have been caused by the gross negligence or wilful and wanton misconduct of the owner or operator or the person responsible for the maintenance or use of the aircraft, and unless the gross negligence or wilful and wanton misconduct of the owner or operator or the person responsible for the maintenance or use of the aircraft contributed to the injury, death or loss for which the action is brought.” MCLA 259.180a(l); MSA 10.280(11®. | [
88,
-8,
7,
54,
51,
-20,
10,
-13,
3,
21,
-20,
-17,
32,
-40,
13,
1,
44,
20,
2,
-20,
-14,
-25,
5,
21,
-19,
-12,
35,
17,
5,
13,
23,
-25,
52,
-39,
-1,
12,
38,
30,
-35,
41,
19,
12,
32,
-90,
5,
-12,
79,
1,
46,
23,
48,
-35,
1,
-37,
-58,
-40,
17,
-23,
-22,
5,
-44,
2,
-7,
-49,
14,
-20,
-17,
46,
-23,
-23,
-28,
59,
5,
9,
-7,
-27,
30,
76,
-35,
52,
3,
21,
-4,
-69,
-44,
14,
-20,
-26,
-15,
-31,
-58,
-27,
-30,
-94,
-41,
34,
-22,
-25,
0,
-23,
14,
-15,
15,
-8,
-71,
27,
-16,
-34,
42,
-31,
-9,
6,
-23,
-36,
0,
-32,
-29,
57,
-56,
11,
-34,
-9,
60,
20,
-24,
-31,
30,
-20,
-46,
6,
82,
10,
-13,
25,
25,
38,
-3,
-9,
7,
-23,
21,
65,
41,
57,
24,
26,
3,
21,
-8,
-36,
-1,
-23,
-5,
7,
27,
-8,
0,
15,
40,
-15,
-40,
0,
3,
-12,
18,
-36,
16,
14,
-1,
-22,
10,
34,
28,
18,
35,
-3,
18,
-14,
-39,
-22,
-37,
29,
-18,
-28,
-37,
-45,
6,
0,
-71,
-13,
38,
-69,
-14,
-3,
-14,
74,
-21,
39,
13,
1,
22,
-54,
-33,
18,
53,
-9,
-2,
8,
28,
6,
-14,
-10,
8,
-25,
-9,
-24,
-11,
15,
-2,
16,
-4,
-18,
27,
14,
-52,
-14,
-48,
-17,
-34,
-5,
3,
-20,
4,
13,
-79,
-50,
-34,
-47,
92,
13,
0,
-29,
-8,
-17,
17,
-33,
-4,
-16,
-4,
-12,
59,
25,
-3,
6,
-33,
9,
-13,
-31,
-25,
15,
-43,
-12,
-8,
-7,
-34,
19,
-22,
-7,
-27,
-23,
-8,
1,
15,
17,
-24,
-56,
-20,
15,
64,
-31,
50,
34,
4,
5,
-47,
28,
3,
16,
-5,
-3,
44,
-30,
1,
-8,
55,
52,
44,
26,
15,
21,
35,
0,
13,
43,
23,
-35,
-20,
12,
9,
16,
-57,
-45,
11,
-29,
-5,
13,
-18,
7,
30,
-61,
-30,
19,
3,
4,
36,
1,
3,
-46,
36,
-31,
16,
-37,
-28,
9,
42,
-35,
29,
-21,
-21,
22,
-18,
4,
17,
18,
-11,
57,
-54,
-2,
-12,
-44,
-7,
2,
38,
-4,
15,
-36,
-14,
-35,
-38,
0,
0,
-41,
-59,
-3,
34,
-31,
6,
36,
-1,
-4,
-4,
-20,
-2,
-21,
-21,
-43,
-7,
0,
-26,
74,
-35,
22,
27,
-79,
-68,
-31,
-64,
-39,
1,
27,
-8,
-56,
13,
25,
12,
51,
-1,
35,
11,
2,
-19,
22,
-5,
-45,
0,
-16,
-3,
3,
-28,
-12,
-34,
33,
36,
10,
17,
50,
43,
-3,
6,
-39,
15,
-5,
-20,
-38,
57,
-45,
-14,
38,
15,
-28,
-4,
8,
2,
-30,
-11,
-53,
-29,
1,
59,
14,
5,
-15,
-79,
-28,
-12,
4,
1,
38,
0,
-45,
60,
-35,
20,
-7,
19,
3,
24,
3,
-3,
-18,
8,
12,
32,
-3,
69,
-15,
20,
-21,
54,
-9,
-1,
-2,
14,
70,
-29,
-11,
-15,
45,
-35,
-4,
-49,
13,
5,
-51,
-7,
-47,
-11,
56,
27,
6,
4,
46,
-24,
-19,
-45,
-25,
-13,
25,
-42,
14,
-1,
4,
23,
27,
21,
-60,
-49,
-13,
17,
16,
-7,
27,
3,
48,
-40,
0,
-12,
1,
26,
3,
-21,
-4,
-30,
-1,
-23,
-33,
-2,
-1,
22,
-15,
9,
-21,
26,
-41,
32,
8,
-16,
-53,
24,
-32,
24,
18,
8,
-31,
50,
3,
21,
-19,
12,
1,
18,
27,
28,
-26,
33,
-32,
-11,
64,
-19,
57,
6,
0,
14,
-8,
43,
17,
-50,
28,
58,
-25,
4,
38,
15,
7,
7,
19,
38,
48,
-67,
56,
6,
15,
26,
-33,
-48,
-62,
-16,
72,
23,
-54,
-29,
-15,
20,
22,
59,
1,
40,
-33,
-31,
-4,
-34,
-4,
-50,
18,
22,
11,
-56,
33,
67,
-9,
-2,
15,
-49,
1,
-24,
-22,
8,
4,
25,
-21,
-1,
-2,
0,
38,
-35,
31,
-44,
15,
22,
-84,
-41,
-62,
-83,
-53,
-4,
-32,
27,
8,
-30,
21,
13,
-23,
20,
-18,
-4,
3,
0,
44,
-52,
-12,
-12,
45,
47,
7,
15,
18,
-45,
10,
-29,
13,
-48,
4,
-1,
18,
11,
-17,
-3,
-44,
-8,
-22,
54,
-15,
3,
63,
70,
42,
-8,
25,
-20,
-16,
0,
-29,
94,
-66,
36,
81,
-41,
-29,
54,
-53,
-37,
30,
32,
-21,
36,
-17,
-31,
-19,
-34,
-2,
-13,
-19,
-53,
46,
-20,
-3,
-3,
-10,
25,
20,
-21,
57,
15,
7,
51,
16,
-20,
0,
-41,
6,
-19,
22,
6,
-64,
7,
4,
12,
-13,
7,
-6,
22,
-6,
-1,
-43,
-8,
19,
12,
-17,
74,
-34,
4,
33,
15,
58,
0,
-11,
19,
24,
71,
-45,
-28,
54,
20,
10,
-60,
18,
-2,
33,
-50,
-34,
3,
-12,
-33,
-15,
-15,
1,
-13,
9,
29,
-48,
-12,
14,
14,
-25,
-33,
-37,
-2,
22,
-24,
14,
57,
14,
-14,
8,
-18,
6,
-40,
22,
34,
-21,
28,
-4,
19,
8,
12,
-40,
-15,
37,
27,
11,
4,
0,
-11,
65,
-8,
-26,
41,
-3,
-12,
-5,
18,
2,
-23,
-48,
2,
36,
42,
-31,
-54,
1,
66,
56,
-62,
-35,
64,
-33,
0,
17,
-28,
-30,
-7,
-48,
-7,
25,
32,
-32,
14,
-39,
24,
-33,
73,
41,
-31,
38,
-14,
15,
2,
-28,
-13,
-30,
14,
24,
-14,
-2,
7,
-56,
-55,
28,
-17,
37,
-63,
-31,
-36,
4,
-27,
30,
9,
46,
37,
25,
46,
55,
17,
33,
3,
-23,
-10,
0,
-20,
12,
-9,
19,
-19,
11,
41,
41,
-24,
-40,
5,
-10,
37,
29,
-1,
3,
-14,
16,
27,
53,
59,
-26,
-39,
36,
3,
63,
-3,
-22,
0,
-41,
-88,
38,
5,
28,
-1,
-1,
6,
70,
4,
48,
-7,
1,
-32,
-9,
33,
1,
-19,
4,
15,
8,
18,
18,
-38,
-74,
3,
-36,
29,
10,
-11,
6,
0,
-25,
5,
2,
38,
57,
-19,
3,
-24,
11,
-21,
-22,
9,
48,
-47,
58,
-31,
24,
-30,
21,
2,
5,
-48,
25,
26,
26,
20,
26,
-28,
-17,
-14,
-8,
30,
0,
31,
-17,
-8,
3,
2,
29,
-23,
49,
10,
-32,
-14,
19,
-25,
-18,
-38,
-8,
-50,
44,
-46,
11,
-35,
12,
41,
-8,
-2,
-41,
-34,
-13,
30,
-4,
4,
-3,
1,
11,
16,
-8,
-4,
42,
4,
-6,
-22,
-4,
-27,
37,
-27,
-28,
-62,
0,
36,
-4,
15,
-52
] |
R. B. Burns, J.
On July 8, 1970, a dairy in Detroit was robbed and the manager was killed. Defendant and two others were charged with felony murder. MCLA 750.316; MSA 28.548. Defendant’s two accomplices pleaded guilty to second-degree murder. Defendant demanded a jury trial and was tried on a charge of felony murder. The jury found defendant guilty of second-degree murder. MCLA 750.317; MSA 28.549.
Defendant admitted walking to the dairy in the company of Donnice McCullum and Cedric Graddy and entering the dairy accompanied by McCullum; Graddy waited outside. Defendant also admitted emptying the cash register. However, defendant claimed that he was unaware that either of his companions were armed or that either intended to rob the dairy. Defendant claimed that he went to the dairy merely to purchase a carton of milk and that he took money from the cash register only because McCullum pointed a gun at him and ordered him to do so. The prosecution disputed the defense of coercion.
Defendant asserts that three errors were committed below:
First, the trial court erroneously determined that defendant had waived his right to the assistance of counsel during custodial interrogation.
Second, the trial court’s instructions to the jury in effect excluded from the jury’s consideration defendant’s claim of coercion.
Third, the jury should not have been instructed as to second-degree murder, even though the instruction was given at defense counsel’s request. Defendant further claims if it was proper to instruct the jury as to second-degree murder it was error for the trial court to refuse to instruct them as to manslaughter.
I
Defendant voluntarily surrendered to the police in the late afternoon of July 18, 1970. The following morning he was interrogated for the first time. Immediately prior thereto, defendant was handed a "Constitutional Rights Certificate of Notification” regularly used by the Detroit Police Department. After defendant had read the certificate and had had it read to him, he signed the certificate. Defendant then made a statement. The statement was transcribed by a police officer and signed by defendant. Subsequent to a Walker hearing, the statement was admitted into evidence over defendant’s objection.
Defendant claims that merely signing the certificate did not constitute the type of waiver required by the Miranda decision. We disagree. This issue has been fully discussed in People v Matthews, 22 Mich App 619 (1970), leave den, 384 Mich 754 (1970).
II
Defendant claims that the trial court, in effect, directed a verdict of guilty when it told the jury that "in this case there has been no claim of excuse or justification — no evidence of excuse or justification”.
Jury instructions must be read in their entirety. People v Dye, 356 Mich 271, 279 (1959).
The statement to which defendant objects referred to the killing, not to the robbery. Had the jury been given only a perfunctory instruction as to the defense of coercion, the challenged instruction might have confused the jury. However, the jury was instructed at length as to the defense of coercion and they were meticulously led by the trial court through the reasoning necessary for a thorough evaluation of that defense.
m
Recently, a panel of this Court held that hence forward "in a prosecution for felony murder * * * the trial judge is obliged to instruct the jury that its verdict shall be guilty of murder in the first degree or not guilty”. People v Bufkin, 43 Mich App 585 (1972). We disagree that such is the law of Michigan or even a wise rule. There have been cases in which what appeared to have been a felony murder was less. A rigid rule, such as that announced in Bufkin, may allow an individual guilty of second-degree murder or manslaughter to escape conviction, or may tempt a jury to convict a man of a more serious crime rather than acquit him or properly return a verdict of guilty of homicide of a lesser degree than first-degree murder.
The murder statute, MCLA 750.316; MSA 28.548, provides in pertinent part:
"All murder * * * which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery, burglary, larceny of any kind, extortion or kidnapping, shall be murder of the first degree.” (Emphasis supplied.)
It is clear from the statute that in order to convict a defendant on a charge of felony murder, the prosecution must establish: (1) a homicide (killing of a human being by a human being, which may or may not be felonious, People v Austin, 221 Mich 635, 644 [1923]); (2) that the homicide is muj-der (an unlawful homicide committed with malice aforethought, express or implied, People v Potter, 5 Mich 1, 6 [1858]); and (3) that the murder occurred in the perpetration or attempt to perpetrate one of the enumerated felonies. Thus, more must be shown than that one of the named felonies occurred, during the course of which a human being died. Even if a manslaugh ter should occur during the perpetration, or attempt to perpetrate one of the felonies specified by the statute, there would be no felony murder. It is essential to show that there was in fact a murder. Once that has been proven beyond a reasonable doubt, the statute in essence simply frees the prosecution from the burden of showing premeditation, deliberation, and wilfulness.
