Complainant's Land claimed a lien on them for services rendered to defendant, an order appointing a receiver to take possession of the securities during the pendency of the suit is interlocutory and discretionary, and an appeal will not lie. Action by John T. R. Brown, as assignee of Huff & Vandermeulen and of Peter Vandermeulen, against Peter Vandermeulen and others, to set aside as in fraud of creditors certain conveyances made by Vandermeulen to his wife, and also to set aside certain securities held by Mrs. Vandermeulen. An order was obtained by Mrs. Vandermeulen appointing a receiver to take possession during the pendency of the action of the securities, which were then in the possession of defendant Robert Brown; said Brown claiming a lien on them for services as Peter Vandermeulen's agent. Defendants move to dismiss plaintiff's appeal taken from the order appointing the receiver. Appeal dismissed. Defendants' Land /// The decree of the circuit court will be reversed, without cost to either party. The case will be remanded to the court below to take further proof to be made of the general line of navigable water 15 feet in depth, as indicated above, and proceed to decree in accordance with the method above described. We do not think this is a case for imposing costs on either party in this court or in the court blow. GRANT, J., did not sit. The other justices concurred. John R. Webster and A. Russell, for plaintiff. W. M. Lillibridge and C. I. Walker, for defendants. PER CURIAM. The order falls within the ordinary powers of a court to take possession of a fund in controversy, especially where it is claimed by a trustee who has no personal interest. Complainant could not be injured by the appointment of a receiver; it is the purpose of his bill to reach the securities. Robert Brown is only interested in his claim for money due for services, and this would not suffer from putting the property into the court's hands. By the order obtained by complainant and himself, which authorized him to continue his possession, in an early stage of the cause, he was practically acting as receiver himself, and the appointment of another is not much more than a change of receiver. His alleged insolvency, on which the court below had a right to act, would of itself be sufficient reason for taking the trust out of his hands, if the fact was established. The order, being interlocutory, and discretionary, is not appealable. Appeal dismissed, with costs of the motion. PEOPLE ex rel. MALTZ v. BOARD OF EDUCATION OF WILSON TP.2 (Supreme Court of Michigan. Oct. 8, 1879.) SCHOOL-DISTRICTS-DIVISION-APPORTIONMENT OF DEBT. A school-district of the township of A. was divided into three new districts, which fell in separate townships, (A., B., and C.;) and it was provided that the new district of A. was to be liable on the orders of the original district, and that the two new districts of B. and C. should pay their proportion to the board of education of the township of A. Held, that the owner of an order of the original district of A. could not maintain mandamus to compel the new districts of B. and C. to pay their proportion of the order; his cause of action being entirely against the new district of A., to which the shares of the other two districts were payable. This case, filed October 8, 1879, is now published by request, with others, in order that the Northwestern Reporter may cover all cases in volume 41, Michigan Reports. Application by George L. Maltz for mandamus to the board of education of Wilson township to pay a portion of certain orders of school-district No. 1 of Alpena township. School-district No. 1 of Alpena township was divided into three new districts by a change of township lines, so that one of the new districts remained in Alpena township, one was in Wilson township, and the other was in still a third township. In the division of the original district it was provided that the new district of Alpena should be liable on all the orders of the original district, and that the other two new districts should pay their proportion of such orders to the board of education of Alpena. J. D. Turnbull, for relator. PER CURIAM. Relator has mistaken his remedy. The school-district of Alpena is entitled to have the money paid to itself, and this is an indirect way of collecting his claim against a district with which he never contracted. He must get his redress through the instrumentality of the Alpena district, and that district is the only party having a claim against the new one. Mandamus denied. PEOPLE ex rel. MCMAHON V. BOARD of Where a judgment imposing a fine is reversed after defendant has paid the fine in order to avoid imprisonment, mandamus will lie to the board of auditors to refund the fine. Application by Bartholomew McMahon for mandamus to the board of auditors of Wayne county to refund a fine which had been imposed on relator, and which he paid in order to avoid imprisonment. After relator paid the fine, the judgment imposing it was reversed on appeal. James H. Pound, for relator. Charles E. Miller, for respondent. No opinion. Application granted. PEOPLE ex rel. GERMANIA FIRE INS. Co. v. NEWAYGO CIRCUIT JUDGE.2 (Supreme Court of Michigan. July 1, 1879.) DISCOVERY-TO PREPARE DEFENSE. The An insurance agent executed a bond payable to several companies conditioned for the faithful discharge of his duties as agent of such companies. Afterwards one of the companies sued the agent and his sureties on the bond. sureties filed a petition alleging that the several insurance companies named in the bond were doing business under a contract between them, that the contract was material to enable defendants to prepare their defense, and that they endeavored to procure the contract or a copy thereof from the agent (the principal in the bond sued on) and from plaintiff company. The application was resisted by an affidavit made by plain 'This case, filed June 17, 1879, is now published by request, with others, in order that the Northwestern Reporter may cover all the cases in volume 41, Michigan Reports. This case, filed July 1, 1879, is now published by request, with others, in order that the Northwesteru Reporter may cover all cases in volume 41, Michigan Reports. tiff's state agent, denying the existence of the contract, but such affidavit was evasive, and it did not appear that the agent could have known whether the contract was made between the companies. Held, that the court properly ordered plaintiff to produce the contract. Application by the Germania Fire Insurance Company for mandamus to the circuit judge for Newaygo county to vacate an order to produce certain papers. Denied. Smith, Nims & Erwin, for relator. Keating & Allen and Edwin Potter, for respondent. The The COOLEY, J. This is an application for a mandamus to compel the circuit judge to vacate an order requiring the relator to produce certain papers to enable the defendants in a suit brought by relator to prepare for their defense. The suit was brought upon a bond given by Alpheus G. Smith as principal, and Jonathan Boyce and Charles D. Nelson as sureties, to the Germania Fire Insurance Company, the Hanover Fire Insurance Company, the Niagara Fire Insurance Company, and the Republic Fire Insurance Company, all of the city of New York, and by which the obligors bound themselves in the sum of $500 to each of said insurance companies, conditioned for the faithful discharge by Smith of the duties of agent to each of said companies, and his faithful accounting for moneys received. The breach alleged was a failure on the part of Smith to account to relator for moneys received by him as such agent for relator. sureties alone appear and defend. petition upon which the order to produce papers was made set forth, among other things, that the four insurance companies named in the bond constituted the Underwriters' Agency of New York, under an agreement or contract between them, which agency ceased January 1, 1874, when a new arrangement was made between said Germania Fire Insurance Company and said Hanover Fire Insurance Company, which companies associated themselves together under the name of the "New York Underwriters' Agency," and that said Smith was made the agent of the new agency. It is then averred that the paper, writing, agreement, or contract by which the said Underwriters' Agency of New York was created, and also that by which the said New York Underwriters' Agency was created, are material to enable them to prepare for their defense; that they have endeavored to obtain the same, or copies thereof, from Smith, the principal in their bond, and from the plaintiff in the suit against them, detailing various proceedings taken by them for the purpose, all of which have proven ineffectual. And they pray for an order of the same, or sworn copies thereof, for court compelling the plaintiff to produce their inspection. The circuit judge, on due notice and hearing of the parties, made the order prayed for. On a subsequent day the circuit judge allowed the plaintiff to move on new papers for an order vacating the order made on the petition. In support of the motion, plaintif produced the following affidavit: "[Title of or the cause, and venue.] Merwin F. Collier, being duly sworn, depuses and says that since 1864 deponent has been state agent for the state of Indiana of said Hanover Fire Insurance Company; that he is now the state agent for said state of Indiana for said plaintiff; that he is also, and has been since January, 1878, the state agent of said plaintiff for the state of Michigan; that he makes this answer on behalf of said plaintiff to the order of the court made in the above-entitled cause on the 20th day of May, 1878, to discover and serve sworn copies of certain contracts in said order described, to-wit, a contract agreement constituting the Underwriters' Agency, and also a contract or agreement constituting the Underwriters' Agency of New York. Deponent says that there never was made by or between the Germania Fire Insurance Company and Hanover Fire Insurance Company and Niagara Fire Insurance Company and the Republic Fire Insurance Company, respectively, of the city of New York, any agreement or contract creating the Underwriters' Agency aforesaid in the year 1864, or at any other time, but that each company, respectively, acts and contracts for itself in