Volume 155 — Michigan Reports

Bill by Henry Hoock against Adolph Sloman and Lottie T. Sloman for the foreclosure of a mortgage: On objections of defendants to the confirmation of sale. From an order overruling the objections, defendants appeal.

Assumpsit by the Citizens’ Savings Bank against the Globe Brass Works, Hyman L. Goldman, and Maurice Goldberger on a promissory note. There was judgment for plaintiff on a verdict directed by the court, and defendants bring error.

Debt by Elizabeth Woodruff against George W. French and Dunning Butler, copartners as French & Butler, principals, and Albert W. Schultz, surety, on a bond for the performance of a building contract. There was judgment for plaintiff, and defendant Schultz brings error.

Case by Frank Deitsch against the Trans St. Mary’s Traction Company for personal injuries. There was judgment for plaintiff, and defendant brings error.

Bill by Harrison V. Lum against Eveline H. Fairbanks to enjoin an encroachment upon a street. From a decree dismissing the bill, complainant appeals: On motion to dismiss.

Bill by Charles F. Stabler against Andrew C. Clark and Gertrude Clark for the foreclosure of a mortgage. Defendants filed an answer in the nature of a cross-bill praying for a discharge of said mortgage. From a decree for complainant, defendants appeal.

Assumpsit by Thomas S. Sprague against James R. Hosie for breach of a contract for the sale of certain bank stock. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error. The suit is brought to recover damages alleged to have been sustained by the plaintiff by reason of the refusal of defendant to perform his contract to sell plaintiff 20 shares of bank stock at $154 a share.

, presiding. Assumpsit by Dominic Bonnazza against the Joseph Schlitz Brewing Company for rent. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

<p>Appeal from Delta; Stone, J.</p> <p>Bill by Thomas Dowse against Edward Gaynor. for a partnership accounting. From a decree dismissing the bill, complainant appeals.</p>

Mandamus by John E. Bird, attorney general, on the relation of John S. Beers, to compel the board of canvassers of the seventh senatorial district to recanvass a vote.

<p>Mandamus by Harry Goldman to compel Charles H. Rose, circuit judge of Manistee county, to dissolve an injunction, and to vacate an order appointing a receiver.</p>

Petition by Jacob Strifling for a writ of mandamus to compel John P. Baden, justice of the peace, to dismiss an action at law for want of jurisdiction, and for a writ of prohibition restraining further proceedings. There was an order granting the writs, and respondent brings certiorari.

Case by Celia Plefka against the Detroit United Railway for personal injuries. There was judgment for defendant, and plaintiff brings error.

Assumpsit by the Fifth Avenue Library Society against William Gh Hastie for goods sold and delivered. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.

Bill by the Detroit Trust Company, trustee in bankruptcy of the estate of William Reid, against the Old National Bank of Grand Rapids to recover certain sums of money paid to defendant. From an order overruling a demurrer to the bill, defendant appeals.

Assumpsit by Andrew J. Graham against Henry B. Smith upon a promissory note. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.

Assumpsit by Edmund L. Ebert against Kittie Wilcox for commissions on the sale of certain real estate. There was judgment for plaintiff, and defendant brings error.

Case by Mary Parker, administratrix of the estate of Isaac P. Parker, deceased, against the Union Station Association and others for the negligent killing of plaintiff’s intestate. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.

<p>Divorce — Grounds — Extreme Cruelty — Evidence — Sufficiency.</p> <p>On a bill for divorce on the ground of extreme cruelty, evidence examined, and held, not to show such acts of extreme cruelty as justify the dissolution of a marriage relation in existence for 37 years.</p>

Bill by the Detroit Trust Company, trustee, against the Glazier Stove Company for the appointment of a receiver. The F. Bissell Company intervened claiming the right of possession of certain property sold to defendant. From an order denying the claim of the intervener, it appeals.

Bill by the village of Jonesville against the Southern Michigan Telephone Company to restrain the erection of poles in certain streets. From a decree for complainant, defendant appeals.

<p>1. Slander — Actionable Words — Words Imputing Want op Chastity to Female.</p> <p>To call a woman a “damned old bitch” is not actionable as imputing a want of chastity to her.1</p> <p>2. Same — Damages Recoverable — Attorneys’ Fees.</p> <p>Fees paid to an attorney to bring an action for slander are not recoverable in the action brought. Section 10423, 3 Comp. Laws.</p>

Case by Carlo Barto, administrator of the estate of Francis Kopovics, deceased, against the Detroit Iron & Steel Company for the negligent killing of plaintiff’s intestate. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

Assumpsit by the National Cash Register Company against August Dehn and Carl O. Dehn, copartners as Dehn Bros., for goods sold and delivered. There was judgment for defendants, and plaintiff brings error.