In People v Carter, 387 Mich 397, 422-423 (1972), a jury determined that defendants’ theft of an automobile was the proximate cause of the deceased’s fatal heart attack. The Supreme Court reversed because, under the peculiar facts of the case, a verdict of manslaughter would have been appropriate and the trial court should have so instructed the jury. The Court stated:
"In a criminal case, if there is a request to charge as to a lesser included offense, but there is no evidence of such a lesser included offense, or the facts are such that the court or the jury would be obliged to conclude that the defendant was guilty of the offense charged or not guilty, no charge as to a lesser included offense need be given.
"But if the evidence is subject to different interpretations that would justify a finding of a lesser offense, a charge as to such lesser offense, especially if one is requested, should be given.” (Emphasis supplied.)
In People v Andrus, 331 Mich 535 (1951), defendants were convicted of manslaughter. The deceased had died as a result of a beating inflicted during a robbery of his store. Ordinarily, such a death would be a felony murder. However, because of the peculiar circumstances of the case, the Supreme Court agreed with the trial court that an instruction as to manslaughter was appropriate.
In People v Treichel, 229 Mich 303 (1924), the deceased was tied to his bed while his home was burglarized. His restraints were the proximate cause of his death. The Supreme Court held that the evidence justified a conviction of manslaughter, as well as a conviction of murder in the first degree. Accordingly, defendants’ convictions of manslaughter were affirmed.
In People v Austin, 221 Mich 635 (1923), defendants were charged with murder by poison. Although statute made murder by poison murder in the first degree, the Court held that, in that particular case, the jury also should have been instructed as to manslaughter.
The panel of this Court which decided the Bufkin case relied upon People v Dupuis, 371 Mich 395 (1963), as authority for the rule they adopted. We believe that such reliance was misplaced. The Dupuis decision does now appear to us to conflict with the Treichel line of cases. In the Dupuis case our Supreme Court held only that when a defendant is charged with violating MCLA 750.316, supra, when the evidence supports a finding of a felony murder and no lesser offense, and when the jury is instructed only as to felony murder, a finding of "guilty as charged” is a proper verdict and should be interpreted as a conviction of murder in the first degree. The Court did not hold that instructions as to, and conviction of, lesser offenses are always improper when the charge is felony murder. Furthermore, to the extent that there is any conflict between Dupuis and Treichel, we note that People v Carter, supra, was decided after Dupuis.
An attempt has been made to distinguish the Treichel decision from cases such as the instant one, on the ground that in Treichel the defendants were charged with common-law murder, not with felony murder. People v Collins, 380 Mich 131, 145 (1968) (dissenting opinion per T. M. Kavanagh, J.). We do not think that such a distinction is significant. In Treichel the prosecution presented the case on the theory of felony murder only.
We think it the law and the better rule that instructions be molded to the particular facts of each case. When there is no evidence of any crime less than felony murder, the jury must be limited to two possible verdicts: guilty of first-degree murder, or not guilty. However, when the evidence will admit of a lesser offense, justice requires that the trial court be at liberty to so instruct the jury. See People v Carter, supra, 422-423, fns 3, 4.
In this case there is no evidence to support a verdict of guilty of second-degree murder or manslaughter. Defendant conceded that the deceased was killed during the perpetration of an armed robbery. He claimed only that he was not a voluntary participant in that robbery. Accordingly, the court should not have instructed the jury as to second-degree murder. People v Repke, 103 Mich 459 (1895). If the court had instructed as to manslaughter, it would only have compounded its error.
At trial the prosecution called defendant’s accomplices to the stand. Each admitted having pleaded guilty to second-degree murder, and each refused to answer any questions. Not only did defendant’s counsel not object to placing the accomplices on the stand, he welcomed their limited testimony. Although defense counsel presented ho written proposed instructions, he orally requested an instruction as to second-degree murder. It is obvious to us that defense counsel hoped the jury, out of a sense of fairness, would not convict defendant of a more serious crime than that of which the triggerman had been convicted. Ordi narily, a defendant is bound to counsel’s trial strategy. However, since a trial court may not, under any circumstances, mislead a jury as to the applicable law, People v Liggett, 378 Mich 706, 714-715 (1967), we feel obliged to consider the consequences of the erroneous instruction.
Although it was error for the trial court to instruct the jury as to second-degree murder, defendant has not suffered. If there has been a miscarriage of justice, it has been suffered by the people of the State of Michigan.
In People v Miller, 96 Mich 119 (1893), the evidence produced by the prosecution, if believed by the jury, proved defendant’s guilt of rape, and only rape. The jury convicted defendant of assault with intent to rape. The Supreme Court categorized such a conviction as illogical, but affirmed the conviction because it was to the advantage of defendant. See also People v Martin, 208 Mich 109 (1919); People v Hoover, 243 Mich 534 (1928); People v Miller, 28 Mich App 161 (1970).
In the instant case the jury was emphatically instructed to acquit defendant unless convinced beyond a reasonable doubt that he was a voluntary participant in the armed robbery which resulted in the deceased’s death. Because the jury did not acquit defendant, we must conclude that the jury was convinced beyond a reasonable doubt that defendant was a voluntary participant in the robbery. Thus, defendant should have been convicted of murder in the first degree. However, the jury decided to exercise compassion, undoubtedly because defendant’s accomplices had been allowed to plead guilty to second-degree murder. Defendant can claim no prejudice.
Affirmed.
All concurred. | [
23,
4,
35,
1,
-51,
-23,
17,
-6,
-54,
56,
-4,
27,
6,
0,
0,
29,
7,
-10,
7,
-41,
46,
-40,
-52,
13,
-51,
-30,
-10,
5,
-34,
40,
-19,
45,
39,
-73,
23,
-3,
24,
-5,
7,
70,
-2,
-1,
22,
-13,
-28,
-23,
7,
-23,
34,
-28,
21,
13,
19,
-4,
-30,
-4,
-13,
-5,
5,
3,
10,
4,
-12,
-27,
-34,
-29,
-8,
20,
-26,
-15,
0,
-32,
-28,
-30,
4,
-20,
-5,
12,
24,
-18,
15,
-4,
52,
-45,
3,
-34,
24,
-23,
55,
-26,
26,
18,
-55,
-43,
27,
-7,
1,
6,
9,
-23,
-22,
-22,
-2,
36,
-25,
34,
-28,
-28,
0,
20,
-5,
13,
57,
-13,
-28,
6,
14,
26,
-44,
39,
24,
-11,
5,
-3,
-7,
-12,
10,
2,
33,
23,
7,
18,
3,
-5,
-4,
12,
0,
28,
12,
35,
-31,
81,
-7,
-4,
38,
4,
-75,
44,
-16,
32,
-36,
36,
19,
-25,
7,
3,
39,
-42,
-74,
14,
-2,
-33,
10,
16,
-2,
-8,
-19,
-12,
-49,
-63,
-6,
-38,
36,
-27,
63,
-14,
-16,
13,
-3,
-20,
-6,
-19,
-2,
-20,
25,
13,
-29,
-12,
-12,
1,
-33,
7,
-30,
7,
44,
41,
7,
31,
17,
21,
31,
-4,
9,
-32,
-27,
-40,
60,
-4,
8,
0,
-45,
2,
-12,
-23,
2,
-10,
-13,
-13,
-26,
-16,
-70,
-24,
1,
16,
-10,
-43,
-19,
16,
-99,
28,
35,
-9,
-10,
42,
1,
-49,
57,
-34,
35,
27,
-25,
-34,
18,
18,
93,
16,
4,
-44,
22,
-16,
27,
-1,
-1,
0,
-25,
10,
-17,
-23,
18,
32,
0,
16,
-3,
31,
-54,
21,
-46,
12,
-48,
8,
4,
-32,
-4,
39,
7,
-20,
-26,
65,
-20,
-12,
6,
-14,
-36,
23,
24,
4,
-57,
18,
-12,
24,
37,
-8,
-22,
-10,
23,
19,
8,
-34,
-30,
14,
31,
27,
-9,
-35,
-23,
5,
17,
-31,
-23,
0,
53,
14,
16,
11,
36,
4,
36,
-4,
55,
-31,
-17,
-7,
17,
-12,
-31,
-25,
-10,
-57,
13,
-17,
-15,
37,
3,
8,
-34,
2,
2,
-7,
0,
4,
-16,
-19,
-17,
-6,
-10,
21,
-30,
95,
-95,
-48,
7,
-16,
12,
-7,
43,
-34,
-24,
-5,
25,
-27,
33,
-56,
-77,
48,
7,
31,
0,
-32,
4,
62,
2,
-19,
-53,
18,
-46,
-13,
59,
-27,
-25,
28,
-39,
-32,
11,
-30,
7,
25,
-2,
-50,
-11,
59,
-33,
-41,
-28,
-12,
27,
-5,
-6,
-5,
66,
15,
-19,
36,
45,
-3,
-28,
-14,
-26,
14,
-20,
-26,
-17,
41,
38,
33,
-35,
-49,
28,
-59,
13,
-21,
-32,
-34,
45,
0,
30,
-32,
-2,
34,
-23,
-33,
42,
27,
0,
-45,
3,
-10,
-32,
-20,
23,
5,
-32,
-39,
-38,
-15,
30,
0,
-92,
-20,
15,
-17,
42,
-1,
-16,
-14,
-23,
45,
-3,
21,
31,
-32,
-9,
-8,
-35,
-34,
33,
9,
-39,
-32,
47,
17,
0,
-9,
10,
28,
-59,
0,
-15,
55,
5,
24,
33,
49,
-7,
-22,
-29,
-32,
-5,
-59,
23,
15,
44,
20,
23,
67,
-8,
49,
13,
5,
-13,
0,
0,
-25,
1,
29,
54,
7,
26,
-28,
11,
21,
-13,
62,
-34,
1,
5,
-23,
-8,
-15,
14,
14,
34,
-3,
-23,
9,
-14,
-6,
-4,
19,
-36,
-24,
70,
25,
0,
-24,
45,
27,
-8,
-16,
-9,
-28,
24,
13,
48,
4,
0,
-4,
12,
-1,
12,
14,
37,
-10,
-10,
-49,
-4,
0,
14,
34,
-26,
16,
-18,
9,
80,
35,
4,
-32,
17,
13,
72,
-9,
-36,
43,
-13,
-1,
-13,
17,
1,
-4,
-23,
47,
67,
25,
18,
11,
-12,
46,
33,
-7,
-5,
7,
-58,
33,
7,
-15,
15,
-11,
-45,
-30,
22,
18,
52,
27,
-42,
48,
38,
-58,
-11,
-19,
6,
-69,
-2,
12,
16,
-10,
-6,
-8,
2,
-10,
-41,
63,
-38,
-26,
-17,
-1,
-37,
-24,
10,
-42,
30,
8,
10,
7,
-23,
-5,
-19,
-3,
31,
17,
-36,
-52,
-44,
53,
-5,
14,
32,
-11,
-27,
22,
12,
-53,
-61,
8,
34,
-15,
26,
-19,
10,
23,
30,
-12,
40,
45,
-68,
-21,
4,
8,
8,
-42,
15,
22,
27,
-5,
0,
-13,
25,
53,
-1,
-11,
0,
58,
-8,
-13,
1,
7,
60,
16,
5,
-12,
-30,
-5,
-60,
39,
64,
-42,
27,
-41,
45,
50,
-38,
-18,
35,
6,
-15,
-9,
14,
14,
-9,
-33,
1,
-22,
-14,
46,
-32,
12,
-7,
-4,
-57,
0,
12,
45,
-48,
-1,
43,
-7,
12,
-5,
-1,
23,
32,
-12,
19,
-5,
25,
16,
55,
27,
-41,
11,
-19,
20,
-48,
23,
-27,
-12,
-34,
-58,
2,
-46,
8,
-27,
8,
18,
-2,
43,
-12,
24,
46,
-12,
-43,
6,
-17,
33,
4,
-36,
-47,
25,
8,
-9,
76,
14,
-29,
-16,
-31,
6,
-12,
10,
15,
-15,
1,
-13,
10,
1,
5,
-51,
12,
-17,
-9,
3,
-36,
11,
14,
16,
10,
41,
9,
20,
53,
9,
-3,
12,
4,
-39,
6,
1,
12,
-27,
2,
1,
-25,
6,
52,
28,
-16,
-1,
10,
9,
2,
-53,
-7,
14,
25,
5,
25,
-58,
-20,
-3,
6,
-19,
-53,
-33,
-35,
33,
19,
28,
-8,
-19,
14,
0,
16,
25,
16,
-15,
35,
42,
21,
17,
42,
-21,
25,
12,
6,
5,
-4,
-55,
-5,
-27,
-33,
35,
-44,
12,
4,
8,
-60,
-12,
-21,
9,
-12,
-22,
1,
2,
-9,
14,
37,
44,
19,
36,
-39,
16,
-41,
9,
-9,
-36,
63,
3,
39,
-4,
-22,
-30,
-47,
-13,
-9,
51,
-58,
17,
-14,
-33,
-14,
-10,
51,
-77,
19,
-1,
-28,
-3,
34,
1,
37,
10,
15,
37,
-11,
-22,
7,
18,
4,
9,
-69,
17,
40,
-53,
-21,
20,
14,
30,
14,
-21,
-44,
22,
5,
26,
-31,
6,
32,
-59,
-25,
33,
16,
-71,
21,
-19,
-2,
8,
-32,
1,
-11,
4,
-25,
-14,
-28,
16,
-35,
-34,
-19,
-7,
13,
4,
-31,
-3,
-12,
28,
-70,
28,
-8,
17,
44,
13,
17,
-25,
2,
1,
48,
-15,
-9,
-4,
20,
-6,
0,
32,
-6,
-25,
-3,
-33,
-6,
0,
30,
8,
38,
-18,
-43,
-33,
1,
65,
-20,
42,
-30,
32,
20,
0,
-37,
-30,
-41,
27,
16,
15,
-49,
-3,
26,
-12,
10,
13,
-41,
-33,
12,
-16,
-24,
23,
-16,
26,
-51,
-21,
-61,
56,
-23,
64
] |
O’Hara, J.