all its bonds and policies, and not one for the other or others. Second. That there never was a contract or agreement made by or between the Germania and Hanover Fire Insurance Companies, respectively, of New York, establishing the Underwriters' Agency of New York, in 1871, or at any other time, but that each company acts and contracts for itself in all its contracts, bonds, and policies, and not one for the other or others. Deponent further says that there are no contracts between the said companies of the kind ordered produced, or of any other character, that in any manner limit or affect the bonds on which suit is brought, or in any manner affect the liability of the sureties thereon. Deponent further says that he has authority to make and makes the foregoing disclosure on behalf of the said company; that he has knowledge of the facts contained therein; and that the same are true." The circuit judge declined to vacate his order. The objections to the order which have been urged before us may be summed up as follows: (1) There is no suflicient showing that such papers as are called for ever existed. (2) If a prima facie case had been made out, still the court would not order their production by a party who does not admit having them in his possession. (3) Nor would it order papers produced in which third parties are interested, as appears to be the case here, if any such papers exist. (4) The proper method of procuring such papers is by subpœna duces tecum. (5) It is sufficiently shown by Collier's affidavit that no such papers are in existence. (6) If there were such papers, they would not concern the defendants. They are interested only in the dealings of Smith with the plaintiff, and not at all in the dealings of the several insurance companies with each other. We are of opinion that the circuit judge decided correctly the motion which was made. If the papers called for are in exist ence, we can well see that they may be very important to the defense. Smith was employed at first by four companies, and afterwards by two, under an arrangement to which all were parties, and it is not to be assumed that the joint arrangement between these companies was one that could not affect the accounting with the companies severally. Nor do we think the court must refuse to order the papers produced merely because the plaintiff does not admit their existence. The petitioner furnished some evidence that there were such papers, and the suggestion that the companies would have between themselves an arrangement so important, without expressing its terms in writing, is so incredible that we think the officers of the plaintiff were fairly called upon to make some explanation before they should ask the court to disregard such evidence as the petitioner had produced. The affidavit of Collier is not satisfactory. In the very nature of the case, it was impossible that he should be able to testify of his own knowledge that no such papers were made, and we look upon his affidavit as being inten tionally made evasive. The interest of the other insurance companies in the contracts is no reason for their not being produced. They were parties to the bond also, and are apparently privies to all the dealings to which the bond relates. Nor is it a sufficient answer to the petition that the facts might all have been brought out by calling the proper parties as witnesses. The plaintiff is a foreign corporation, and we think it but justice that these papers should be produced here, that defendants may know what their legal obligations upon the papers were before going into the trial. There is no injustice whatever in such course, and, as the court here will have ample power to enforce its order, or to stay or dismiss the suit on non-compliance, that will avoid all questions that might arise as to the power to compel the production of the papers in a foreign_jurisdiction on subpœna duces tecum. The mandamus is denied, with costs. The other justices concur. PEOPLE ex rel. FITZGERALD, Mayor, v. Mandamus will not lie to compel the members of a city council to attend the meetings thereof. Application by Emanuel Fitzgerald, as mayor of the city of Port Huron, for mandamus to compel the members of the city council to attend the meetings thereof. Denied. William T. Mitchell, for relator. PER CURIAM. A mandamus would be entirely inefficient in reaching the mischief complained of, as no court, by such means, could keep up a continuous or repeated attendance. Courts are not created to This case, filed October 8, 1879, is now published by request, with others, in order that the Northwestern Reporter may cover all cases in volume 41, Michigan Reports. conduct the municipal affairs of cities, and nothing short of any such general supervision would reach such cases as the pres ent. The remedy, if there is one, is not ju dicial. This is not a case where there is some specific right involved, but is a gen. eral violation of public duty. Mandamus denied. PEOPLE ex rel. GREENWOOD SCHOOL-DIST. V. ST. CLAIR CIRCUIT JUDGE.1 (Supreme Court of Michigan. Oct. 8, 1879.) NOTICE OF TRIAL SERVICE BY MAIL ON PARTY. A notice of trial of an appeal case in the circuit