Volume 1 — Michigan Probate Reports

Relator applied for mandamus to compel tlie respondent to vacate certain proceedings resulting in the forfeiture of his recognizance to appear at the Circuit Court and answer to an information to be filed against him for assault and battery, the issuance of a capias for his arrest, and the requirement that he enter into a new recognizance for his appearance. An order to show cause was denied.

Relator applied for mandamus to compel the respondent, among other things, to reinstate relators appeal from a justice’s judgment and try the same, for the reason that the justice', of the peace by his statements made to relator’s husband prevented her from perfecting her appeal. An order to show cause was denied. u Cited in support of tion How.

Relator applied for mandamus to compel the respondent to set aside a verdict,, and reinstate the case for trial, and on a, retrial permit the relator to make and put in the defense set up in his special notice of defense, in the usual way. An order to show cause was denied.

Relator applied for mandamus to compel respondent to hear and decide upon the merits the ease made by her bill, filed to remove the cloud. created upon her homestead by an execution levy. An order to show cause was denied, appeal being the proper remedy. 1.

Mains & Mains contra, contended: 1. That the court had no power to grant the application; that the showing made by the defendant did not bring the case within 3 How.

Delators applied for mandamus to compel the respondent to vacate an order granting a rehearing, on the petition of the Auditor General in the matter of his petition for the sale of lands, in Muskegon County, delinquent for the taxes of 1893. An order to show cause was denied.

Relator ..applied for mandamus to coinpel the respondent to vacate an order placing the issue framed in a quo warranto proceeding, -brought to test relators title to the office of Supervisor on the calendar, and setting a day for the, trial thereof during the then term of court without service of notice of trial, as provided for by How. Stat.'§. 7561. Ah order to show cause was denied. 1.

. Belator applied for mandamus to compel the respondent to set aside an order dismissing a case commenced by relators husband, in his life time, to recover the value of property destroyed by the alleged negligent setting of fire by the defendant, said case having been revived in relator’s name, as executrix, and to reinstate the case. An order to show cause was denied, error being the proper remedy.

Relator applied for mandamus to set aside an order to hold- to bail for the reason that the affidavit showed no cause of action to justify the arrest of the relator. An order to show cause was granted and on the hearing, on petition and answer, the application was denied.

Relator sought to compel the respondent by mandamus to quash a writ of capias ad respondend/um on the ground that the return day was more than three months after the teste day; that the first day of the next term of court fell within said three months, which date should have been the return day under 3 How.

Relator applied for mandamus to compel the ■ respondent to vacate an order granting a new trial. An order to show cause was denied. .

Relator applied for mandamus to pompel respondent, to dismiss, a casé commenced by declaration .for failure to enter a rule to plead as. required by the-statute. ■ .

<p>Motion by defendant Ketchum for a of Supersedeas to stay execution. The facts are stated below.</p>

Relator applied for mandamus to compel the respondent to vacate an order requiring him on being subpoenaed and paid his legal fees to appear and testily under said statute. An order to show cause was denied.

The appellee moved to dismiss the writ of error, issued in this case, the time for the return of _which had been extended by one of the circuit judges of the county of Kent, but not the one before whom the ease was tried, after the refusal of the trial judge to hear an exparte application for such extension of time. The motion was denied. 1. That no notice of said application was required. 2.

Relator applied for mandamus to compel tlie respondent to settle a bill of exceptions. An order to show cause was made, and on the hearing on petition and answer, the application was granted.

The relator applied for mandamus to compel the respondent to vacate an order dismissing, on the motion of the garnishees, the garnishment proceedings instituted against them because of the laches of the plaintiff in failing for more than one year after the entry of judgment against the principal defendants, to bring the statutory issues to trial. An order to show cause was denied.

Relator applied for mamlamus to compel respondent to vaeate an order denying his motion in arrest of judgment,’ and to grant the same, as also a new trial. An order to show cause was denied. 1.

Relators applied for mandamus to compel the respondent to' dismiss an appeal from the allowance of a will, because of the failure of the appellant to file in the circuit court within thirty days after such appeal was taken, the certified transcript required by 3 How. Stat. § 6782 to be filed in said court. An order to show cause was made, and on the hearing on petition and answer the application was denied. 1.

Motion by appellee to dismiss writ of error for failure of appellant to serve copy of brief. Granted unless in five days the appellant pays an attorney fee of $10. Case to stand for hearing at present term.

<p>Notice of hearing — Whén case in condition for.</p>

Motion to dismiss appeal for failure to file statutory bond, and give notice of perfecting appeal. Granted, unless appellant liles a new bond in 20 days, duly approved as required by statute. 1. That How.