This is an employment-security-benefit case before us on an appeal of right from an order of the circuit court affirming a determination of the appeal board of the commission.
We are told by the parties that the question of moment to our jurisprudence is the effect of an employee’s violation of a "shop rule” as it relates to disqualifying misconduct under the Employment Security Act. (MCLA 421.1 et seq.; MSA 17.501 et seq.) "Shop rules” in this case, as in the case of most employers of any substantial number of employees, are hammered out on the forge of collective bargaining. Thus they become what our Supreme Court has characterized as part of a "contract”, and the case law generally refers to "shop-rule” violations as "violations of contract”. Certainly this question is not new to our case law. It has been written to, discussed, analyzed, re-analyzed, distinguished, delineated, repudiated, and reinstated. To reexamine the authority here in a Texas-size anthology might intrigue a legal lexicographer but it would tax a busy intermediate appellate court far beyond any helpful decisional limits. We will strive to capsulize.
Plaintiff-appellant says the present Employment Security Commission Appeal Board has retreated to an antediluvian position by holding that any violation of contract is ipso facto disqualifying misconduct under the act. This contention was ably articulated by an assistant general counsel for one of Michigan’s largest unions appearing as appellant’s counsel. Counsel further argues that the decision here will be of grave consequence to all employees working under labor contracts.
The employer-appellee, by equally able counsel, says a foreman issued a valid order, disobedience of which violated a shop rule that had been incorporated into a labor contract, and that the violation was by any test statutorily disqualifying conduct.
The Employment Security Commission, also a defendant-appellee, by its able assigned assistant attorney general, takes the same position as the employer.
It would profit nothing to write to the issue as above framed and orally argued. Whatever we were to write would become purely dictum. Although the appeal board made the finding that appellant was discharged on August 26, 1969, this finding was directly contradictory to testimony of the employer-representative that on August 22, 1969, appellant "was released” as a voluntary quit. That same representative testified that on August 25, 1969, "[w]e reinstated Mr. Hoffman without back pay”. After this reinstatement the appellant was ordered to report to work, and we quote the appeal board opinion, "either August 25, 1969, or at the latest, on the morning of August 26, 1969”.
On August 26, 1969, the employee notified the employer that he could not report to work because he "had” to appear at the NLRB. (Emphasis supplied.) Upon this failure to report he was, in the words of the employer-representative who testified at the referee hearing without contradiction, "cleared out as a voluntary quit”. No further testimony was taken before the appeal board.
The board had, of course, the unquestioned right to make binding findings of fact, when supported by competent, material, and substantial evidence. When so made they are invulnerable to judicial meddling. The board, however, does not have the authority to find that an employee was discharged for misconduct when the uncontradicted testimony is that he was cleared as a "voluntary quit”. A reviewing court is not bound by such finding of fact.
Therefore, we cannot answer the question of whether the conduct of this employee was disqualifying misconduct justifying discharge and forfeiture of benefits, for the very simple reason that the plaintiff-appellant was not discharged.
So the question becomes whether his voluntary leaving was with good cause attributable to the employer. It was. We cannot hold as a matter of law that where, as here, the record is uncontradicted that on the date the employee was released as a voluntary quit he had to appear at the NLRB, his termination was disqualifying.
Hence, this opinion regretably settles nothing except that where the records show an employee "has” to be at the NLRB, and he notifies his employer of this fact, and he is released as a voluntary quit, his separation is not disqualifying. We suspect there will be precious few cases which will fall into this identical category.
We have read this whole record with particular care. From it we gain the general impression that appellant may well have been a burr under the managerial saddle, possibly even the union’s. The outcome of the grievance proceeding held pursuant to the labor contract seems to us to have been eminently fair. The union and management agreed that appellant had to wear his issued safety glasses unless he chose to obtain prescription lenses. In that event he would be reimbursed to the extent provided for by the contract. The matter would better have ended there.. It did not. We become faced with an unequivocal record. It said what it said. We cannot go behind it. We cannot let an unappealing case make bad precedential law.
Of necessity we reverse the circuit court and the appeal board and reinstate the decision of the referee holding appellant was not disqualified.
No costs, a public question.
All concurred.
The National Labor Relations Board. | [
9,
-55,
-4,
35,
34,
0,
-16,
-62,
11,
48,
4,
41,
8,
-36,
52,
-41,
46,
48,
-62,
51,
37,
-41,
-44,
21,
-8,
-26,
39,
3,
-20,
61,
-37,
33,
2,
-12,
-12,
-12,
42,
-8,
2,
-11,
-5,
33,
-17,
-68,
-1,
5,
27,
3,
45,
-31,
-8,
78,
-39,
19,
16,
-8,
15,
2,
21,
29,
-5,
35,
60,
20,
29,
-44,
6,
34,
-24,
6,
-31,
2,
-31,
-33,
-45,
-7,
14,
54,
-13,
-31,
16,
-40,
42,
-31,
-11,
51,
38,
32,
-14,
-8,
-9,
13,
-14,
-25,
-14,
20,
-2,
0,
-3,
-6,
-41,
-14,
-1,
19,
-34,
0,
27,
7,
-28,
21,
4,
26,
3,
0,
-17,
6,
33,
6,
-9,
-23,
42,
53,
26,
23,
-2,
-31,
25,
0,
-28,
39,
-8,
39,
7,
-19,
-3,
21,
34,
16,
54,
7,
-9,
52,
-1,
-47,
16,
-1,
9,
25,
-41,
-65,
17,
-42,
32,
-25,
-28,
17,
-2,
-29,
-34,
0,
12,
-1,
-10,
22,
-43,
-4,
-20,
16,
-4,
-4,
-9,
-22,
-23,
-40,
22,
-32,
32,
45,
-13,
49,
-35,
0,
-42,
-35,
22,
-4,
-40,
-40,
6,
2,
-9,
-22,
24,
2,
21,
18,
-16,
64,
-5,
-18,
-7,
-11,
6,
4,
-13,
24,
-2,
10,
-52,
12,
-10,
19,
-8,
-48,
-44,
6,
10,
29,
-37,
-3,
-44,
-20,
-88,
0,
-8,
-81,
9,
3,
36,
-24,
-14,
26,
82,
-12,
6,
-9,
-14,
-16,
101,
35,
-4,
-32,
-35,
-15,
-45,
-30,
-5,
-27,
80,
43,
32,
32,
54,
21,
-29,
-23,
-36,
35,
-44,
1,
0,
66,
17,
-13,
-38,
-14,
-5,
23,
-34,
-60,
-28,
12,
11,
14,
1,
4,
13,
16,
15,
-17,
-40,
46,
-38,
14,
-48,
-18,
20,
4,
-7,
-10,
55,
-34,
-39,
7,
40,
-5,
1,
-5,
14,
-6,
-25,
-26,
11,
-39,
-23,
28,
-57,
-43,
28,
-33,
-17,
-67,
-4,
-13,
-9,
-30,
-40,
-7,
6,
-20,
-34,
-14,
39,
5,
-1,
-79,
25,
-33,
17,
-71,
42,
-13,
-19,
24,
16,
-12,
9,
6,
7,
25,
21,
2,
28,
-36,
-15,
0,
-3,
8,
4,
-29,
40,
4,
-6,
-6,
28,
62,
26,
-4,
-41,
-25,
17,
-9,
-19,
-7,
-20,
74,
-41,
-15,
29,
-11,
40,
-16,
45,
5,
-48,
-22,
-17,
-52,
-7,
33,
-6,
1,
24,
-48,
-36,
-20,
-6,
12,
-23,
12,
-77,
-23,
14,
4,
-21,
20,
66,
13,
3,
0,
-8,
-17,
14,
-25,
-1,
-32,
-1,
-61,
-28,
-5,
-24,
16,
20,
19,
-2,
-25,
31,
-2,
-6,
-29,
38,
-19,
29,
-3,
1,
-44,
-13,
55,
-29,
27,
-39,
-62,
13,
-40,
-47,
-9,
-21,
-27,
12,
-13,
-40,
-9,
-66,
-5,
22,
18,
-18,
24,
6,
-55,
38,
6,
8,
30,
-43,
-11,
0,
19,
-12,
-29,
6,
-6,
-1,
2,
62,
-14,
-41,
-4,
44,
23,
-54,
-16,
51,
40,
17,
-32,
20,
10,
6,
-43,
38,
33,
33,
-10,
-60,
-15,
-12,
-33,
-27,
8,
34,
7,
-18,
-12,
9,
14,
5,
-9,
5,
68,
-12,
-35,
28,
-39,
5,
-29,
-11,
-46,
35,
-10,
-50,
-19,
46,
71,
26,
-16,
-24,
44,
49,
-5,
34,
-11,
-18,
-23,
42,
5,
-43,
4,
13,
-27,
23,
50,
65,
-30,
41,
20,
-5,
-10,
-16,
-64,
-23,
-1,
-2,
54,
5,
-30,
-17,
-3,
37,
23,
19,
-11,
8,
-42,
19,
11,
-30,
76,
43,
5,
-76,
3,
-4,
40,
-1,
26,
-46,
41,
74,
11,
0,
43,
-6,
-13,
44,
20,
39,
-7,
39,
-19,
34,
20,
6,
2,
-14,
-26,
-14,
21,
76,
-68,
15,
-67,
-1,
-27,
28,
11,
11,
35,
23,
58,
41,
-8,
-69,
10,
11,
-19,
-22,
23,
37,
-11,
23,
-24,
-39,
-76,
-44,
16,
0,
28,
30,
16,
-13,
24,
-16,
-14,
-15,
29,
28,
-5,
27,
-11,
10,
16,
2,
-17,
9,
-19,
15,
28,
-38,
0,
61,
17,
36,
14,
4,
9,
1,
24,
13,
3,
-10,
52,
42,
-25,
13,
-32,
-14,
19,
-30,
-56,
-19,
10,
-8,
50,
32,
3,
-48,
-28,
-4,
-36,
27,
22,
40,
25,
64,
11,
36,
-5,
-16,
-11,
-27,
-21,
-16,
10,
-31,
-13,
33,
-12,
-20,
-31,
22,
69,
4,
-56,
-26,
-36,
44,
-17,
1,
-54,
-35,
17,
10,
33,
11,
13,
-52,
-23,
23,
55,
-18,
-67,
-13,
16,
52,
27,
-53,
3,
-82,
-23,
-61,
26,
-2,
1,
36,
50,
8,
-42,
1,
-22,
-7,
24,
-41,
14,
-3,
10,
0,
-12,
-54,
20,
43,
21,
-1,
17,
0,
-5,
-2,
5,
17,
-25,
18,
-21,
15,
3,
-21,
30,
-15,
-5,
-82,
-10,
1,
19,
1,
34,
13,
3,
-69,
-38,
13,
-50,
7,
4,
9,
16,
-10,
15,
31,
-14,
-24,
5,
6,
-2,
6,
0,
5,
-14,
-39,
-38,
-15,
30,
-26,
-25,
-17,
-18,
0,
11,
21,
49,
-20,
-46,
-27,
-18,
0,
-13,
10,
-23,
9,
-35,
32,
-56,
37,
-13,
4,
-10,
-9,
21,
-23,
-1,
-16,
7,
18,
18,
-38,
-46,
14,
-53,
2,
-44,
-1,
18,
18,
36,
-18,
37,
18,
1,
-5,
-39,
45,
-21,
18,
18,
-21,
15,
38,
45,
0,
34,
33,
-14,
19,
-23,
-25,
16,
49,
25,
0,
-28,
39,
2,
-24,
4,
-48,
40,
0,
30,
-50,
-14,
34,
1,
-12,
-17,
83,
-14,
-48,
-4,
-28,
-30,
11,
25,
-3,
-29,
38,
-39,
48,
-4,
10,
-28,
-9,
30,
53,
15,
-3,
13,
-20,
-4,
-21,
5,
19,
-40,
46,
44,
2,
3,
-7,
56,
-14,
-16,
-33,
29,
-4,
1,
9,
11,
54,
38,
-46,
55,
31,
-27,
-24,
-21,
-17,
-33,
29,
-12,
-19,
-13,
-7,
-8,
8,
-10,
65,
11,
50,
-6,
18,
-18,
33,
-6,
-6,
-7,
-17,
2,
-47,
-24,
-65,
14,
9,
-15,
-30,
56,
-6,
42,
-27,
41,
-31,
-2,
-49,
-47,
-24,
11,
46,
1,
16,
-17,
56,
-48,
-27,
-48,
27,
-19,
-10,
-26,
7,
25,
-16,
21,
-8,
-19,
13,
9,
-49,
62,
14,
-4,
-17,
29,
-29,
-29,
31,
16,
50,
24,
-22,
-7,
-39,
15,
54,
39,
41,
-11,
-42,
-23,
-25,
27,
9,
-33,
-10,
2,
-10,
-10,
11,
57,
-24,
35,
-43,
-10,
-23,
-23,
20,
-1,
-36,
-1
] |
Per Curiam;.
Plaintiffs selected a contractor for the construction of a residence on their land in Oakland County and introduced the contractor to defendant supplier with whom they had had earlier discussions as to estimated material needs and costs. The contractor did deal with defendant in purchasing materials for construction of the house but did not fully pay defendant therefor.