court, served by mail on a party who appeared in person, is sufficient. Application by the Greenwood schooldistrict for mandamus to the St. Clair circuit judge to vacate an order directing a cause to be stricken from the docket. The order was made on the ground that the service of notice of trial, which was sent by mail to the party, was insufficient. The party had appeared in person. Granted. Charles R. Brown, for relator. No opinion. Application granted. PEOPLE ex rel. AUSTIN et al. v. Curtis, Register of Deeds.2 (Supreme Court of Michigan. Oct. 21, 1879.) MANDAMUS TO REGISTER-Deed Held IN ESCROW. A deed was placed by the grantor in the hands of the register of deeds in escrow, with the understanding that the deed should become operative, and that the register should record it, on the performance by the grantee of certain conditions. Afterwards the grantor notified the register not to record the deed. Held, that mandamus would not lie on behalf of the grantee to compel the register to record the deed, but the right of the grantee to a delivery of the deed must first be determined in a proceeding against the grantor. Application by Lyman Austin and others for mandamus to Orrin S. Curtis, as register of deeds of Kalkaska county, to record a deed. The deed in question was placed in the hands of respondent in escrow, and not in his official capacity, with the understanding, as alleged, that.he should record the deed when certain conditions should have been performed by the grantees. Afterwards the grantor gave notice to respondent that he should not record the deed. Mandamus denied. Taggart & Wolcott, for relators. Fallas & McIntyre, for respondent. PER CURIAM. The return shows, and the case made by relator is to the same effect, that the respondent did not receive the paper officially, but as a private person, to hold it in escrow. Delivery and record having been forbidden by the grantor, respondent cannot be compelled to decide upon the rights of grantor and This case, filed October 8, 1879, is now published by request, with others, in order that the Northwestern Reporter may cover all cases in volume 41, Michigan Reports. This case, filed October 21, 1879, is now published by request, with others, in order that the Northwestern Reporter may cover all cases in volume 41, Michigan Reports. grantee, and any controversy between them must be settled in a proper suit in which he would have no personal concern. He never had possession of the document in his official capacity, and has no official duty to perform concerning it. The grantor had no notice of this motion, and no relief could, under any circumstances, be granted against her interest in a proceeding to which she is not a party. But, inasmuch as the real dispute is concerning the grantee's right to the conveyance, a mandamus would not be a suitable form of remedy to determine such a controversy between private parties. The relator must resort to a bill in equity, or such other remedy as may be thought proper, in the usual course of proceeding. The mandamus must be denied, with costs. An order granting a new trial on the ground that the trial judge discovered after judgment that he had an interest in the matter in controversy is not reviewable on appeal. Application by Abraham Alderman for mandamus to the Montcalm circuit judge to vacate an order setting aside a judgment and directing a new trial, which order was granted on the ground that the circuit judge had discovered that he had such an interest in the matter in controversy as disqualified him from trying the case. Denied. Champlin & More and W. O. Webster, for relator. PER CURIAM. The judge acted properly in setting aside the judgment if there was any question as to his interest in the case. He has a right to grant new trials in the exercise of a fair discretion, and we are not disposed, in the exercise of our own discretion, to inquire whether his interest was such as legally to disqualify him. He acted wisely and honorably in yielding to the doubt, and we shall not interfere. Motion denied. PEOPLE ex rel. McDowD v. WAYNE CIRCUIT JUDGE.8 (Supreme Court of Michigan. Oct. 8, 1879.) SECURITY FOR COSTS-TRIAL BEFORE COMMISSION ERS. Security for costs cannot be required in cases appealed from a circuit court commissioner, as the statute requires it only in actions begun in the circuit court. Application by Eleanor Dowd for mandamus to compel the Wayne circuit judge, who had fixed the security for costs at $25, to require full security on the ground that plaintiff was a non-resident. Denied. James T. Keena, for relator. This case filed October 8, 1879, is now published by request, with others, in order that the Northwestern Reporter may cover all cases in volume 41, Michigan Reports. PER CURIAM. There is no statute requiring a circuit judge to exact security for costs in cases appealed from before a circuit court commissioner on summary proceedings. The statute only requires it in civil actions begun in the circuit court. It was therefore at most discretionary with the judge to call for any security, and his action cannot be reviewed. Motion denied. PEOPLE ex rel. WONDERLY V. KENT CIRCUIT JUDGE.1 (Supreme Court