<p>Exceptions before judgment from Charlevoix; Mayne, J.</p> <p>John Coffey was convicted of violating the fish law.</p>

<p>1. Intoxicating Liquors — Offenses—Prosecution—Evidence— Res Gestíe Witnesses — Duty to Call.</p> <p>On a prosecution for engaging in the business of selling intoxicating liquors without having paid the tax, contrary to section 5385, 2 Comp. Laws, persons who are shown to have bought liquors at respondent’s place of business are not res gestee witnesses within the rule requiring the prosecuting attorney to produce and examine such witnesses.</p> <p>2. Criminal Law — Trial — Witnesses — Indorsement on Information-Propriety .</p> <p>There is no abuse of discretion in permitting the prosecuting attorney to indorse the name of a witness upon the information within two hours from the time he was apprised of the witness and his testimony, and where the court announced that the case would not be concluded until the following day in case the respondent’s counsel desired to investigate the witness, and no surprise or facts affecting the credibility of the witness appear, there was no error in receiving his testimony.</p> <p>3. Intoxicating Liquors — Offenses — Engaging in Business — Evidence — Federal License — Admissions.</p> <p>On a prosecution for engaging in the business of selling intoxicating liquors without having paid the tax, contrary to section 5385, 2 Comp. Laws, it is competent to show that on being arrested respondent claimed he had paid the tax and produced and exhibited to the sheriff a receipt for the tax paid to the Federal government for the current year.</p> <p>4. Same —Criminal Law — Conduct of Trial — Bights of Accused-Furnishing Testimony.</p> <p>Accused having objected to parol evidence of the contents of the Federal license, the action of the prosecuting attorney in calling upon accused’s counsel to produce it, and the statement of the court that the prosecuting attorney could ask it, but that accused could not be compelled to produce it, are not ground for reversal on the theory that accused was compelled to produce evidence against himself.</p> <p>5. Same — Evidence—Accused’s Control of Place of Business.</p> <p>Evidence that packages of goods labeled mineral water, shipped over a line of railway to respondent, were delivered at the place of business which it was claimed he carried on, and when empty were returned from that place of business to the railway depot, was admissible to show that whatever business was done at that place was conducted by respondent, as against the objection that the jury were permitted to infer that the packages contained intoxicants.</p>

Alex. Dow was convicted of driving a motor car at an unlawful rate of speed, and sentenced to pay a fine of $25. Respondent was convicted upon the charge that he drove a motor car upon Woodward avenue, in the business portion of the city of Detroit, at a rate of speed exceeding eight miles an hour, contrary to the provisions of Act No. 196, Pub. Acts 1905. The particular section of the act violated is section 12, and it reads: “ Sec. 12.

Bill by Leora B. Wright against Louis La May, the Stroh Brewery Company, and James D. Burns, sheriff, to restrain an action of replevin. From a decree dismissing the bill, complainant appeals.

Bill by Frank W. Gilchrist and others, executors of the last will and testament of Ella J. Potter, deceased, against George F. Corliss and others for a construction of said will, and a construction of the last will and testament of William H. Potter, deceased. From the decree rendered, complainants appeal.

Assumpsit by Ellen Putnam against the Phcenix Preferred Accident Insurance Company on a policy of insurance. There was judgment for plaintiff, and defendant brings error.

Assumpsit by William A. Harrington against the Huff & Mitchell Company for rent. There was judgment for defendant, and plaintiff brings error. In August, 1903, plaintiff and defendant executed a written lease, by which plaintiff leased to defendant certain premises for one year, with the privilege of extending the time to 15 months, at a rental of $30 per month.

Case by Jennie Comfort against Edwin B. Robinson and George E. Moody for fraud. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.

Case by John M. Valentine against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company for the negligent burning of certain timber. There was judgment for plaintiff, and defendant brings error. The following is the plat referred to in the opinion:

Bill by James W. Harrington against Edward D. Dickinson, drain commissioner, Frank J. Dibble, county treasurer, and James B. Bradley, auditor general, to set aside an assessment for taxes, and to restrain a sale of certain land. From an order sustaining a demurrer to the bill, complainant appeals.

Case by Hannah M. Moulter against the city of Grand Rapids for personal injuries. There was judgment for plaintiff, and defendant brings error.