Notice of intent to claim mechanic’s lien was timely served on plaintiffs and a statement of lien in proper form was timely recorded. The sole question as to the effectiveness of defendant’s attempt to obtain a valid mechanic’s lien under MCLA 570.1 et seq.; MSA 26.281 et seq., as amended, arises from the service of the statement of lien on plaintiff-owners by certified mail rather than by personal service.
MCLA 570.6; MSA 26.286 provides:
"Every person recording such statement or account as provided in the preceding section, except those persons contracting or dealing directly with the owner, part owner or lessee of such premises, shall within 10 days after the recording thereof, serve on the owner, part owner or lessee of such premises, if he can be found within the county or in case of his absence from the county, on his agent having charge of such premises, within the county wherein the property is situated, a copy of such statement or claim; * * * .”
Plaintiff-owners sued to have the claimed lien held invalid because of the lack of the allegedly necessary personal service of the statement of lien. Defendant contended that it had been "dealing directly” with plaintiffs, as within the exception to MCLA 570.6 and that personal service of the statement of lien was thus not required. Both parties moved for summary judgment, with supporting affidavits as to the facts of their relationship.
The defendant by affidavit alleged that plaintiff husband, on introducing his contractor to defendant’s vice-president promised personal responsibility for material charges, and further promised to see that defendant received payment for materials directly from his mortgage company; that plaintiff wife contacted defendant advising of the shaky financial condition of their contractor, seeking assurance that they would not be billed for any material sold to their contractor except such as went into their home and affirming their responsibility for such materials; that plaintiff husband acknowledged his wife’s call and affirmed their responsibility for such materials; that plaintiffs discussed with defendant their contractor’s .financial condition and proposed to pay $12,000 on account with defendant at that time and a remaining balance of $888.50 at a later date. Notwithstanding these claims, the trial judge concluded that there were no "direct dealings” between plaintiff-owners and defendant-materialman and granted summary judgment for plaintiffs. In this he erred.
The purpose of the notice requirement of MCLA 570.6 is to allow the owner an opportunity to withhold payment from his prime contractor for the protection of the lien claimant from the consequences of inadvertent payment to the impecunious contractor Mohawk Lumber & Supply Co v Petix, 349 Mich 323, 333-334 (1957). The exception to the requirement stems from knowledge in fact of the existence of such claims derived either from contractual liability between owner and lien claimant, or from direct dealings between them sufficient to give the owner the same knowledge of the existence of the claim or notice of facts that would put a prudent man on inquiry.
The existence of facts showing direct dealing and their sufficiency to fall within the statutory exception will depend upon the circumstances of a particular case. In Beck v Delta Recreation Corp, 2 Mich App 518 (1966), summary judgment was affirmed by a finding that the contacts there alleged did not, as a matter of law, amount to "direct dealing” within the meaning of the statutory exception. We hold as a matter of law that the affidavit-proffered facts asserted by defendant in this case would constitute direct dealing, if true. These facts and contrary facts asserted in affidavit by plaintiffs presented a factual issue to be re solved by trial and not by summary adjudication on motion.
Reversed.
MCLA 570.1; MSA 26.281.
MCLA 570.5; MSA 26.285.
1891 PA 179, as amended. | [
-14,
32,
-52,
20,
-19,
1,
-7,
33,
33,
17,
0,
-16,
20,
-10,
-26,
-19,
51,
12,
4,
-4,
5,
-31,
-3,
30,
-44,
48,
-7,
23,
11,
24,
-21,
52,
-36,
-17,
13,
-26,
16,
14,
10,
-16,
19,
-18,
19,
-10,
10,
-8,
12,
-14,
15,
-27,
13,
-2,
-17,
-18,
11,
-34,
-38,
-13,
-64,
-16,
11,
-27,
-28,
15,
9,
-1,
14,
71,
34,
13,
-39,
42,
10,
-3,
-12,
-26,
-39,
15,
-51,
-4,
-4,
-6,
53,
-15,
12,
-17,
-44,
-32,
-16,
-22,
-52,
0,
0,
51,
5,
6,
-14,
24,
18,
30,
-28,
25,
8,
-12,
-27,
5,
-14,
-62,
-1,
13,
31,
-18,
-38,
-17,
-42,
5,
27,
67,
20,
-30,
12,
2,
0,
-79,
-33,
-9,
18,
-10,
-27,
5,
23,
6,
-9,
-6,
-19,
0,
20,
9,
14,
13,
18,
-17,
8,
-30,
23,
5,
22,
-10,
-35,
-7,
-14,
-31,
21,
27,
12,
12,
0,
-46,
20,
-48,
72,
32,
16,
-6,
-6,
29,
-21,
36,
27,
-24,
47,
-13,
9,
-63,
24,
-29,
24,
-4,
-9,
-75,
6,
0,
19,
-11,
26,
33,
0,
-21,
3,
-26,
21,
-24,
0,
42,
4,
42,
-19,
37,
-10,
-30,
-17,
-75,
48,
-21,
-23,
-42,
17,
-15,
-31,
-13,
27,
-5,
-80,
-49,
-38,
-15,
43,
5,
-42,
6,
17,
17,
-37,
-17,
-42,
-11,
-40,
-39,
36,
-45,
-23,
-20,
39,
17,
-50,
40,
19,
1,
44,
21,
-2,
-12,
-56,
-8,
0,
-14,
-12,
-24,
-13,
-60,
-20,
-34,
27,
31,
8,
-16,
-14,
31,
-21,
28,
-3,
48,
-25,
23,
32,
-14,
3,
9,
-22,
50,
18,
4,
6,
56,
9,
-36,
-25,
9,
-39,
-20,
-4,
-23,
-25,
-16,
-12,
25,
30,
32,
6,
12,
5,
-58,
17,
9,
34,
-2,
11,
-65,
-23,
14,
-25,
-38,
30,
-18,
0,
-26,
-37,
12,
-44,
11,
25,
18,
23,
-54,
17,
-8,
27,
-8,
3,
-35,
33,
-1,
8,
-12,
-19,
-57,
52,
-16,
-10,
1,
-14,
-18,
31,
28,
-6,
-26,
38,
-44,
-26,
-20,
-4,
32,
9,
36,
-3,
21,
20,
-44,
4,
-15,
-19,
-32,
-39,
25,
3,
63,
36,
-41,
-38,
45,
0,
52,
-10,
-46,
-31,
20,
-3,
14,
-1,
54,
17,
-45,
-48,
35,
-9,
-48,
-13,
20,
-33,
26,
11,
-7,
55,
17,
45,
16,
-45,
-42,
-23,
12,
-10,
-34,
7,
5,
5,
-80,
-11,
-9,
-49,
7,
14,
-3,
17,
15,
-16,
3,
-27,
-44,
-20,
29,
-3,
-37,
-21,
27,
-44,
20,
73,
10,
24,
29,
-5,
-9,
-21,
-46,
23,
-51,
20,
16,
-28,
8,
-11,
20,
35,
-8,
33,
4,
-52,
-1,
-24,
38,
15,
31,
-40,
-16,
42,
4,
5,
-9,
13,
-50,
46,
34,
3,
-10,
29,
23,
24,
-18,
35,
-30,
20,
-28,
41,
-11,
40,
5,
20,
-26,
-22,
8,
-32,
37,
27,
28,
-27,
12,
-3,
-32,
14,
-18,
-23,
33,
-23,
-29,
-19,
-6,
-47,
7,
9,
17,
19,
-42,
-67,
-12,
-49,
17,
-28,
2,
-5,
25,
4,
-22,
16,
44,
-2,
-51,
-14,
17,
-43,
23,
-10,
-11,
51,
7,
-9,
33,
38,
32,
2,
12,
6,
2,
-32,
-35,
25,
29,
-11,
37,
2,
12,
45,
21,
-8,
-16,
-3,
13,
9,
60,
26,
-31,
16,
65,
-24,
26,
-1,
12,
-61,
-8,
-20,
9,
-43,
-46,
14,
41,
6,
35,
22,
3,
14,
-14,
-21,
24,
17,
-15,
49,
-16,
-17,
0,
16,
-26,
-40,
-7,
-4,
-14,
-4,
-5,
-20,
-25,
0,
-27,
-16,
4,
-11,
-43,
-52,
8,
8,
19,
8,
-8,
-30,
-17,
3,
5,
16,
-26,
-57,
-2,
32,
1,
18,
-7,
-56,
-17,
-4,
9,
-34,
79,
21,
-2,
1,
2,
1,
-13,
15,
4,
1,
-63,
32,
50,
59,
34,
33,
46,
47,
45,
23,
6,
-28,
-1,
-24,
7,
-27,
-14,
33,
-35,
21,
-3,
-5,
-35,
43,
51,
-10,
11,
33,
-52,
2,
11,
6,
-8,
21,
52,
58,
-17,
12,
-6,
25,
-19,
10,
3,
11,
-52,
12,
77,
34,
14,
59,
25,
37,
23,
20,
-3,
23,
23,
37,
-9,
-25,
0,
37,
-6,
3,
-9,
36,
-20,
-28,
-29,
10,
-17,
-8,
-41,
-2,
21,
7,
3,
30,
-12,
-11,
46,
-26,
-25,
20,
10,
-33,
46,
-53,
43,
-35,
-22,
34,
40,
-6,
-11,
-16,
25,
-31,
63,
3,
6,
-62,
-48,
-7,
-2,
-57,
-36,
40,
-3,
-5,
24,
3,
33,
10,
74,
7,
-21,
9,
-33,
0,
-5,
-47,
25,
39,
-1,
-8,
-30,
-29,
-7,
-5,
10,
20,
27,
3,
-2,
13,
26,
9,
3,
-16,
-11,
-17,
21,
-53,
0,
33,
-8,
41,
-48,
-69,
8,
-16,
-86,
-8,
28,
33,
2,
1,
16,
-10,
-1,
9,
-27,
54,
25,
2,
-4,
32,
-67,
22,
-8,
13,
91,
7,
1,
26,
-32,
-11,
3,
50,
58,
19,
3,
-19,
54,
0,
-16,
28,
3,
-53,
-2,
44,
3,
40,
-18,
1,
-31,
4,
-11,
-28,
34,
-9,
4,
-39,
72,
-15,
-71,
-28,
17,
-2,
-5,
-68,
0,
41,
-57,
-5,
18,
11,
10,
23,
77,
-1,
-31,
12,
-39,
-14,
5,
13,
9,
-29,
5,
18,
-29,
9,
-22,
18,
-2,
3,
21,
-1,
29,
-15,
-20,
30,
24,
-40,
-8,
42,
-24,
-29,
12,
34,
8,
57,
-10,
16,
-16,
44,
-37,
1,
-7,
11,
22,
-43,
35,
-26,
0,
-36,
-26,
19,
-17,
-39,
30,
13,
-23,
-20,
-13,
-31,
-53,
15,
-48,
25,
-41,
5,
27,
-13,
55,
21,
44,
-2,
-3,
-68,
8,
47,
-21,
0,
9,
-18,
19,
24,
1,
10,
56,
-28,
29,
-51,
-50,
-4,
-4,
2,
4,
-5,
-9,
8,
-46,
0,
36,
54,
-51,
17,
-40,
-37,
-3,
-22,
-10,
31,
-16,
-34,
-20,
-59,
-11,
25,
46,
-21,
8,
5,
57,
-29,
-10,
-4,
4,
2,
11,
13,
28,
-5,
-17,
13,
-20,
-8,
-7,
8,
-26,
7,
3,
4,
-38,
-15,
-38,
58,
-9,
-39,
11,
10,
-51,
24,
22,
14,
-13,
-18,
-48,
-1,
-52,
80,
-58,
43,
-2,
-19,
-24,
-26,
-3,
15,
-21,
26,
1,
22,
-6,
8,
-27,
24,
44,
40,
-12,
-35,
5,
24,
-22,
15,
13,
-32,
15,
1,
-20,
23,
-39,
-21,
43
] |
Holbrook, J.
On May 3, 1967, plaintiff Maria Megge lost parts of three fingers on her left hand while operating a press at the Snover Stamping Company plant in Snover, Michigan. Joined with her husband, Paul Megge, she sued the defendant, Lumbermens Mutual Casualty Company, the workmen’s compensation insurance carrier for the plant, alleging it was the third-party tortfeasor negligent in failing to properly inspect the Snover plant and machinery. The jury’s verdict of $40,000 for the plaintiffs was reduced by $3,255.70, the amount Lumbermens already paid Mrs. Megge in workmen’s compensation benefits. Essentially four issues are raised on appeal, three by defendant, and one by plaintiffs on cross appeal.
First, defendant makes a general argument that there was insufficient evidence of its negligence to submit the question to the jury. At the start of its argument, defendant vaguely objects to the permissibility of treating a workmen’s compensation insurance carrier as a third-party defendant in a tort suit for negligent infliction of injury, an objection raised numerous times at the trial level. However, this Court is bound by the holdings of Ray v Transamerica Ins Co, 10 Mich App 55 (1968), leave denied, 381 Mich 766 (1968); Banner v Travelers Ins Co, 31 Mich App 608 (1971); and Ruth v Bituminous Casualty Corp, 427 F2d 290 (CA 6, 1970). These cases refuse to allow the workmen’s compensation insurance carrier immunity from common-law tort liability for its own acts of negligence causing injury to an employee of an insured.