Relators applied for mandmms to compel respondent to settle and certify to the evidence in a chancery case in narrative form under Act No. 186, Laws of 1895, notwithstanding the decree sought to be appealed from was entered prior to said act taking effect. An order to show cause was denied. 1.

Motion to strike ease from docket for failure of appellant to seasonably serve copy of brief. Granted. 1. That under the rule the appellant’s brief should be served at least one full day before the case is placed on the calendar for hearing; that in this case a copy of said brief was served upon the attorney for the appellee on April 11, 1896, which was a sufficient service; citing Powers Practice, 276.

Relator applied for mandamus to compel the respondent to dissolve a preliminary injunction restraining the collection of a judgment at law. An order to show cause was denied. 1. That relator bases its claim to relief solely on the grounds that the injunction was granted without notice, and that there is no equity in the bill. 2.

Kelator applied for mandamus to compel respondent to correct the record by striking out the word “no” and inserting the word “yes” as the answer of the jury to a special question submitted to them. An order to show cause was denied, error being the proper remedy.

Relator applied for mandamus to compel the respondent to vacate the judgment entered in favor of the defendant, and enter a judgment for the relator upon the verdict rendered in his favor. An order to show cause was denied, appeal being the proper remedy. 1.

Relator applied for mandamus to compel the respondent to transfer a probate appeal from Wayne county to Washtenaw county for trial, on the ground that the wife of one of the circuit judges of Wayne county was interested in the subject matter of the suit. An order to show cause was denied. 1. That the intent of the Legislature in enacting How.

Delator applied for mandamus to compel respondent to vaeate an order denying liis petition as plaintiff in certiorari to file an amended bond, and granting tiro motion of tlio defendant in certiorari to dismiss the writ on the ground that it was issued before tho required bond had been presented to the clerk. An order to show cause was denied. * 1. That respondent based his decision upon How.

Relator applied for mandamus to compel respondent to settle and sign a chancery decree in accordance with the decision as orally announced by the court, and taken down by the court stenographer. An order to show cause was denied. 1.

Relator applied for mandamus to compel the respondent to set aside an order vacating a judgment entered as of the date of its announcement, but in fact entered at a later date, a reguest for findings of fact and law having been filed in the interim. An order to show cause was denied. 1.

Motion by appellee for the entry of judgment in the Supreme Court against surety after the affirmance of the judgment appealed from. Granted.

Motion by appellees to strike case from docket for failure of appellant to serve copy of record and brief within the time fixed by Supreme Court Rule No. 59. Denied.

Relator applied for mandamus to compel tho respondent to vacate an order for temporary alimony made upon the petition of an infant defendant. An order to show causo was denied. 1.That the order directing the payment of' alimony and expense money is void because not entered with jurisdiction; citing How.

The defendant moved for an order extending the time for suing out a writ of error, and directing that the writ of error already issued should stand as the writ in the case. Denied. 1. That 3 How.

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

<p>Chancery appeal — Dismissal op for want of prosecution.</p>

Motion to dismiss writ of error because no final judgment had been entered in the case, the judgment sought to be reviewed having been rendered on overruling defendant’s plea of a former adjudication of the same controversy, .and directing that the case stand for trial on the merits. Granted.

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

Relator applied for mandamus to comBateite» respondent to vacate an order granting'.a, new trial in an action of ejeetment bkeugjjfchy, relator, and reinstate the- judgment, rendered in her favor. An order to show cause, was denied, the Court not attempting to pass upon the merits of the question raised, but holding that it was discretionary with the lower court to grant a new trial. 1.

Relator applied for mandamus to compel the respondent to vacate and set aside an order dissolving a preliminary injunction issued by a circuit court commissioner of Muskegon county to restrain the collection or attempted collection hy distress of any of the taxes for the year 1895 assessed and levied against relatqr or against his property in the city- -of North Muskegon.

Relator applied for mandamus to compel the respondent to vacate an order overruling relator’s special appeal from a judgment rendered against him in justice’s court as defendant in an action of replevin. Order to show cause was denied February 18,1896. 1. That the affidavit does not comply with the statute, and is within Phenix v. Clark, 2 Mich. 327; MeGlaughry v. Crateenberg, 39 111. 117; Railroad Co. v. Andrews, 53 Id. 177. 2.

delators applied for mandamus to compel the respondent clerk to make, issue, and deliver to relators, and the respondent chairman to countersign an order or voucher on the treasurer of Cheboygan county in the usual form for the sum of $875, being the amount allowed relators by the board of supervisors of said county for their services as architects in preparing plans and specifications for a county court house.