Case by Alexander Dixon against the Grand Trunk Western Railway Company for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

Bill by the Cook Land, Construction & Producing Company against Donald McDonald to compel a reconveyance of certain land acquired by tax title. From a decree for complainant, defendant appeals. The complainant is the original owner by a patent from the United States of the 40 acres involved in this suit. It neglected to pay its taxes, and in 1893 one-quarter of the land was sold to the State for the delinquent taxes of 1889.

Andrew Harvey, executor of the last will and testament of John Service, deceased, presented his final account in the probate court and asked for an order of distribution under the will. The probate court made an order allowing the widow to take under the statute, and the executor appealed to the circuit court. There was judgment sustaining the order of the probate court, and the executor brings error.

Case by Lide Jordan against William J. Le Messurier and Joses T. Le Messurier, copartners as Le Messurier Bros., for personal injuries. There was judgment for plaintiff, and defendants bring error.

Case by Mary Kerr, administratrix of the estate of Charles Kerr, deceased, against the National Fulton Brass Manufacturing Company for the negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendant brings error.

, presiding. Case under the civil-damage act by Lena Liebler against Isaac W. Carrel for the sale of intoxicating liquor to plaintiff’s minor son. There was judgment for defendant, and plaintiff brings error.

Bill by John E. Bird, attorney general, on the relation of the Allis-Chalmers Company, against the public lighting commission of the city of Detroit to enjoin the performance of a contract. From a decree dismissing the bill, complainant appeals.

Assumpsit by Livera McNitt against Porter H. Henderson for breach of warranty. There was judgment for plaintiff, and defendant brings error.

Bill by Elmer E. Hickman and Charles E. Neff against Delno Chaney, William E. Chaney, and others, for the specific performance of a land contract. From a decree for complaina7its, defendants appeal.

, presiding. Bill in aid of execution by the Davis Colliery Company against the Charlevoix Sugar Company and others. From a decree dismissing the bill, complainant appeals.

Petition by Abraham Jacobs against the Union Trust Company, receiver of the City Savings Bank, for the repayment of money paid for taxes on certain real- estate. From an order dismissing the petition, petitioner appeals.

Bill by William E. Felt against Zara L. Felt and Lizzie Felt to set aside a deed on the ground of fraud, and for a partition of certain real estate. From a decree for complainant, defendants appeal.

Assumpsit by the R. L. Polk Printing Company against John H. Smedley and Wilbur W. Murray as guarantors of the payment of a promissory note. There was judgment for plaintiff on a verdict directed by the court, and defendants bring error.

Assumpsit by the R. L. Polk Printing Company against John H. Smedley on the guaranty of the payment of a printing contract. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error. The plaintiff conducted a printing business in the city of Detroit. The Sail & Sweep Publishing Company published a magazine known as “ Sail & Sweep.” The printing was done by the plaintiff.

Case by Harriet Bladecka against the Bay City Traction & Electric Company for personal injuries. There was judgment for plaintiff, and defendant brings error.

<p>Divorce — Separate Maintenance — Alimony—Modification of Decree.</p> <p>Charges of acts of personal violence and threats todo complainant personal injury, the effects of which are to make her nervous and constantly afraid, being sustained, a decree for separate maintenance is modified so as to grant an absolute divorce and a disposition of the property which-avoids the necessity of further personal relations. And where the testimony leaves uncertain the amount of money of which defendant is possessed, complainant is given leave to move for a modification of the decree for alimony.</p>

Case by Austin H. Phillips against the village of Armada for injury to property from the deposit of sewage. There was judgment for plaintiff, and defendant brings error. The defendant village is a municipal corporation, organized under Act No. 3, Pub. Acts 1895. It is situated upon the banks of Deer creek, in Macomb county. From its source in St. Clair county, it flows through a well-settled farming community.

Bill by John W. Kingston, receiver of the American Mining Company, against Frederick K. Guck, Edmund Bruneau, and others, to set aside a sale of land delinquent for taxes, and to remove a cloud from the title to said land. Defendants Bruneau filed an answer in the nature of a cross-bill claiming title to said land by adverse possession. From a decree for defendants, complainant appeals.

Assumpsit by the Detroit Free Press against Henry R. Pattengill on a guaranty of the performance of a contract for the sale of certain papers. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error. In November, 1899, Mrs. M. A. Clarkson was constituted the circulating agent at Lansing of the Detroit Free Press; Mrs. M. B. Ferrey signing the customary guaranty-required by the Free Press company.

Assumpsit by George W. Bollenbacher against Edward W. Reid and Wallace B. Reid, copartners as E. W. Reid & Co., for breach of contract for the sale of certain stone. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error. The plaintiff is a contractor and broker, residing in Bloomington, Ind., dealing in Bedford stone.