Next, defendant raises certain other issues, first objecting that any defect in the machine press that caused the injury was latent and therefore undiscoverable by defendant’s inspection. However, defendant cites no case authority for this proposition. This Court is unwilling to search for authority to sustain defendant’s position. Cacavas v Bennett, 37 Mich App 599 (1972). Second, defendant claims that its inspections were for the sole purpose of protecting its interest in evaluating risks before selling a workmen’s compensation policy to Snover, that the defendant was not a volunteer in making inspections, and that in any case plaintiff did not rely on the inspections. In both Ray and Banner this Court accepted the theory that if an insurance carrier gratuitously undertook to pro vide safety-inspection services on an employer’s premises, and then negligently performed these services, it could be held liable as a third-party defendant for the injuries suffered as a result of the carrier’s negligence. Whether Lumbermens became a gratuitous volunteer, and whether there was sufficient reliance, are questions of fact for the jury. The Snover plant manager testified that Lumbermens made inspections every 30 days or so, during which machinery was inspected, and that he relied on Lumbermens’ safety recommendations. Lumbermens’ regional director testified the inspections were made once or twice a year, and were only cursory plant inspections, not machine inspections. The frequency of the inspections, their character, and Snover’s reliance on them are factual issues for jury resolution. Schweim v Johnson, 10 Mich App 81 (1968). In Ruth where an almost identical factual situation as the one here occurred, an insurance carrier was sued as third-party defendant by an employee of a small company. The employee’s fingers were amputated in a press accident. In affirming the jury award, the Court stated conclusions equally applicable here, at page 292:
"In his amended complaint Ruth alleged that the safety inspectors of Bituminous Casualty were negligent in failing to recommend certain improvements in the press he operated, which they had inspected as part of the insurance company’s safety inspection program. There is evidence from which the jury could have found that safety engineers of Bituminous Casualty had made safety inspections of Hogart’s plants routinely and systematically from 1960 to the date of Ruth’s injury. These included inspection of the press which injured Ruth. There was a total of 16 or 17 separate inspections. Based upon these inspections, Bituminous Casualty made safety recommendations to Hogart, which was a small company without a safety program or safety engineers of its own. There is evidence that Hogart relied upon and consistently complied with the safety recommendations made by Bituminous Casualty.”
Defendant places great weight on the fact that Mrs. Megge admittedly did not herself rely on Lumbermens’ inspections. In Ruth, however, it was enough that the jury decided that the insured company had relied on the inspections of the insurance carrier to evaluate its own safety program.
As for the defendant’s further claim that plaintiff was contributorily negligent, and that no negligence had been shown which was a proximate cause of plaintiff’s injury, this Court finds sufficient evidence for the jury to find for the plaintiffs on both issues. Snover employees testified that the press was operated by pressing two palm buttons located near the level of the operator’s head, and that if the operator lifted his hand off one of the buttons the machine would automatically stop its cycle, a safety feature of the machine. Mrs. Megge testified her injury occurred when she took her left hand off a palm button to adjust the position of a part in the machine, and the press did not stop as she expected. An accident investigative report dated June 29, 1967, and prepared by a Lumbermens’ employee, read under the heading "The Cause of the Accident” the explanation "Improper Electrical Hookup”, and under the heading of "Corrected Action Taken” the statement "Complete Plant check of Presses & all presses now correctly wired”. The defendant introduced testimony that the machine operated correctly both before and after the accident. In reviewing a jury verdict the facts are to be construed most favora bly toward the nonmoving party. McKinney v Anderson, 373 Mich 414 (1964). This Court will refuse to disturb jury verdicts or findings of fact unless reasonable minds could not disagree. Schweim, supra. Seen in this light, this Court sees no reason to second guess the factual determinations of the jury.
The second issue defendant raises is that plaintiffs’ counsel’s argument to the jury was highly prejudicial and in violation of the rules of procedure covering the trial of negligence cases, because the plaintiffs’ counsel argued that the jury’s verdict for the plaintiffs would prevent similar negligence in the future. The Court finds no error here in light of similar argument permitted in Elliott v AJ Smith Contracting Co, 358 Mich 398 (1960). Moreover, the trial judge later instructed the jury to ignore appeals to passion and prejudice, allaying any prejudice that might have occurred by plaintiffs’ counsel’s remarks. Conerly v Liptzen, 41 Mich App 238 (1972).
The third issue defendant raises is that the trial judge erred in refusing to charge the jury in accordance with the written requests of defendant. The defendant merely quotes the requested instructions without argument on their behalf, and without allegation that any instruction given in fact was deficient. Again, this Court is unwilling to search for authority to sustain defendant’s position. Cacavas, supra. In any case, the instructions given when taken as a whole do not appear to be an incorrect statement of the law or testimony. Bauman v Grand Trunk W R Co, 18 Mich App 450 (1969).
On cross appeal plaintiffs object to the trial judge’s deduction of $3,255.70 from the jury’s award of $40,000 to plaintiffs. Plaintiffs first claim that defendant is estopped from demanding a deduction of paid compensation from the jury award, since the defendant itself placed before the jury the fact that $3,255.70 had already been paid, thus allowing the sum to be figured into the jury’s award. This position must be rejected, since plaintiffs provide no authority in support of their contention, and since plaintiffs failed to use their right to request an appropriate jury instruction to effectuate their claim.
Plaintiffs next argue that subrogation or reimbursement rights should be denied to Lumbermens, since it is the third-party tortfeasor. The Court is concerned here with an interpretation of MCLA 418.827(5); MSA 17.237(827)(5), which allows an insurance carrier reimbursement for workmen’s compensation benefits paid out of damages recovered from a third-party tortfeasor. The statute does not seem to be written in contemplation that an insurance carrier might also be a third-party defendant. Thus the anomaly arises of a defendant insurer being subrogated to the rights of its own plaintiff for the amount of the compensation insurance already paid to him. This incongruity was noted in Ray, supra, at pages 62-63, but that Court saw no reason why a compensation insurance carrier should be deprived of reimbursement rights because it was also the third party defendant. While this Court might be obligated to hold differently had not the subrogation and reimbursement rights asserted been statutorily based, plaintiff supplies no convincing reason why the Ray statutory interpretation should not be followed here. Cf. Michigan Hospital Service v Sharpe, 339 Mich 357 (1954); 83 CJS, Subrogation, § 13, p 610.
Affirmed. No costs, neither party prevailing fully.
All concurred.
At the time of the suit the applicable law was part 5, MCLA 413.15; MSA 17.189. | [
9,
-23,
-4,
13,
41,
20,
15,
-60,
1,
-27,
-49,
-7,
49,
0,
0,
-26,
33,
-3,
-24,
-13,
-10,
-59,
-23,
-19,
-36,
-71,
-2,
29,
-2,
14,
-6,
26,
-1,
-33,
-38,
-11,
-10,
19,
-36,
12,
16,
-8,
87,
-24,
20,
-18,
22,
3,
22,
14,
51,
-39,
-27,
-27,
33,
1,
12,
30,
-26,
25,
14,
-39,
80,
2,
19,
5,
16,
15,
18,
-35,
5,
47,
18,
35,
-19,
-6,
12,
55,
-52,
-17,
13,
-18,
15,
4,
6,
30,
-13,
46,
14,
-33,
24,
-14,
-50,
45,
29,
24,
-67,
20,
-16,
43,
0,
17,
1,
-27,
-27,
-41,
-31,
-58,
-10,
-5,
2,
58,
-32,
35,
9,
-30,
39,
-17,
-6,
48,
-6,
-3,
-3,
-29,
-6,
41,
0,
-14,
26,
38,
51,
31,
19,
2,
3,
-16,
31,
-15,
6,
24,
-20,
34,
-14,
-8,
-49,
-34,
-22,
-22,
-18,
-24,
14,
50,
4,
-17,
-13,
-14,
-20,
-18,
63,
-44,
-16,
33,
35,
32,
-16,
-67,
16,
16,
30,
-10,
11,
-10,
-9,
-21,
44,
25,
56,
-62,
-51,
53,
-30,
-11,
5,
43,
-30,
-16,
-5,
15,
40,
-18,
73,
-28,
6,
32,
-14,
37,
-5,
10,
56,
9,
68,
-65,
12,
-52,
24,
-6,
16,
-8,
-24,
-8,
30,
15,
-40,
-64,
-24,
14,
-21,
-10,
-30,
-58,
-15,
-1,
9,
-62,
-63,
-41,
-43,
-3,
8,
-35,
-2,
-24,
81,
-9,
6,
24,
12,
-85,
60,
-19,
37,
-27,
-10,
31,
5,
-9,
-24,
-8,
17,
1,
1,
-29,
-7,
13,
-18,
-21,
-34,
-17,
-61,
-20,
-47,
10,
-39,
34,
39,
-3,
-19,
42,
-39,
4,
-18,
-10,
17,
-10,
-40,
-57,
9,
35,
37,
-14,
15,
47,
-34,
-46,
-26,
2,
-17,
-29,
-53,
-4,
47,
-11,
17,
-16,
31,
41,
9,
-31,
-34,
7,
-44,
-18,
-20,
1,
29,
23,
-70,
-4,
22,
-24,
-63,
-42,
5,
-55,
11,
-15,
-27,
-33,
-7,
-6,
-2,
46,
-20,
-27,
-16,
29,
-4,
-32,
18,
10,
-36,
21,
4,
52,
-6,
-59,
15,
68,
4,
-5,
12,
19,
49,
-20,
-75,
9,
21,
0,
6,
-15,
23,
15,
-8,
-15,
-42,
14,
45,
1,
-43,
30,
17,
-20,
-20,
15,
-7,
-55,
-11,
-18,
8,
44,
-25,
-1,
14,
-58,
26,
-26,
-43,
33,
-1,
11,
31,
-6,
58,
-45,
-4,
6,
2,
-25,
-60,
0,
-57,
-31,
8,
72,
-6,
39,
-36,
12,
-25,
19,
24,
19,
6,
46,
-18,
-5,
-3,
-20,
-4,
-14,
-1,
-27,
4,
18,
-12,
-43,
56,
-45,
-10,
13,
42,
5,
33,
-36,
15,
-29,
6,
2,
12,
-2,
-17,
38,
4,
-23,
22,
-27,
-36,
16,
13,
6,
-3,
-6,
-31,
-44,
-14,
19,
28,
36,
40,
-87,
0,
1,
-2,
3,
20,
10,
13,
-40,
9,
-10,
8,
-23,
56,
31,
60,
0,
36,
-23,
60,
-34,
3,
6,
-6,
35,
-7,
-17,
-8,
16,
-28,
57,
18,
95,
8,
-28,
-8,
-8,
17,
0,
26,
-4,
42,
25,
29,
-25,
-50,
-9,
-35,
-13,
-47,
21,
-26,
-26,
7,
-34,
55,
-17,
-10,
9,
8,
39,
-41,
-39,
32,
17,
0,
28,
-42,
2,
5,
10,
-9,
-42,
-62,
45,
13,
-36,
-5,
-37,
27,
-37,
-2,
-1,
-44,
-23,
11,
18,
-6,
-5,
-19,
-18,
-20,
39,
32,
16,
-27,
-92,
-52,
11,
28,
19,
-13,
-27,
3,
-5,
56,
4,
0,
6,
-15,
54,
-9,
37,
1,
2,
34,
-11,
-8,
6,
59,
-46,
-9,
-3,
-6,
23,
-18,
-16,
-16,
37,
-20,
28,
-42,
-40,
8,
-37,
-46,
-36,
-3,
7,
-31,
-40,
-22,
16,
-12,
-8,
16,
-4,
89,
-10,
28,
0,
-7,
14,
-26,
-12,
-45,
36,
1,
17,
42,
-13,
-22,
-7,
-4,
-3,
-21,
-19,
-6,
-11,
44,
14,
-1,
15,
5,
21,
-33,
29,
28,
15,
-5,
-2,
-10,
12,
-15,
2,
10,
19,
-6,
57,
-71,
42,
-22,
-36,
31,
-2,
-23,
-34,
2,
12,
7,
-27,
14,
27,
22,
-16,
-28,
5,
7,
85,
-91,
-3,
-16,
-5,
-8,
-30,
-22,
28,
4,
5,
12,
35,
39,
-15,
39,
-22,
6,
-30,
16,
7,
12,
34,
4,
0,
25,
33,
-27,
14,
41,
33,
11,
-60,
-60,
58,
-26,
-5,
-35,
-5,
3,
36,
-22,
-37,
-6,
60,
22,
28,
1,
20,
-28,
-31,
26,
44,
28,
35,
23,
7,
45,
17,
-43,
-35,
-27,
-36,
-30,
-10,
25,
-18,
14,
26,
31,
12,
7,
-3,
-18,
-32,
-28,
-11,
-9,
-7,
19,
32,
-20,
0,
16,
11,
10,
3,
-55,
44,
8,
-40,
11,
21,
-24,
51,
-17,
-33,
-14,
-33,
1,
26,
-26,
-40,
29,
-35,
1,
-17,
1,
27,
-30,
-13,
27,
-41,
-16,
46,
-27,
-15,
-16,
44,
46,
-3,
8,
30,
20,
-42,
64,
-4,
-19,
-40,
-12,
-37,
16,
-14,
-45,
17,
3,
-27,
-1,
-26,
-68,
21,
-18,
5,
38,
28,
-16,
-10,
-30,
-5,
-5,
0,
56,
-4,
-27,
-19,
1,
2,
-8,
-3,
12,
20,
-24,
29,
-35,
49,
-27,
-14,
18,
-9,
-9,
-45,
39,
-6,
7,
17,
-21,
17,
8,
31,
13,
17,
20,
-29,
73,
1,
-36,
42,
53,
24,
-18,
11,
14,
1,
-30,
-31,
2,
63,
-14,
-2,
-25,
-22,
30,
27,
5,
-20,
-77,
67,
-18,
-1,
10,
-31,
-25,
1,
-31,
31,
34,
-72,
10,
6,
-68,
0,
62,
17,
3,
-20,
30,
-23,
-56,
24,
-16,
45,
-37,
2,
-12,
-19,
33,
16,
-21,
-49,
-1,
-17,
25,
-15,
0,
34,
28,
57,
24,
-11,
-28,
-23,
-48,
23,
41,
-38,
-10,
29,
-17,
55,
0,
54,
-29,
26,
-34,
-20,
46,
20,
-4,
35,
38,
22,
-27,
52,
-8,
-64,
26,
-1,
29,
-16,
24,
-86,
-5,
15,
29,
30,
12,
5,
-27,
-31,
13,
-12,
-5,
40,
12,
-24,
33,
27,
-42,
19,
16,
12,
-24,
37,
-13,
69,
-15,
16,
26,
27,
21,
-26,
-24,
-21,
-13,
-18,
22,
-44,
-15,
11,
0,
-9,
-9,
14,
22,
-9,
-34,
22,
17,
-30,
-42,
-20,
-57,
-40,
-36,
0,
13,
20,
25,
14,
-32,
16,
27,
10,
34,
2,
-16,
24,
31,
29,
2,
27,
13,
-11,
-21,
15,
15,
7,
45,
45,
-25,
-10,
-64,
-23,
7,
52,
26,
12
] |
Lon», J.