of Michigan. Oct. 21, 1879.) RETURN-DAY OF CAPIAS-SUFFICIENCY. A capias which directs the sheriff to bring the person named therein before the court "on the seventh day of October, A. D. 1879, that being the first day of the next succeeding term, sufficiently shows that it is returnable on the first day of the next term of court, though such term does not begin on October 7th. Application by Joseph H. W. Wonderly for mandamus to the Kent circuit judge to set aside a capias on the ground that it was not returnable to the first day of the next term of court. The day in which the next term succeeding the issuance of the capias was to begin was October 6, 1879, while the capias required the sheriff to bring relator before the court "on the seventh day of Otober, A. D. 1879, that be ing the first day of the next succeeding term." Denied. PER CURIAM. The capias shows plainly on its face that it was intended to be returnable on the first day of the term, which is the only day on which it could be made so. Having such a recital in it, the writ fur. nished the means of its own correction, and the erroneous mention of a wrong day of the month should not vitiate it. One or the other day being incorrect, it must be held that the intention was to make the writ returnable on the day which would be legal. The writ, therefore, was valid. Mandamus denied. PEOPLE ex rel. LOTHROP v. BOARD of PUBLIC WORKS. 2 (Supreme Court of Michigan. Oct. 22, 1879.) ADMINISTRATORS-PLAT OF DECEDENT'S LAND. An administrator is not the owner of his decedent's land within Comp. Laws Mich. c. 32, providing that the owner of land may plat the same and lay out streets thereon, nor is he authorized to make such plat by a license from the probate court to sell the decedent's land. Application by Charles B. Lothrop as administrator, etc., for mandamus to the board of public works of Detroit, to approve a plat of land made by relator. Denied. Charles B. Lothrop, for relator. 'This case, filed October 21, 1879, is now published by request, with others, in order that the Northwestern Reporter may cover all cases in volume 41, Michigan Reports. This case, filed October 22, 1879, is now published by request, with others, in order that the Northwestern Reporter may cover all cases in volume 41, Michigan Reports. PER CURIAM. Relator, who is special administrator of the estate of Denis J. Campau, and has procured a probate license to sell lands of the estate, applied to the board of public works to sanction a plat which he wished to complete according to the statute, so as to have the property disposed of in lots and blocks, with streets regularly laid out and dedi. cated. The plat was laid out so as to accord with their views as to the proper location of streets, and was made to harmonize with the general plan which had met their approval. They declined to give it their official approval on the ground that relator had no legal authority to make the dedication. In this we think they were right. Under the statutes, (Comp. Laws, c. 32; 1 Sess. Laws, 1873, p. 142,) no plat can be made except by the proprietor. Lee v. Lake, 14 Mich. 12. When properly executed and acknowledged, it operates to create interests and burdens which none but the owner can establish, and is for those purposes a conveyance. An administrator is in no sense the owner of the land of his intestate. The only authority he possesses is such as his license gives him, and it is in the nature of a power, and not a proprietary interest. There may be cases in which it would be convenient to have lands laid out before a probate sale. No way occurs to us as That legal except the method sometimes resorted to of making sales by boundaries running with the centers of streets, and so arranged as to conform to the streets and alleys to be opened under public authority, so far as they can be ascertained. practice is frequently resorted to in probate sales and partitions, and, if approved by the court, would seem to be unobjectionable. But an administrator cannot make a statutory plat. The mandamus must be denied. PEOPLE ex rel. DE Moss v. VAN BUREN CIRCUIT JUDGE.3 (Supreme Court of Michigan. Oct. 22, 1879.) BILL OF EXCEPTIONS-Settlement AND SIGNING. A party who has completed and furnished his bill of exceptions in due time for its settlement, as required by the orders of the court, cannot be deprived of his right to have it settled by the failure of the judge or of the adverse party to have it regularly completed at the appointed time. Application by Jonah De Moss for mandamus to the circuit judge for Van Buren county to settle relator's bill of exceptions. Granted. Chandler Richards, for relator. E. R. Annable, opposed. PER CURIAM. The party who prepared the bill of exceptions having done all in his power to comply with the various or ders made for its settlement, and having completed and furnished his bill in due time for that purpose, he cannot lawfully be deprived of his right to have it settled and signed, by any failure of the judge or This case, filed October 22, 1879, is now pub lished by request, with others, in order that the Northwestern Reporter may cover all cases in volume 41, Michigan Reports. |