Petition by Fred C. Wetmore and others for the dissolution of the Grand Lodge of the Ancient Order of United Workmen of the State of Michigan, and the appointment of receivers. James Swan and George Latcham were appointed receivers. Jessie M. Faurot and another and Mary Cash and another intervened praying for an order requiring the receivers to collect certain assessments for the payment of death claims. From an order dismissing the intervening petitions, they appeal.

, presiding. Bill by Marshall L. Stringer, administrator de bonis non of the estate of Fannie Stephens, deceased, against John Gamble, administrator of the estate of Thomas Stephens, deceased, and others, to enforce a lien for the payment of certain annuities. From a decree dismissing the bill, complainant appeals.

Judgment creditor’s bill, and also in aid of execution, by Fred Jewell against Josie Kelley and Michael Kelley. From a decree for complainant, defendants appeal.

Judgment creditor’s bill by Charles A. Rathbone against Elvira E. Maltz, impleaded with George L. Maltz. From a decree dismissing the bill, complainant appeals.

<p>Defaults — Vacation of — Rules.</p> <p>Under Chancery Rule 7, subd. d, an order vacating a decree and setting aside a default regularly entered, is unauthorized, where the application was not made within six months after such entry.</p>

Bill by the village of Frankfort against Frederick Schmid, surviving partner of Mack & Schmid, to enjoin the negotiation of certain bonds, and for the surrender and cancellation of the same. Defendant filed an answer in the nature of a cross-bill to determine the legality of said bonds, and a decree for their payment. From a decree for complainant, and dismissing defendant’s cross-bill, defendant appeals.

Bill by J. Frederick Fitschen and Ellen D. B. Williams, executors of the last will and testament of George R. Williams, deceased, against Mary E. Olson and others to set aside certain notices of tax sales, and to restrain trespasses upon land. From an order overruling a demurrer to the bill, defendants appeal.

<p>Mandamus by Robert Campbell to compel Howard Wiest, acting circuit judge of Jackson-county, to grant a change of venue.</p>

<p>Appeal from Berrien; Coolidge, J.</p> <p>Bill by Effie May Hoffman against David R. Hoffman for a divorce. From a decree dismissing the bill, complainant appeals.</p>

Bill by the First National Bank of Durand against Walter Phillpotts and Mary Phillpotts for the partition of certain real estate. Defendants filed an answer in the nature of a cross-bill to set aside an execution, levy, and sale. From a decree for defendants, complainant appeals.

Trover by Peter W. McPherson, administrator of the estate of Ann Yan Dyke, deceased, against James J. Byrne for the conversion of certain certificates of deposit claimed as a gift. There was judgment for plaintiff, and defendant brings error.

Mandamus by Edwin B. Carrier to compel Frank Shepherd, circuit judge of Emmet county, to' vacate an order denying a motion to extend the time for settling a bill of exceptions.

Bill by the township of Ecorse and another against the Detroit, Monroe & Toledo Short. Line Railway and another to enjoin the crossing of a highway. From the decree rendered, complainants appeal.

Proceedings under the water-craft law by the Detroit Lumber Company against the auxiliary yacht “Petrel.” There was judgment for defendant, and petitioner brings certiorari.

Bill in aid of execution by Mary Barbo against Frank Jeru, Joseph Jeru, George Jeru, and Agnes Jeru. Defendants Agnes and Frank Jeru filed an answer in the nature of a cross-bill making Alva L. Sawyer a party defendant, to correct an error in a deed, and to set aside the execution, levy, and sale. From a decree for complainant, defendants appeal. Complainant is a judgment creditor of defendant Frank Jeru, the judgment having been recovered May 11, 1906.

Assumpsit by Wesley P. Custard and Alexander Custard, copartners as Wesley P. Custard & Brother, against Giles E. Hodges and Hartwell P. Glidden, co-partners as Hodges & Glidden, upon a promissory note. There was judgment for defendants, and plaintiffs bring error.

Assumpsit in justice’s court by Isaac Applebaum against Hyman L. Goldman for breach of a contract for the sale of certain goods. There was judgment for plaintiff, and defendant appealed to the circuit court. There was judgment for plaintiff, and defendant brings error.

, presiding. Bill by Frederick W. Stock against the city of Hillsdale to enjoin the diversion of certain water. From a decree dismissing the bill, complainant appeals.

Bill by Walter Blampey and another against Sidney J. Pike and another to set aside certain deeds on the ground of fraud. From a decree for complainant, defendants appeal.