The respondent was arrested and tried before the superior court of Grand Rapids for keeping his saloon open on the night of August 24, 1893. At the time in question, the respondent was running an hotel and saloon in the city of Grand Rapids; and, on the evening of that day, a dance 'was in progress in the hall upstairs, in the same building. The dance was concluded about 11 o’clock. On the part of the prosecution, it is claimed that, after the' dance, the witnesses Stoutjesdyk, Price, and Rittenberg, together with Lou Thayer and her sister and one May Wyman and several others, came down from the ■dance hall, and got some beer in a small room back of the main bar-room, which beer was paid for by Stoutjesdyk.
The people, after swearing the witnesses Stoutjesdyk, Price, and Rittenberg, rested their case. These witnesses had testified that, after 11 o’clock, they, in company with these women, went into the room back of the bar-room, kept by respondent, and there purchased lager óf respondent’s barkeeper. The names of the women were not placed on the information. Respondent thereupon insisted upon their being produced as witnesses by the people, and that their names be placed upon the information. The court declined to order the people to place their names upon the information, but had subpoenas issued for them. The witnesses not being found, after waiting two hours,, the court directed the respondent to proceed with his defense. He did proceed, and examined eight witnesses, who all testified that the saloon was not open upon the night in question, and that no liquors were sold there that night after the hour of closing. After the defense rested, the witness May Wyman, who the defense had insisted should be produced by the people, was found, and called into court, and examined on the part of the people. Her testimony corroborated the people’s witnesses, but was taken under respondent’s objection, who now claims that her testimony ‘was more prejudicial to him than it would have been had it been taken earlier in the trial.
We think the court was not in error in denying the motion to place the names of these- witnesses upon the information. It is evident that the people had not failed to put all parts of the transaction before the jury by the testimony of the three witnesses called to sustain the prosecution; that the introduction of the testimony of the other witnesses would have been merely cumulative. It is true that the prosecutor in a criminal ease is not at liberty, like the plaintiff in a civil case, to select out a part of an entire transaction which makes against the respondent, and then put the respondent to the proof of the other part, so long as it appears at all probable from the evidence that there may be any other part of the transaction undisclosed, especially if it appears to the court that the evidence of the other portion is attainable. If the facts stated by the witnesses who are called show prima facie or even probable reason for believing that there are other parts of the transaction to which they have not testified, and which are likely to be known to other witnesses present at the transaction, then such other witnesses should be called by the prosecution, if attainable. Hurd v. People, 25 Mich. 415. But the rule laid down in such cases is really aimed at the suppression of evidence, and does not decide that in all cases all the witnesses to a transaction must necessarily be called by the prosecution. The justice-of requiring this must depend upon circumstances, and it would seldom be as manifest in cases of mere misdemeanor as in cases of higher offenses, especially those accomplished by violence. But in this case there was no reason to suppose that the prosecution had failed to put all parts of the transaction in evidence before the jury, and the testi■mony of the others who were not called could only have been .cumulative. This rule was laid down in Bonker v. People, 37 Mich. 4. In People v. Quick, 51 Mich. 547, it was held that the prosecution in a criminal case is not obliged to call all the witnesses named on the information.
But in the present case the good faith of this claim may well be questioned; for, when one of these witnesses was subsequently called, sworn, and examined by the people, ,the defense objected to the testimony (such testimony corroborating the people’s case), for the reason that the witness was called at a later stage of the proceeding. The time of calling the witness was within the discretion of the trial court, and, inasmuch as respondent was given the right to rebut this testimony, we think he cannot now complain.
One of the witnesses for the people was called, examined in chief, and at some length- cross-examined by respondent’s counsel. The court then asked of the prosecution, “Is that all of this witness?” and the attorney for the prosecution responded, “ I was through with the witness some time ago.” Respondent’s counsel then said, “ I desire to examine this witness;” when the court stated/ “ I cannot wait,” and dismissed the witness from the stand, counsel for respondent taking an exception to this proceeding. It is not stated in this record what further examination the respondent desired to make of this witness, and the court below was not advised what further questions respondent desired to ask; but the whole matter was dropped, as appears by this record, by respondent’s counsel’s taking an exception. We think, if respondent desired further examination of the witness, he should then have stated to the court upon what subject he desired to examine him, for he had already cross-examined the witness at great length. While the court should not have summarily dismissed the -witness from the stand, yet we think it was the duty of counsel, under the circumstances, to state to the court some reason why he desired to examine the witness further. No reason is assigned in this Court why further examination was desired, and we are left wholly in the dark as to whether respondent’s rights were prejudiced by the action taken. Under the circumstances, we are unable to say that there was any prejudice, ¡as- the facts brought out on the direct examination seem to have been fully covered by cross-examination.
Complaint is made of the remarks of the prosecuting ‘attorney during the trial. He stated, in the presence of the jury, in the closing argument:
“This case follows another case, in which respondent pleaded guilty.”
We do not think this remark prejudiced respondent’s ■case. He was called as a witness, and testified that he had once- been convicted for keeping open after hours.
The conviction must be affirmed.
McGrath, C. J., Montgomery and Hooker, JJ., concurred. Grant, J., did not sit. | [
59,
43,
28,
50,
-13,
-18,
-25,
21,
-62,
-11,
19,
-34,
-8,
-28,
101,
12,
-47,
-11,
43,
-55,
18,
-48,
-39,
35,
-17,
5,
8,
41,
-67,
-14,
47,
75,
-34,
-7,
69,
-32,
26,
-23,
17,
-8,
-36,
17,
33,
-19,
-6,
11,
-6,
-20,
36,
-13,
15,
-29,
-34,
35,
-3,
-58,
-27,
35,
9,
47,
15,
14,
2,
-46,
-1,
-86,
22,
-55,
-34,
-53,
15,
-50,
-33,
-26,
1,
9,
-4,
26,
14,
26,
4,
-25,
28,
66,
-17,
26,
-14,
-28,
-10,
13,
2,
3,
-37,
16,
51,
-11,
-31,
17,
-7,
1,
-24,
-42,
-66,
23,
8,
25,
-15,
55,
-60,
22,
-32,
-32,
90,
18,
-20,
-13,
25,
-35,
-54,
-4,
29,
14,
43,
1,
-5,
-25,
-62,
-38,
-21,
-54,
10,
13,
22,
-31,
-6,
-10,
-34,
32,
-13,
-1,
16,
41,
10,
-10,
-18,
-21,
-20,
43,
8,
0,
-50,
-47,
61,
27,
5,
1,
-7,
-48,
0,
-15,
-15,
-26,
-29,
-22,
23,
-54,
56,
4,
25,
-39,
-15,
2,
-7,
38,
21,
-12,
21,
-42,
-23,
0,
34,
33,
1,
-14,
59,
-37,
22,
-37,
31,
47,
-31,
19,
-11,
6,
-2,
50,
-11,
-16,
29,
-10,
27,
-12,
-77,
11,
42,
-12,
-17,
-2,
-12,
-28,
2,
-11,
-3,
-35,
-7,
-23,
-51,
-47,
17,
-22,
-39,
-12,
-9,
24,
-1,
-36,
65,
10,
-41,
0,
-14,
23,
8,
-3,
-5,
-55,
20,
-13,
5,
12,
-21,
-38,
-23,
13,
-3,
23,
-43,
1,
-7,
49,
16,
26,
13,
12,
-50,
42,
38,
-13,
0,
-17,
39,
17,
14,
7,
-12,
-16,
37,
20,
-49,
-9,
48,
-6,
74,
16,
-14,
-24,
12,
58,
-1,
25,
19,
-18,
-11,
1,
12,
-17,
-41,
5,
-20,
10,
33,
34,
-29,
2,
32,
-14,
-74,
76,
8,
16,
13,
-5,
21,
-7,
-55,
21,
-28,
-3,
-40,
-50,
14,
0,
-26,
-24,
59,
0,
-13,
19,
7,
-14,
20,
-73,
-56,
16,
55,
-6,
-44,
22,
-13,
-24,
1,
35,
-3,
7,
-57,
-4,
16,
50,
26,
-19,
10,
-40,
-15,
-18,
-9,
39,
14,
-8,
19,
-90,
12,
-49,
37,
7,
-36,
-40,
1,
-8,
10,
-5,
-9,
-16,
18,
44,
10,
-24,
-34,
-26,
36,
17,
-26,
4,
-2,
-13,
-9,
-33,
-3,
12,
-38,
58,
14,
-59,
21,
14,
15,
-3,
16,
-47,
-59,
33,
-4,
2,
0,
-5,
28,
21,
-69,
-33,
-9,
-53,
-51,
36,
64,
23,
-22,
-40,
-11,
-6,
40,
10,
66,
-33,
13,
1,
29,
-19,
-20,
37,
0,
0,
31,
13,
22,
40,
79,
-22,
35,
-2,
-14,
-15,
-31,
4,
0,
62,
-6,
-13,
-7,
36,
10,
-67,
-5,
10,
-13,
33,
56,
-15,
-10,
-14,
16,
8,
3,
17,
18,
18,
-30,
40,
5,
0,
16,
32,
9,
17,
-12,
-21,
41,
40,
-19,
-3,
-16,
58,
29,
19,
11,
-57,
-10,
0,
64,
37,
27,
10,
4,
33,
66,
-1,
-45,
-45,
-35,
-19,
-20,
0,
62,
0,
-41,
41,
-28,
-29,
5,
24,
-21,
42,
-41,
-53,
-33,
-8,
-14,
7,
56,
-3,
33,
-8,
34,
26,
0,
-1,
-4,
-15,
14,
-28,
0,
21,
12,
3,
12,
22,
-38,
27,
14,
-31,
4,
-21,
-42,
-18,
-6,
-1,
21,
-49,
36,
21,
2,
6,
10,
-46,
54,
-1,
35,
-16,
-42,
-29,
29,
-4,
9,
3,
-4,
-12,
-20,
19,
-42,
-19,
-26,
-23,
-38,
-7,
-6,
-20,
11,
-60,
-11,
-21,
21,
-13,
-8,
64,
-12,
12,
-62,
-4,
-4,
-18,
-15,
70,
15,
-5,
4,
22,
-19,
47,
-12,
-7,
-37,
22,
-40,
28,
3,
24,
-5,
9,
8,
13,
13,
18,
45,
-32,
-5,
-24,
-48,
-10,
-70,
-14,
24,
12,
21,
-19,
-7,
17,
-27,
39,
-7,
-27,
-28,
4,
40,
10,
-50,
32,
24,
-16,
-68,
-36,
-14,
0,
-89,
-4,
0,
29,
28,
15,
14,
49,
-59,
30,
3,
8,
-13,
-7,
-12,
20,
-64,
30,
-8,
6,
-29,
11,
64,
-34,
16,
-43,
-17,
-10,
48,
-40,
-11,
47,
-44,
48,
-3,
-19,
55,
-19,
28,
-8,
27,
-55,
13,
41,
20,
-53,
9,
22,
-12,
-1,
20,
17,
47,
-22,
66,
19,
-20,
14,
6,
3,
-9,
45,
-24,
23,
-9,
18,
5,
-15,
-13,
-31,
9,
-41,
40,
-27,
11,
-22,
5,
-101,
-27,
9,
15,
30,
8,
-13,
21,
-22,
-12,
35,
8,
33,
-39,
-10,
34,
48,
7,
21,
-25,
5,
6,
-67,
32,
8,
7,
-3,
1,
56,
-55,
-12,
-40,
-13,
-11,
4,
-59,
-2,
-11,
-30,
-3,
-33,
-28,
16,
45,
64,
0,
22,
32,
5,
16,
10,
-58,
-7,
13,
16,
-41,
-66,
-86,
12,
4,
-9,
6,
-8,
-45,
-3,
-11,
-17,
-12,
23,
-1,
5,
48,
5,
38,
-25,
-44,
12,
40,
4,
26,
31,
31,
33,
-17,
-82,
8,
35,
-47,
-27,
27,
-55,
-28,
1,
-55,
-37,
35,
12,
35,
-6,
-1,
23,
-45,
-7,
29,
-4,
13,
-24,
-66,
-24,
16,
-33,
-5,
-13,
-7,
-4,
27,
-14,
-10,
-40,
-32,
3,
-27,
-24,
20,
-3,
13,
-8,
34,
20,
31,
17,
-21,
7,
17,
54,
-8,
56,
15,
-36,
14,
46,
-34,
-1,
13,
8,
7,
-50,
-27,
-9,
-2,
-11,
-23,
42,
-4,
-53,
9,
19,
-19,
14,
-4,
-45,
13,
8,
-3,
-8,
1,
55,
-8,
81,
26,
-1,
40,
-1,
-4,
-18,
52,
-14,
33,
50,
74,
-17,
22,
-13,
0,
3,
10,
26,
-36,
-27,
19,
-36,
34,
-16,
-7,
4,
-24,
24,
11,
-40,
-5,
-23,
7,
24,
-13,
48,
26,
14,
13,
-10,
-85,
22,
3,
-47,
-9,
21,
18,
49,
-20,
38,
-2,
30,
-21,
57,
-32,
-23,
-31,
-30,
-58,
58,
-2,
9,
41,
20,
-34,
45,
-42,
12,
2,
32,
24,
16,
31,
33,
-3,
-11,
12,
45,
22,
-5,
-6,
0,
-29,
17,
16,
17,
49,
24,
-21,
-32,
-22,
27,
49,
44,
-39,
-5,
16,
31,
-2,
16,
-20,
16,
6,
-27,
12,
-11,
12,
14,
-18,
7,
-53,
31,
-40,
15,
-46,
-46,
-32,
33,
-20,
-1,
-41,
1,
-18,
-14,
10,
-18,
-18,
39,
30,
-21,
-10,
-23,
-43,
-16,
-57,
-67,
34,
21,
-12,
18,
40,
-5,
23,
-13,
-22,
9,
-53,
47
] |
Grant, J.