Relators applied for mandamus to compel the respondent to vacate an order made on filing the statutory bond staying proceedings pending settlement of bill of exceptions, the appellant claiming the right to take out a writ of error at any time during the statutory year.

Defendant Lyon moved to dismiss the appeal of complainant and' of Sybrant Wesselius and Daniel E. Corbitt, sureties on complainant’s bondf or costs, for want of prosecution. Granted February 26, 1895.

Relator applied for mandamus to compel the respondent to allow to relator, as a part of the costs taxable in his favor as plaintiff on the continuance of the case on application of the defendants, fees as a witness. An order to show cause was denied February 18, 1895. 1.

Relator applied for 'mandamus to compel the respondent to vacate a judgment in a personal injury case entered nunc pro tunc for the amount of the verdict, a year and a half after its rendition. An order to show cause was granted, and on February 26, 1895, after a hearing on petition and answer, the writ was granted. 1.

Relator applied to the Wayne circuit court for mandamus to compel respondent to audit relator’s claim for certain Jnes and costs collected on convictions in the police court of Detroit for the violation of city ordinances, and by mistake of the clerk of said court paid to the treasurer of Wayne county instead of to the eity treasurer of Detroit, as required by the city charter.

Relator applied for mandamus to compel the respondent to vacate an order overruling its special appeal from a justice’s judgment, and enter an order reversing said judgment. An order to show cause was denied March 12, 1896. 1.That How.

Relator applied for mandamus to compel the respondent to vacate an order denying the motion of relator for retaxation of plaintiff’s costs in the case of Silas Osborn v. Relator, lately pending in respondent’s court, and for such other order as justice might require. An order to show cause was denied March 12,1895.

Relator applied for mandamus to compel the respondent to give the statutory notice of the election of a circuit judge at tire spring election in 1896. An order to show cause was granted, and at the hearing had March 3, 1896, the application was denied, the Court holding that said election was not a general election.

Motion by plaintiff and appellee to dismiss writ of error for want. of prosecution. Granted March 24, 1896, unless the defendants and appellants pay to the plaintiff’s attorneys an attorney fee of $15 forthwith, and consent that the case stand for hearing at the April, 1896, term of Court. 1.

Petition of William H. Moyer for writ of certiorari to review habeas corpus proceedings instituted to secure his release from arrest under a capias ad respondendum issued at the suit of Samuel 1. Johns from the circuit court of Grand Traverse county. Writ denied Marché, 1896. contended that the circuit court erred in dismissing the habeas corpus proceeding, and in holding the affidavit to hold to bail sufficient for the reasons: 1.

Relators applied for mandamus to compel the respondent to dissolve an injunction issued at the suit of an attaching creditor to restrain the foreclosure of certain chattel mortgages held by the defendants on the attached property, the amount of which had been] tendered by the complainant to defendants and an assignment of the mortgages demanded. An order to show cause was granted, and on the hearing had June 30, 1896, on petition and answer a writ of mandamus was issued. 1.

Relators applied for mandamus to compel the respondent to vacate orders dismissing, on the motion of the garnishees, certain garnishment proceedings instituted against them, because of the laches of relators in bringing the statutory issues to trial. An order to show cause was granted, and on the hearing had October 13,1896, on petition and answer a writ of mandamus was denied. . 1.

Relators applied tor mandamus to compel the respondent to vacate an order dismissing garnishment proceedings for failure of relators to bring statutory issue to trial. An order to show cause was granted, and on the hearing had October 20,1896, on petition and answer a writ of mandamus was denied. 1.

Eelators applied for mandamus to compel the payment to him of a portion of his salary as prosecuting attorney, which, by order of the respondent board, had been deducted from his yearly salary as theretofore fixed by said board, by reason of relator’s absence from the State on account of ill health and consequent inability to perform for a time the duties of his said office, which duties under an arrangement made by him were performed by other attorneys, whose bills therefor…

Relator applied for mandamus to compel the respondent to set aside a judgment of non-suit entered in an action brought against a railway company to recover damages sustained by relator by reason of the negligent setting of fire by the defendant upon its right of way, which communicated to and destroyed plaintiff’s property, because of .the failure of the plaintiff to furnish a bill of particulars showing the amount of damages claimed for each item or kind of property alleged…

The respondent petitioned for a writ of certiorari to review the order of the circuit court of Gogebic county granting relator’s application for a mandamus to compel respondent to serve a warrant, issued on her complaint, for assault and battery, the respondent named in said warrant having been convicted of the same offense, and having paid a nominal fine imposed by the justice of the peace who issued the first warrant, which proceedings, as claimed by the relator, were…

Relator applied for mandamus to .compel the respondent to vacate an order to hold to bail, enter an order for the release of the relator, and annul his bond given to the sheriff. An order to show cause was waived by the respondent, and on October 21, 1896, a writ of mcmdanrms was granted. 1.