, presiding. John J. Zimmer presented his final account as administrator with the will annexed of the estate of Elnora Saier, deceased. The account was allowed in the probate court, and Charles Saier and others appealed to the circuit court. There was judgment allowing the account in part, and contestants bring error. Elnora Saier died January 11, 1898, leaving a will executed on that day. She had executed a previous will on August 7, 1895.

Bill by the Bay City Traction & Electric Company against the city of Bay City to enjoin the furnishing of electricity for commercial purposes, and from entering into certain contracts. From a decree for complainant, defendant appeals.-

Assumpsit by Peter Beasore against Irving Stevens for breach of a contract for the sale of certain hay. There was judgment for plaintiff, and defendant brings error.

Exceptions before judgment from the superior court of Grand Rapids; Stuart, J. Philip Boos was convicted of violating the liquor law.

Mandamus by John B. Gardiner to compel Joseph W. Donovan, circuit judge of Wayne county, to quash a writ of capias ad respondendum. ' Relator was arrested on a capias ad respondendum, and held to bail in the sum of $1,000.

<p>1. Mandamus — Scope of Remedy — Review.</p> <p>Mandamus is the proper proceeding to review an order and decree denying a petition, after the death of the original complainant, to revive proceedings in chancery to foreclose a mortgage, and declaring said mortgage to have been satisfied and discharging the same of record, where the petitioner is not a party of record in the original proceedings and by such decree is denied the right to become such party.</p> <p>2. Mortgages — Foreclosure —Executors and Administrators —Unadministered Assets.</p> <p>A mortgage in process of foreclosure at the death of complainant constitutes unadministered assets of his estate, and by proper suggestion his personal representative is entitled to proceed with the suit.</p> <p>3. Abatement and Revival — Suggestion of Death — Bill of Revivor — Rights of Heirs — Original Bill.</p> <p>While the statutory suggestion of the death of a party answers the purpose of a bill of revivor, neither by such suggestion nor by said bill can parties be brought into the suit who do not claim by operation of law as.a consequence of the death of the original party; and where an heir, claiming an interest in a mortgage under process of foreclosure which abated at the death of the mortgagee, filed a petition to revive the foreclosure proceedings and did not show any title in nor to said mortgage, the petition was properly dismissed — the only remedy to establish such interest being an original bill filed for that purpose.</p> <p>4. Mortgages — Foreclosure—Abatement and Revival — Rights . of Third Parties — Notice.</p> <p>On the revival of a suit for the foreclosure of a mortgage which abated at the death of complainant and lay dormant for a considerable lapse of time, subsequent purchasers, though they purchased with notice, should be brought upon the record in such manner that they may, under proper pleadings/ have their rights adjusted.</p> <p>5. Appeal and Error — Abatement and Revival — Scope of Determination.</p> <p>In denying the petition the court should not have passed upon the merits of the original cause.</p>

<p>Appeal from Wayne; Rohnert, J.</p> <p>Bill by Ada Stewart against Frank M. Stewart for a divorce. From a decree for complainant, defendant appeals.</p>

Mandamus by William Goldie and another to compel Chester L. Collins, circuit judge of Bay county, to vacate an order denying a motion for a judgment of nonsuit.

Mandamus by John C. Lodge to compel Thomas F. Farrell, clerk of Wayne county, to place relator’s name upon the county primary election ballot.

Case by Kate L. Peck, administratrix of the estate of William A. Peck, deceased, against the Grand Trunk Western Railway Company for the negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendant brings error.

Case by Mary A. Halladay against the Detroit United Railway and the Detroit, Jackson & Chicago Railway for personal injuries. There was an order denying a motion, to quash, and defendant Detroit United Railway brings certiorari.

Assumpsit by Erwin T. Muir against the Kalamazoo Corset Company for commissions earned on a contract of employment. There was judgment for plaintiff, and defendant brings error.

Case made from Charlevoix; Mayne, J. Assumpsit by Charles H. Werner & Sons Company against William J. Lewis for the amount of a judgment obtained in justice’s court. There was judgment for plaintiff, and defendant appeals.

Mandamus by Walter B. Mitchell to compel the State board of law examiners to issue a certificate of qualification, and recommend relator’s admission to the bar.