The board of supervisors of the county of Cheboygan, desiring to submit to the'electors the question of the erection of a court-house, and the issue of bonds-' to obtain the necessary funds therefor, passed the following resolution by the requisite two-thirds vote:
“Resolved, that the board of supervisors of Cheboygan* county be authorized to borrow $35,000 upon the faith, and credit of the county of Cheboygan, and to issue the-bonds of said county, to be payable in 10 installments, within 30 years of the date of their issue, first installment-to be made payable 10 years from date of issue, and ta-bear interest at not exceeding (6) six per cent, per annum, to be used for the purpose of building and - erecting a. court-house in the county of Cheboygan.”
The resolution further provided for the submission to-the voters of printed ballots, on each of which were to be printed the words “For the Loan” and “Against the-Loan,-” with the appropriate square before each, in which the voter was to make a cross. The loan was adopted by a large majority. The board, after the canvass of the votes and the declaration of the result, adopted a resolution reciting the facts, and authorizing the issue of $35,-000 of bonds, payable in 15 years from the date of issue, at 5 per cent, per annum. The Attorney General, upon the; relation of several citizens and tax-payers, filed a bill ini chancery in the circuit court for the county of Ingham, praying for a perpetual injunction against the board of supervisors and others, to enjoin the issue of. the bonds, and the purchase of a court-house site which the board had voted to purchase. A preliminary injunction was issued. The defendants (the relators here) moved to dissolve the injunction. The court dissolved it as to the purchase of the site, but retained it as to the issue of the bonds.
Two questions are raised:
1. Is the issue of the bonds authorized by the resolution and the action of the electors?
2. Has the court of chancery in Ingham county jurisdiction?
1. Section 483, How. Stat., defines and limits the powers of the board of supervisors in financial matters. They cannot exceed the authority there expressly given over the -erection of county buildings and the loaning of money. They may fix and determine the site of any county building. Under clause 6, they may cause any such building to be erected, and prescribe the time and manner of erecting the same. By clause 7, they can borrow no greater sum than $1,000 for the purpose of constructing any public building, unless authorized by a majority of the electors of said county. Clause 8 authorizes them—
“ To provide for the payment of any loan made by them by tax upon such county, which shall in all cases -be within 15 years from the date of such loan.”
The learned counsel for relators doubt whether subdivision 8 applies to an issue of bonds. We think, however, that the statute is susceptible of but one construction, viz., that it limits the issue of all bonds to 15 years.
By the resolution, no bonds could be made payable till the expiration of 10.years. It is argued that the 30-year limit provided in the resolution is of no consequence, and that the board might make the amount payable in semiannual installments, so as to bring it within the limit of 15 years. We cannot assent to this construction. The proposition upon which the electors voted clearly was that the bonds should be made payable in installments extending over a period of 10 to 30 years. If the argument for relators be sound, then the board might make the entire amount payable in 10 monthly installments. The voters were clearly given to understand "that the entire loan would not be payable in 15 years, but would be extended over a period of 30 years. No such loan is authorized by law, and it was therefore void. The intent of this law clearly is to prevent the imposition of burdens by taxation extending far into the future, upon those who could have no voice in imposing them.
But, if the resolution were valid, the board disregarded the instruction of the electors, by making the entire amount payable at one time. Many electors might not vote for the imposition of a tax of $35,000 in 15 years, who would vote to pay in installments extending over a period of 30 years. It must be held, therefore, that the proposed issue of the bonds is void because it is not such as the electors authorized.
2. This bill was filed under the supposed authority conferred by section 6612, How. Stat., which reads as follows:
“ When it may be necessary to file a bill or information, or to commence any proceedings in chancery, on the part or in behalf of the State, the same may, at the election of „the Attorney General, be commenced in the circuit court for the county of Ingham, in the equity side thereof, .and said court shall have complete jurisdiction and full power and authority in the premises."
The authority of the Attorney General to institute proceedings of this character has been repeatedly sustained. Attorney General v. City of Detroit, 55 Mich. 181; Attorney General v. Board of Auditors, 73 Id. 53; Attorney General v. City of Detroit, 71 Id. 92; Attorney General v. City of Detroit, 26 Id. 263. The power of the Legislature to provide that such suits may be instituted in the county of Ingham, where the office of the law department of the-State is located, is beyond question.
3. The circuit judge dissolved the injunction in so far as it restrained the purchase of a site for the court-house. That question is therefore not before us for determination.
The writ will be denied, without costs.
McGrath, C. J., Long and Hooker, JJ., concurred with Grant, J. Montgomery, J., concurred in the result. | [
48,
51,
19,
-13,
-37,
51,
10,
-5,
15,
-1,
-34,
-32,
3,
18,
-9,
4,
-37,
-19,
-7,
27,
0,
0,
-57,
-27,
-13,
30,
12,
-9,
-2,
-54,
32,
-39,
-23,
29,
-14,
-14,
7,
9,
64,
-12,
38,
-45,
-43,
10,
-61,
-5,
-9,
-66,
4,
-17,
5,
34,
6,
0,
-8,
31,
28,
-36,
-34,
-14,
0,
-9,
14,
27,
16,
8,
-15,
-19,
33,
-43,
-15,
24,
-13,
-34,
64,
32,
22,
10,
-75,
23,
-10,
30,
32,
-9,
-16,
-27,
-3,
-24,
13,
6,
-22,
1,
-55,
27,
79,
-12,
13,
18,
38,
21,
15,
-15,
-36,
12,
22,
-4,
31,
-29,
26,
-51,
28,
-20,
43,
47,
-31,
0,
-45,
51,
29,
18,
-1,
-17,
-14,
18,
-16,
13,
-5,
55,
-24,
-46,
9,
0,
16,
14,
-20,
-20,
-12,
-16,
20,
-22,
12,
-6,
5,
-5,
11,
-11,
-19,
-23,
1,
5,
-32,
6,
-24,
47,
-8,
48,
21,
-36,
12,
-37,
16,
17,
0,
-58,
-49,
-57,
-6,
26,
17,
52,
18,
44,
10,
-13,
2,
-21,
0,
31,
32,
15,
14,
7,
10,
37,
-40,
23,
26,
22,
-1,
6,
23,
-2,
-57,
-34,
-8,
63,
7,
13,
-24,
12,
-9,
-58,
42,
-16,
-21,
-36,
27,
-42,
-18,
19,
-5,
0,
-3,
40,
36,
6,
-13,
42,
53,
-13,
53,
5,
-9,
54,
-32,
-34,
-6,
2,
-39,
-14,
29,
-12,
9,
26,
12,
39,
-15,
20,
20,
7,
-9,
-19,
1,
18,
7,
-4,
-26,
-78,
-21,
-8,
1,
11,
-45,
46,
-8,
24,
30,
7,
-39,
-40,
10,
9,
-38,
0,
-3,
13,
-33,
61,
-11,
43,
-32,
4,
38,
-25,
-41,
50,
10,
-38,
-27,
-14,
16,
-49,
-31,
41,
-29,
6,
-18,
-28,
0,
-13,
-24,
9,
0,
5,
54,
-3,
-18,
-3,
43,
-22,
-41,
6,
-28,
-13,
11,
-1,
-24,
34,
25,
21,
-2,
15,
2,
-19,
21,
0,
3,
14,
10,
-26,
16,
25,
-43,
-53,
19,
42,
23,
-11,
-69,
-10,
-53,
-35,
-13,
15,
11,
30,
24,
-11,
32,
-43,
76,
9,
50,
-22,
2,
-33,
-48,
-64,
-7,
5,
7,
37,
-21,
11,
-59,
29,
1,
19,
-2,
22,
16,
27,
-13,
-29,
29,
-71,
12,
1,
20,
-15,
30,
50,
19,
-17,
21,
1,
8,
18,
-37,
15,
24,
87,
29,
-10,
74,
11,
5,
0,
-28,
-13,
-26,
-47,
-39,
0,
31,
4,
26,
-28,
-58,
-77,
-10,
-6,
-10,
1,
-15,
-7,
-3,
19,
48,
40,
0,
-26,
7,
-49,
44,
12,
27,
-20,
19,
-14,
12,
0,
-9,
-15,
9,
-17,
28,
27,
-53,
-10,
-63,
2,
28,
10,
19,
-24,
-52,
-31,
-70,
-5,
29,
7,
34,
-5,
-52,
-10,
-27,
44,
3,
6,
-10,
10,
-44,
29,
-23,
20,
23,
-28,
3,
-31,
0,
-39,
-25,
10,
-1,
29,
-35,
11,
27,
3,
-49,
15,
-2,
-15,
-13,
10,
29,
9,
1,
37,
-2,
-7,
-28,
-17,
-37,
-13,
-18,
18,
-75,
-17,
40,
-17,
19,
0,
6,
30,
26,
10,
31,
34,
23,
17,
-29,
-27,
-22,
-16,
-9,
-9,
-26,
-15,
-1,
-41,
-3,
65,
-11,
77,
2,
-26,
-20,
40,
-18,
31,
-11,
-28,
52,
106,
35,
16,
12,
-14,
-31,
0,
0,
49,
-12,
43,
5,
34,
-4,
2,
8,
-15,
35,
68,
-11,
-11,
-47,
-21,
41,
-8,
-55,
-37,
-25,
14,
2,
-11,
-39,
-11,
19,
-28,
-46,
-33,
23,
7,
3,
-46,
-9,
-52,
-6,
-6,
46,
2,
-19,
38,
0,
-22,
-12,
-21,
14,
53,
-2,
-26,
-49,
-2,
30,
-9,
-14,
14,
-22,
21,
-16,
-13,
-52,
23,
-14,
6,
5,
92,
43,
6,
-4,
44,
4,
-16,
8,
-33,
-13,
9,
22,
21,
-11,
-4,
56,
65,
33,
14,
9,
8,
-2,
-6,
35,
-7,
55,
-54,
-37,
-12,
29,
-33,
14,
40,
-30,
-33,
-28,
-22,
11,
7,
-22,
13,
36,
-55,
-28,
-17,
-29,
-15,
-6,
39,
-25,
25,
-1,
-20,
-61,
25,
-5,
-18,
27,
11,
0,
15,
46,
-17,
78,
-27,
-8,
-20,
-63,
-23,
6,
8,
39,
3,
23,
-31,
34,
-35,
-3,
-47,
6,
24,
16,
10,
-24,
-16,
-71,
8,
4,
-37,
6,
12,
-27,
26,
45,
-32,
11,
-23,
50,
-25,
-55,
42,
3,
3,
49,
29,
9,
-5,
-29,
27,
5,
-22,
-38,
3,
-39,
35,
1,
26,
-16,
-18,
-6,
-46,
0,
2,
-15,
-54,
-40,
33,
-3,
-13,
-6,
-62,
-7,
15,
-40,
0,
-20,
1,
-21,
4,
37,
38,
27,
-7,
-18,
17,
-34,
-30,
-10,
12,
0,
12,
-50,
15,
7,
-6,
-25,
10,
-29,
-45,
-39,
42,
14,
25,
10,
6,
-4,
36,
-1,
-2,
-24,
-30,
29,
0,
10,
-25,
-34,
-12,
-12,
-44,
7,
16,
25,
-30,
-16,
-35,
19,
-21,
34,
-19,
47,
-54,
-14,
26,
-51,
-22,
14,
14,
-18,
-14,
51,
10,
59,
-25,
2,
25,
3,
-1,
-21,
56,
-61,
15,
-1,
-1,
-2,
-47,
-33,
-39,
4,
-9,
-24,
-22,
6,
-41,
-31,
0,
16,
-42,
14,
0,
17,
-5,
-20,
6,
31,
39,
-12,
-71,
68,
-54,
-20,
9,
11,
39,
12,
-37,
-8,
-44,
-14,
-21,
-4,
8,
-21,
57,
-70,
-31,
7,
3,
-16,
17,
39,
22,
50,
43,
7,
63,
40,
18,
-11,
-60,
-1,
-49,
-6,
36,
21,
-67,
10,
43,
-34,
13,
20,
-20,
-10,
-42,
-57,
12,
47,
-28,
-7,
-33,
39,
5,
3,
63,
31,
-4,
-37,
40,
-33,
-15,
26,
-30,
-37,
-13,
29,
11,
-29,
-12,
14,
-27,
33,
39,
56,
22,
-15,
4,
-13,
-72,
-49,
-31,
1,
-22,
16,
56,
19,
5,
-32,
0,
-29,
17,
-4,
12,
-46,
36,
-32,
-5,
-22,
12,
34,
-17,
15,
14,
-4,
6,
9,
-45,
-50,
-41,
-2,
39,
50,
-11,
-21,
2,
-47,
-3,
61,
34,
9,
10,
-28,
2,
-22,
0,
13,
61,
72,
2,
35,
29,
1,
0,
9,
3,
-21,
33,
-1,
20,
-13,
15,
18,
-8,
78,
-32,
32,
-36,
12,
29,
-36,
21,
57,
-1,
-38,
27,
18,
-21,
6,
-24,
-8,
-34,
-12,
-23,
-38,
11,
55,
27,
9,
61,
30,
-39,
12,
83,
0,
3,
-2,
-43,
33,
-22,
7,
28,
-5,
-21,
31,
-38,
31,
-37,
-23,
10
] |
Montgomery, J.