Relator applied for mandamus to compel the respondent to quash a writ of replevin because of an insufficient description of the property to be taken thereunder, and because of the requirement in the writ to deliver the property to some other person than the plaintiff.

Relator applied for mandamus to compel the respondent to vacate an order allowing the sheriff, who had been ruled to put in and perfect special bail in a capias suit, to amend his return by showing that as a matter of fact bail was not taken by him, it being claimed by the relator that such fact was shown by the sheriff’s original return.

Relator applied for mandamus to compel the respondent to set aside an order dismissing her appeal from the refusal of the commissioners on claims to allow her claim filed against the estate of Andrew P. Coulter,' late of Wayne county, deceased, because of relator’s failure to file in the circuit court within 30 days after the appeal was taken the certified transcript as required by 3 How. Stat. § 6782.

Relator applied for mandamus to compel the respondent to set aside a judgment rendered against relator as garnishee, allow it to file a supplemental disclosure, and to direct the plaintiff to interplead certain claimants to the fund in relator’s hands. An order to show cause was granted, a hearing had on petition and answer, and on October 21, 1896, the application was denied. 1.

<p>Writ of error — Dismissal of for want of prosecution.</p>

Relator applied for mandamus to com-pol the respondent to vacate an order allowing creditors whose claims had been allowed against the estate of a deceased person to appear by attorney and defend against the appeal of another creditor from the disallowance of his claim. An order to show cause was granted, a hearing had on petition and answer, and on November 20, 1896, the application was denied. 1.

Relator applied November 10,1896; for mandamus to compel the respondent to vacate an order denying a motion for an extension of time in which to settle a bill of exceptions, and an order to show cause was denied. On a second application made January 4,1897, it was ordered that the respondent exercise his discretion as to the settling of said bill of exceptions, and make or refuse such settlement on such terms as might to him appear just. 1.

Belators applied for mandamus to compel the respondents to forthwith meet and levy a tax of one-tenth of one mill on a dollar upon the taxable property of Kalkaska county for the purpose of creating a fund for the relief of honorably discharged indigent ox-union soldiers. An order to show cause was granted, a hearing had on petition and answer, and on November 18, 1890, the application was granted. 1.

Motion by proponent to dismiss a wiit of error sued out by the contestant to review proceedings on appeal from the probate of a will after the decision affirming the order appealed from had been certified back to the probate court. Granted November 20,1896.

Relator applied for mandamus to compel the respondent to vacate an order granting leave to appeal from a justice’s judgment after the expiration of five days from the rendition thereof. An order to show cause was granted, a hearing had on petition and answer, and on December 4, 1896, the application was granted. 1. That How.

Motion by complainant to dismiss the appeal of the defendant because the ease was not made and filed until after the expiration of the four months allowed by Act No. 186, Laws of 1895. Granted December 4,1896. 1.

Relator applied to the Wayne circuit court for mandamus to compel the respondent to audit and allow the compensation of relator as a member of the board of estimates of the city of Detroit, and to direct the city controller to draw his warrant on the city treasurer in favor of relator for the amount thereof, as required by the city charter.

Relator applied for mandamus to compel the respondent to vacate an order made November 16, 1896, discharging relator from service as a juror in respondent’s court, on the ground of his disqualification to so serve by reason of having served as a member of the panel ■of traverse jurors in the United States oircuit court for the Eastern District of Michigan during the months of March And April, 1896.

Relator applied for mandamus to compel the respondent to hear her case, and if in his judgment the proofs taken therein entitled her to a decree of divorce to grant such decree, the sole reason given by the respondent for refusing to hear said case being that the order of publication made and entered therein had not been served on the defendant within the State of Michigan as, in his opinion, was required by Act No. 202, Laws of 1895.

Relator, as one of the heirs of John Hardy, deceased, applied for mandamus to compel the respondent to hear and decide upon the merits her application to the circuit court of Saginaw county for mandamus to compel the probate judge of said county to issue a citation for the examination of one John Heenan as to his knowledge of any assets belonging to the estate of said decedent not administered upon.