<p>Municipal Corporations — Public Improvements — Wharves — Constitutional Law.</p> <p>A city of the fourth class is not prohibited under the Constitution of 1908 (article 8, § 23, or article 10, § 14) from entering into a contract for the erection of a public wharf upon lands owned by it at the foot of a street which terminates in nav. igable water.1</p>

<p>1. Injunction — Propriety—Prospective Nuisances.</p> <p>On a bill to enjoin the erection of a building, on the ground that it would constitute a nuisance to adjoining property owners, it appeared that the lot on which such building was to be elected was subject to no building restrictions and was in a locality which was passing from a strictly residential to a business district; that the erection of the building itself was no injury to complainants’ rights. Held, that the issuance of an injunction restraining the erection of said building because of the business which was proposed to be carried on therein was not warranted.</p> <p>2. Same — Discretion oe Trial Court — Mandamus.</p> <p>While the discretion of the trial court in issuing and continuing in force a temporary injunction should not be lightly interfered with, facts and circumstances showing that defendants’ rights could not be preserved if compelled to wait for a final determination and decree justify a resort to a writ of mandamus to vacate an injunction improvidently issued.</p>

Bill by the Triangle Land Company against J. O. Nessen and another to set aside a deed and to quiet title. From an order overruling a demurrer to the bill, defendants appeal. Complainant sets out its title to certain land derived from a sale of the land for taxes levied in the year 1900.

Case by Jennie I. Smith against the Detroit United Railway for personal injuries. There was judgment for plaintiff, and defendant brings error.

<p>Pleadings — Rules—Demurrer—Time oe Filing.</p> <p>Under Circuit Court Rule 10, subd. a, a demurrer to an amended declaration filed more than ten days after the filing of the amended declaration was properly stricken from the files.</p>

<p>Mandamus by the Caille Brothers Company to compel Chauncey H. Gage, circuit judge of Saginaw county, to file findings of facts and of law.</p>

<p>Mandamus by Adolph Á. Caille and Wilbur W. Steele and A. Arthur Caille to compel Chauncey H. Gage, circuit judge of Saginaw county, to file findings of facts and of law.</p>

Case by Mary Kalis, administratrix of the estate of Walter Kalis, deceased, against the Detroit United Railway for the negligent killing of plaintiff’s intestate.. There was judgment for plaintiff, and defendant brings error.

Summary proceedings by Lucy D. S. Parker, executrix of the last will and testament of Franklin L. Parker, deceased, against Rufus N. Case for the possession of certain real estate. There was judgment for complainant on a verdict directed by the court, and defendant brings error.

Bill by Charles M. Horton against Ernest N. Sailing, Rasmus Hanson, and Neis Michelson, copartners as Sal-ling, Hanson & Company, and James B. Bradley, auditor general, to quiet title to land. From a decree dismissing the bill, complainant appeals.

<p>Error to Van Burén; Des Voignes, J.</p> <p>Case by Carrie E. Lockard against Charles H. Van Alstyne, principal, and Matthew Van Alstyne and Ered Niffenegger, sureties, under the civil-damage act. There was judgment for plaintiff, and defendants bring error.</p>

Mandamus by the Jackson Consolidated Traction Company to compel James A. Parkinson, circuit judge of Jackson county, to vacate an order granting discovery of relator’s books and papers.

<p>1. Criminal Law — Assault and Battery — Evidence of Subsequent Events — Nonprejudioial Effects — Admissions.</p> <p>On a prosecution for assault and battery, a witness for defendant was asked, on cross-examination, if, after the happening of the event complained of, the respondent’s fellow employés had not circulated a petition threatening to quit if respondent was not discharged. The court did not permit the question to be answered, but in a colloquy between court and counsel it became apparent to the jury that such petition had been circulated, and that respondent had been discharged or forced to resign. Held, to have been manifest error as having no bearing on his reputation at the time of the commission of the offense complained of, but, in view of respondent’s admissions of the facts constituting the offense, was not prejudicial to his rights.</p> <p>2. Same — Former Conviction of Offense — Instructions.</p> <p>The mention, in the opening statement of the trial judge, in the charge to the jury, of the fact that respondent had been convicted in the police court of the offense charged, and that he had appealed, was not reversible error, in view of the facts (a) that on the trial mention of such former trial was made by respondent’s counsel; (b) it is apparent that only by conviction in said court can a oriminal case be appealed; and (c) the court clearly warned the jury that they had no right to consider anything which had occurred in another court as bearing upon respondent’s guilt or innocence.</p> <p>3. Same —Parent and Child — Parental Authority — Extent of Punishment.</p> <p>In such action, it is not necessary, to sustain a conviction, to show that the punishment inflicted by a person on a child to whom he stood in loco parentis was such as to cause permanent injury or disfigurement. It is sufficient to show that the punishment was cruel and unreasonably severe, and such as in its very nature would negative the idea of good faith on the part of the parent. And, where the uncontra- ' dieted evidence, supplemented by the admissions of respondent, disclosed that when the complaining witness, a girl about 13 years of age, denied the taking of a sum of money, respondent, after compelling her to disrobe, whipped her</p>

Max Minney was convicted of mutilating a horse in violation of 3 Comp. Laws, § 11581, and sentenced to imprisonment for not less than two nor more than five years in the State prison at Jackson. Respondent was convicted under section 11581, 3 Comp. Laws, of mutilating a horse belonging to one Murphy by cutting off its tongue. The mutilation occurred during the night of September 19, 1907, while the horse was in its owner’s barn.