The will of Julius Lefevre was congested on the two grounds of mental incapacity and undue influence. At the close of the testimony the circuit judge withdrew the latter question from the jury. The jury found against the will on the ground of mental incapacity, .and the proponents appeal.
1. It is contended that there was no such evidence of mental incapacity as warranted the court in submitting the case to the jury. No good purpose would be served by setting out the testimony at length, but a careful ex.amination of the record convinces us that there was sufficient evidence to justify the submission of the case to the jury.
2. Lucy Renaud was named as one of the legatees in the will, and contestants were'permitted to offer testimony of statements made by her before the decease of Lefevre, to the effect that he (Lefevre) was crazy. This question is ruled by the case of O’Connor v. Madison, 98 Mich. 183, .and cases cited at pages 190-192.
3. Testimony was given by a witness (Henry Knnze) to •the effect that on an occasion not long prior to Lefevre’s death a messenger came to one Charles F. Peltier, a partner of the witness, with a request that he (Peltier) go to-decedent’s boarding house, and draft a will for him; and the witness was further permitted to testify that Peltier declined to go, and gave as a reason that he did not consider Lefevre capable of making a will. This was clearly hearsay of the most damaging kind. It enabled the contestants to give Mr. Peltier’s unsworn opinion to the jury, and this without any statement of the facts upon which it was based. The impropriety of admitting such testimony could not well have been better demonstrated than it was in the present case. Mr. Peltier was himself after-wards called as a witness, and testified that he had no recollection of having talked with Lefevre for some time before his death, and that it might have been five years before he died, and in his sworn testimony did not show that he had any such knowledge as would have warranted the contestants in asking his opinion as to the mental incapacity of the deceased; and yet his unsworn opinion, which must have been based on hearsay, was before the jury.
4. Numerous other errors are assigned, most of which relate to questions which are not likely to arise on another trial,- and which do not, therefore, require discussion. It. is proper to say, however, that in some instances testimony of acts or statements of deceased was admitted, which tended rather to show that he was irritable than incompetent. Of this,class were his expressions of opinion about Fred Moran and Dr. McG-raw. It appears that litigation had arisen in which he was interested and opposed to Mr. Moran, and his expressions as -to Dr. McGraw were expressions relating to his competency as a physician. However ill-judged his expressions may have been, they did not furnish evidence of mental weakness. As was said in Prentis v. Bates, 93 Mich. 234, 243:
“ Where the testimony of the witness only goes the length of showing acts which are entirely consistent with sanity, and which have not the slightest tendency to show insanity, it would be a dangerous rule which would permit his opinion to be received.”
We think the cases cited, and other decisions of this Court, furnish a sufficient guide to- control upon a new trial of the case.-
5. We think it was competent to show the expressed declarations of the deceased as to his intended disposition of his property, even though made a considerable time before the making of the will. It is difficult to fix any precise period as the limit in such cases. Testimony which is said to have had a similar tendency in Fraser v. Jennison, 42 Mich. 206, went no further than to tend to prove the existence of friendly relations between the deceased and his relatives. This testimony, standing by itself, might well have been held too remote, but, in the absence of proof of some change in purpose, the remoteness of time when the expression of such an intention is made bears rather upon the weight of the testimony than its admissibility.
For the errors pointed out, the judgment will be reversed* with costs, and a new trial ordered.
The other Justices concurred. | [
37,
15,
56,
33,
1,
-5,
0,
51,
-53,
6,
-10,
-2,
30,
-4,
-68,
-3,
-24,
-39,
0,
-86,
-8,
-27,
-10,
-6,
0,
-63,
1,
25,
-22,
-18,
103,
6,
-16,
0,
2,
-13,
57,
-13,
7,
-38,
51,
-33,
-14,
6,
0,
-9,
-51,
7,
-18,
10,
11,
-4,
12,
-23,
2,
-23,
8,
16,
-29,
28,
21,
-58,
-3,
-67,
-8,
-30,
-5,
1,
-88,
10,
-39,
-45,
-15,
27,
16,
-22,
-19,
-34,
7,
2,
29,
-42,
32,
-8,
12,
-53,
-21,
-52,
18,
-1,
-21,
-45,
-13,
-3,
-55,
-47,
80,
10,
44,
-54,
-18,
-26,
41,
-24,
1,
41,
-38,
77,
-14,
-29,
-45,
-10,
48,
26,
-67,
-2,
2,
-15,
-22,
0,
-33,
-42,
-8,
3,
20,
-3,
0,
-5,
17,
-5,
55,
41,
14,
7,
-41,
27,
-56,
-33,
6,
-53,
14,
15,
54,
-55,
-84,
-4,
-21,
13,
41,
20,
-31,
-7,
-6,
-40,
-24,
0,
-7,
-74,
51,
43,
60,
31,
-4,
-33,
-24,
-50,
15,
-19,
6,
14,
4,
16,
-16,
13,
-25,
29,
8,
-21,
-24,
6,
6,
49,
-27,
8,
19,
-51,
-29,
22,
-44,
6,
-19,
11,
-32,
4,
20,
5,
-30,
-1,
52,
11,
-17,
34,
-41,
-27,
-6,
41,
-19,
34,
11,
41,
20,
21,
5,
-40,
8,
-44,
-22,
-60,
-46,
8,
-18,
53,
21,
49,
-40,
-47,
27,
39,
-57,
4,
-22,
28,
-40,
0,
3,
-44,
17,
-24,
4,
-20,
-61,
-19,
61,
5,
-1,
-20,
-19,
11,
32,
8,
17,
-15,
-25,
7,
-69,
-9,
0,
-10,
-24,
-44,
-9,
32,
0,
49,
42,
2,
14,
19,
63,
-10,
77,
-61,
-6,
-3,
31,
20,
-25,
23,
-20,
-6,
-11,
12,
-64,
48,
0,
-33,
4,
-6,
-47,
9,
84,
-30,
-13,
-34,
37,
16,
-23,
48,
-7,
-47,
-3,
56,
-20,
38,
-52,
-33,
21,
-30,
19,
-15,
-34,
44,
3,
65,
15,
9,
-30,
-29,
-10,
-18,
-8,
-65,
15,
-33,
23,
-15,
-19,
0,
-35,
62,
7,
47,
27,
-48,
-32,
16,
-18,
-10,
-13,
1,
-20,
-29,
-9,
-34,
-2,
35,
23,
-6,
2,
-37,
11,
-19,
55,
-8,
2,
-23,
60,
20,
6,
17,
-6,
2,
66,
66,
-7,
0,
10,
-6,
47,
0,
0,
-20,
15,
-16,
20,
-8,
20,
-25,
-80,
24,
-55,
9,
27,
28,
-9,
-10,
-39,
9,
-18,
66,
-14,
17,
-13,
14,
4,
75,
3,
-13,
-35,
-29,
-19,
59,
3,
14,
-61,
0,
-55,
-6,
7,
21,
85,
60,
61,
-59,
43,
-42,
28,
-3,
-3,
18,
-15,
15,
72,
44,
-3,
-1,
-15,
20,
24,
-44,
16,
-44,
7,
-30,
-1,
-1,
15,
20,
-25,
34,
-43,
-40,
34,
15,
30,
64,
14,
-51,
20,
-12,
9,
72,
27,
20,
60,
1,
22,
22,
-30,
5,
-1,
-3,
30,
13,
42,
43,
-38,
18,
14,
0,
11,
42,
-22,
17,
-43,
35,
16,
-6,
2,
2,
42,
33,
73,
6,
28,
7,
14,
-34,
-32,
-27,
-4,
-22,
-24,
-5,
-51,
-7,
23,
20,
-15,
-22,
1,
58,
27,
20,
-28,
-54,
60,
-46,
22,
23,
48,
-10,
-7,
60,
-8,
-34,
42,
-36,
-3,
-2,
-55,
25,
-18,
30,
-21,
-33,
-19,
16,
-6,
-68,
8,
61,
17,
-55,
18,
-48,
-6,
1,
0,
28,
-69,
25,
14,
-46,
7,
-48,
3,
55,
46,
24,
5,
-28,
25,
37,
4,
-53,
48,
-36,
7,
-13,
28,
53,
16,
-19,
0,
-69,
14,
19,
33,
-29,
-31,
13,
21,
43,
-49,
13,
10,
47,
24,
-13,
12,
1,
2,
-15,
-9,
-4,
-17,
-39,
-13,
4,
37,
-27,
-17,
-17,
-51,
-42,
-2,
46,
18,
48,
-4,
18,
26,
-8,
-34,
3,
2,
-58,
52,
-11,
29,
19,
2,
-27,
-29,
60,
3,
-45,
-19,
48,
16,
33,
19,
6,
-36,
-44,
-17,
-6,
3,
0,
6,
13,
-24,
31,
-33,
56,
-18,
-2,
-42,
-9,
-21,
4,
4,
-15,
2,
2,
-3,
-27,
-13,
-34,
-2,
-23,
11,
-29,
16,
-12,
50,
-8,
34,
1,
32,
20,
-37,
-27,
19,
71,
27,
10,
-50,
28,
49,
9,
-9,
-2,
-12,
-50,
3,
-16,
16,
67,
0,
8,
-15,
42,
7,
39,
-4,
55,
17,
30,
2,
0,
27,
-1,
-34,
0,
23,
-25,
22,
-22,
-6,
48,
14,
28,
-45,
-23,
17,
-3,
-50,
36,
1,
11,
-5,
62,
-25,
-45,
-14,
-34,
27,
-8,
-22,
-19,
33,
21,
-6,
27,
49,
22,
-6,
20,
-3,
12,
-52,
7,
20,
35,
6,
-15,
37,
11,
-40,
-17,
3,
16,
-1,
-44,
37,
-36,
35,
-2,
-28,
35,
13,
0,
-6,
-21,
2,
79,
-39,
-44,
9,
16,
-71,
-83,
-49,
18,
-5,
14,
-26,
18,
-13,
-6,
-32,
-24,
-58,
0,
10,
7,
55,
15,
-47,
0,
-42,
-17,
60,
-33,
4,
11,
3,
14,
-1,
-38,
-64,
100,
-15,
-19,
-23,
-56,
51,
33,
-21,
3,
-10,
65,
5,
-8,
-28,
42,
-22,
23,
8,
-6,
-33,
-20,
-40,
-17,
45,
-32,
19,
5,
44,
-3,
28,
-28,
10,
41,
-5,
-13,
26,
-53,
4,
-51,
23,
32,
52,
5,
3,
35,
-40,
-36,
10,
-9,
8,
28,
22,
-58,
-58,
11,
-2,
4,
26,
48,
25,
17,
-52,
-75,
6,
-26,
22,
20,
-30,
-8,
4,
-46,
19,
40,
-7,
12,
66,
-28,
-22,
6,
-50,
-59,
-10,
48,
-7,
2,
-56,
21,
41,
-24,
-54,
9,
3,
21,
94,
-33,
3,
-4,
65,
-3,
4,
-11,
-32,
-33,
25,
-18,
16,
7,
-10,
-44,
-15,
-14,
26,
-36,
8,
84,
61,
-28,
31,
-32,
7,
-37,
20,
39,
7,
45,
5,
-7,
5,
36,
45,
9,
-14,
-11,
-20,
-41,
-11,
12,
14,
0,
11,
-63,
3,
-2,
-13,
-1,
-38,
-9,
60,
-25,
-13,
10,
-1,
28,
1,
-18,
5,
3,
32,
7,
-9,
17,
-1,
28,
4,
-32,
-30,
33,
-17,
3,
15,
23,
27,
31,
-5,
3,
-20,
19,
-21,
9,
5,
-4,
-38,
7,
35,
-64,
-22,
-14,
-17,
8,
0,
-1,
16,
-35,
-41,
21,
-15,
-87,
-19,
7,
-42,
8,
-10,
63,
-26,
-42,
11,
5,
-51,
-32,
15,
36,
69,
26,
12,
3,
-39,
-65,
-44,
-35,
-65,
20,
-35,
2,
35,
-3,
-6,
4,
-3,
5,
32,
40
] |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.