<p>1. Bill of Exceptions — Settlement — Extension of Time — Rules.</p> <p>The provisions of the statute regarding the settlement of a bill of exceptions are to be construed in connection with the rules of the court in force at the time of its passage; and, section 10504, 3 Comp. Laws, which provides that a party appealing to the Supreme Court may incorporate into the bill of exceptions the record of all the proceedings had on a motion for a new trial, including the reason assigned for its denial, construed in connection with Cir. Ct. Rule 47, entitles an appellant to a reasonable time after the denial of such motion in which to settle a bill, where the application for such extension was made within four days after the denial of a motion for a new trial.</p> <p>2. Same — Settlement—Extension of Time — Laches.</p> <p>Laches will not be imputed to relator for a delay in bringing the motion for a new trial to be heard where it appears that such delay was occasioned by the absence of the trial judge.</p> <p>3. Same —Settlement — Extension of Time — Failure to File Bond.</p> <p>The failure to file a supersedeas bond, as provided by section 10355, 3 Comp. Laws, does not deprive the trial court of jurisdiction to grant an extension of time to settle a bill of exceptions; such bond being required only for a stay of proceedings.</p>

<p>Certiorari by John James to review a conviction of statutory-rape.</p>

Mandamus by Walter B. Mitchell to compel Gr. H. Francis, probate judge of Bay county, to vacate an order sustaining a demurrer to a petition for a discovery of assets.

Bill by Olivine Bovine against Sarah L. Selden, John M. Olson, and others, for the specific performance of a land contract, and to set aside a deed. Defendants Olson filed an answer in the nature of a cross-bill to quiet title to land. From a decree dismissing the bill, and granting the prayer of the cross-bill, complainant appeals.

Case made from Emmet; Shepherd, J. Assumpsit in justice’s court by Charles B. Henika, Frank H. Henika, and Amos L. Henika, copartners as C. B. Henika & Co., against George E. Brown for goods sold and delivered. There was judgment for plaintiffs, and defendant brought certiorari in the circuit court. There was judgment affirming the judgment of the lower court, and defendant appeals.

Case by Marcus Scheer against the Detroit United Railway for personal injuries. There was judgment for plaintiff, and defendant brings error.

Clair; Tappan, J. Assumpsit by John G. O’Neill and others against the Northern Assurance Company of London, England, on a policy of insurance. There was judgment for plaintiff, and defendant brings error.

Rose Bresler Eaeder petitioned the probate court for an order of distribution of a legacy under the last will and testament of Charles E. Bresler, deceased. There was an order granting the petition, and Amanda Bresler Smith and others appealed to the circuit court. ' There was judgment for petitioner for less than the amount claimed, and she brings error.

Case by John Carrol Goodfellow, by next friend, against the Detroit United Railway for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

. Mary McNamara presented a claim against the estate of Mary McNamara, deceased, for services rendered. The claim was allowed in part by the commissioners, and claimant appealed to the circuit court. There was judgment for claimant for an insufficient amount, and she brings error.

Bill by Walter F. Reber and Aaron P. Reber to enjoin Wesley W. Pearson from engaging in business in violation of a partnership agreement. From a decree dismissing the bill, complainants appeal.

Assumpsit by Lee W. Grant, John B. Carroll, and Pierre B. Kennedy, copartners as Grant, Carroll & Kennedy, against the Sicklesteel Lumber Company for goods sold and delivered. There was judgment for defendant on a verdict directed by the court, and plaintiffs bring error.

Bill by Simon Frolich against William H. Blackstock and others to enforce a mechanics’ lien. From a decree dismissing the bill, complainant appeals.

Ejectment by Mary St. James against John D. Erskine. There was judgment for defendant, and plaintiff brings error. Plaintiff and appellant has made no such statement as Supreme Court Rule 40 requires. However, as the case is a simple one, and the facts are found by the circuit judge, we will dispose of the case without requiring such statement. The action is ejectment. Plaintiff is the owner of the original title. Defendant obtained a tax title upon the land.

Bill by Rupert M. Glenn against William Line and Clyde Line to enjoin the obstruction of a drain. From a decree for complainant, defendants appeal. Complainant and defendants own adjoining farms in the township of Marion, Livingston county, Mich. Complainant’s land lies south of the land owned by defendants, and upon it is a huckleberry swamp which comes up to or very near the partition line between the farms.

<p>Appeal from Houghton; Streeter, J.</p> <p>Bill by John Griff against Ella Clark to enforce a mechanics’ lien. From a decree dismissing the bill, complainant appeals.</p>

Replevin by George A. Vincent against William Ackerman. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error. Plaintiff and defendant own- adjoining farms in the township of Vernon, county of Shiawassee, on which they respectively reside, and at the time this suit was brought there were about 220 rods of partition or line fence between them.

Case by Clements Gerhard, by next friend, against the Ford Motor Company for personal injuries. There was judgment for plaintiff, and defendant brings error.

Assumpsit by Erwin T. Muir against the Kalamazoo Corset Company for commissions on the sale of certain goods. There was judgment for plaintiff, and defendant brings error.

Mandamus by Herman Besser to compel Frank Emerick, circuit judge of Alpena county, to sign a bill of exceptions. On May 29, 1902, relator brought an action of replevin against one John A. Widner to recover certainties, posts, and poles, claimed to have been unlawfully cut and removed' from certain lands of the plaintiff. Widner was not the trespasser, but had purchased the property from the alleged trespassers. Defendant filed a satisfactory statutory bond (Act No. 246, Pub.

Bill by James Campbell, administrator with the will annexed of the estate of Christian Sech, deceased, against Nettie Sech and the Old National Bank to reach certain funds of said estate. From a decree dismissing the bill, complainant appeals. Christian Sech, the deceased, died May 15, 1905. He left a will, executed August 7, 1899. By its terms he bequeathed $800 to defendant Nettie Sech, $800 to Fred Sech, and $5 to Augusta Molt.

Mandamus by the Electric Park Amusement Company and another to compel Alfred J. Murphy, circuit judge of Wayne county, to vacate an order appointing a trustee. On October 23, 1905, the Electric Park Amusement Company executed to the Union Trust Company, trustee, a first mortgage upon its real estate in Detroit to secure an issue of $80,000 of its first mortgage bonds.

Mandamus by Edward M. Deane and others to compel Willis B. Perkins, circuit judge of Kent county, to vacate an order striking a stipulation for a discontinuance.

<p>Error to the recorder’s court of Detroit; Phelan, J.</p> <p>Charles Clark was convicted of murder, and sentenced to imprisonment for life in the State prison at Jackson.</p>

Mandamus by Frank McMillan and another to compel George S. Hosmer, circuit judge of Wayne county, to vacate an order denying a motion to set aside a judgment.

Petition by Mary McFarlan for the removal of Euphemia McFarlan as administratrix of the estate of Henry C. McFarlan, deceased. The petition was granted and respondent appealed to the circuit court. There was judgment sustaining the order of the probate court, and respondent brings error.

Case by Mary Haney against the village of Pinckney for personal injuries. There was judgment for plaintiff, and defendant brings error.

Bill by the Ladies’ Library Association of Greenville, Michigan, Unincorporated, against the Ladies’ Library-Association of Greenville, Michigan, Incorporated, and others, to determine the right to possession of certain property. From an order placing the property in the custody of a receiver pending a hearing on the merits, defendants appeal.

Case by Harry Richards against the Michigan Pressed Steel Company for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

Bill by William A. Wellman toenjoin William C. Blackmon and Casper Olin from interfering with certain water rights. From a decree dismissing the bill, complainant appeals.

Mandamus by John Koerber to compel the board of supervisors of Ionia county to reconvene and take testimony upon and determine the question of whether an application for submitting the question of prohibiting the sale of intoxicating liquors to a vote of the people had been petitioned for by the requisite number of voters. There was an order denying the writ, and relator brings certiorari.

Case by Joseph Brown against William E. Lennane and John Lennane, .copartners as Lennane Brothers, for personal injuries. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.

Mandamus by the Knights of the Modern Maccabees and others to compel James Y. Barry, commissioner of insurance, to vacate an order requiring relators to comply with the provisions of Act No. 180, Pub. Acts 1907.

Ejectment by Addison M. Weller and others against Frank B. Wheelock, Lorenzo P. Wheelock, and Frank M. Smith, impleaded with Fred J. Pierson. There was judgment for defendants on a verdict directed by the court, and plaintiffs bring error.