Volume 205 — Michigan Reports

Peter Stocin presented his claim for compensation against the C. R. Wilson Body Company for injuries received in defendant’s employ. From an order awarding compensation, defendant and the Royal Indemnity Company, insurer, bring certiorari.

Bill by Wilbert W. Gasser against the Garden Bay Railway Company and others for the foreclosure of a mortgage and the discontinuance of defendant railway as a common carrier. The people of the State of Michigan and others intervened relative to the discontinuance. From the decree rendered, defendants appeal.

Exceptions before judgment from Oakland; Rockwell, J. Albert W. Willson was convicted of making a false report with intent to cheat and defraud.

Clair; Law, J. Assumpsit by Charles Smith against Frank W. Hubbard and others, copartners as the Palms Bank of Frank W. Hubbard & Co., for the amount of a certified check. Judgment for plaintiff. Defendants bring error.

, presiding. Bill by the Paw Paw Savings Bank against John W. Free to enjoin an interference with plaintiffs banking quarters, and to construe a lease. From a decree for plaintiff, defendant appeals.

Assumpsit in justice’s court by the People’s State Bank against Daniel D. Frisbee and Thomas E. Mitchell on certain promissory notes. There were two separate suits in which one resulted in a judgment for plaintiff and one in judgment for defendants. Both were appealed to the circuit court, and by stipulation were tried as one case. Judgment for plaintiff. Defendant Frisbee brings error.

, presiding. Case by Clinton Nelson against George J. Sandel for criminal conversation with plaintiff’s wife. Judgment for defendant. Plaintiff brings error. This action is brought for the purpose of recovering damages from defendant growing out of his alleged criminal conversation with plaintiff’s wife.

Bill by David B. Newcomb against Herbert B. Montague and others to discover property of defendant Montague to satisfy a judgment. P’rom a decree for plaintiff, defendants appeal. As stated by counsel for plaintiff the bill in this case is in the nature of a bill for discovery to reach property of defendant Herbert B. Montague to satisfy an indebtedness of $764.10.

Assumpsit by Julia B. Richard and another against James E. Lee and others upon a guaranty for the payment of rent. Judgment for plaintiffs on a directed verdict. Defendants bring error. Plaintiffs are devisees and legatees under the last will and testament of William A. Richard, deceásed, who in his lifetime, through his agent, one Kennedy, executed a lease to the interpleaded defendant, the Jackson Cover & Bag Company, covering a certain building in the city of Jackson.

Ersor to Montcalm; Davis, J. Clarence Bennett was convicted of the crime of statutory rape, and sentenced to imprisonment for not less than five years nor more than ten years in the Michigan reformatory at Ionia. Defendant was arrested on a warrant charging him with rape under the provisions of section 15211, 3 Comp.

Bill by Perry Schurtz against the city of Grand Rapids to enjoin the payment of certain increased salaries. • From a decree for plaintiff, defendant appeals. The bill in this case is filed to restrain the defendant city of Grand Rapids from paying to the city assessors salary at the rate of $2,400 per annum or any amount in excess of $1,800 per annum and alleging the unlawful increase of such salary by the city commission in the year 1918 from $1,800 to $2,400 per annum.

Assumpsit by the Cadillac Machine Company against the Mitchell-Diggins Iron Company for breach of a contract for the sale of certain pig iron. From the judgment entered, both parties bring error. This case was heard by the court without a jury.

Bill by Iva Thompson against Clarence Thompson for a divorce. From a decree for plaintiff, defendant appeals. Plaintiff and defendant at the time of their marriage on December B, 1915, were each about 23 years of age. Plaintiff is the daughter of a farmer and defendant is a farmer, their respective places being about two miles distant from each other.

Bill by George Hollway, administrator de bonis non with, the will annexed of the estate of George N. Davis, deceased, against Carrie Maud Atherton and the Holland Home Benevolent Association for a construction of said will. From a decree for defendant Atherton, defendant association appeals. The bill of complaint was filed in this cause to secure construction of the following will: “I, Geo.

, presiding. Bill by Grinnell Brothers against George D. Brown and others to restrain the obstruction of an easement. From a decree for plaintiff, defendants appeal.

, presiding. Assumpsit in justice’s court by Charles Hunt and others, copartners as Hunt, Washington & Smith, against W. F. Hurd Company for goods sold and delivered. There was judgment for defendant, and plaintiffs appealed to the circuit court. Judgment for plaintiffs. Defendant brings error.

<p>■ Error to Wayne; Webster, J.</p> <p>Case by Maude Fishleigh against the Detroit United Railway for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

Casé by Robert B. Armstrong against Warren J. Rachow for fraud in the sale of corporate stock. Judgment for plaintiff. Defendant brings error. Plaintiff brings this suit to recover damages for an alleged fraud perpetrated upon him by defendant in the sale of 1,000 shares of the stock of the Canadian Puget Sound Lumber Company, Ltd., at three dollars per share. The sale occurred on April 2, 1913.

- Bill by Melbourne E. Truitt and another against the city of Battle Creek and Samuel A. Howes, guardian ad litem, to remove a cloud upon title to land. From a decree for plaintiff, defendant- Howes appeals.

Herman Kotzke appealed to the circuit court from a final order of distribution of the estate of William Kotzke disallowing his claim as heir at law of said decedent. Judgment for claimant. Defendant brings error.

Bill by Sarah W. Dewey and others against the city of Flint to set aside an assessment for a sewer tax. From an order overruling a motion to dismiss, defendant appeals.

Bill by Anna L. Gunn against Thomas J. Gunn and another for the specific performance of a postnuptial agreement. From a decree dismissing the bill, plaintiff appeals.

Mandamus by Humphrey S. Gray to compel Charles E. White, circuit judge of Berrien county, to vacate an order in chancery framing an issue and directing its submission to a jury.

Case by Augusta Rotter, administratrix of the estate of Stanley Rotter, deceased, against the Detroit United Railway and the Union Brewing Company for the negligent killing of plaintiffs intestate. Judgment for defendants on a directed vérdict. Plaintiff brings error.

Garnishment proceedings by Mae Crampton against the Grand Rapids Brass Company, as garnishee defendant of Basil R. Crampton. Isadore Wolf was interpleaded as defendant claiming as prior assignee of the fund. Judgment for plaintiff. Defendant Wolf brings error.

, presiding. Petition by Aurah W. Skinner against William D. Skinner for the enforcement of the terms of a decree of divorce respecting alimony. Defendant filed a cross-petition asking for a modification of said decree. From a decree denying the cross-petition, defendant appeals.

Bill by John K. Baxter and another against Isaac Ogooshevitz to enjoin the violation of building restrictions. From á decree for plaintiffs, defendant appeals.

George Gogak was convicted of carrying concealed weapons, and sentenced to imprisonment for not less than one year nor more than two years in the Detroit house of correction.

<p>Error to Wayne; Mandell, J.</p> <p>Assumpsit in justice’s court by Houseman-Spitzley Corporation against the American State Bank and another for money had and received. There was judgment for defendants, and plaintiff appealed to the circuit court. Judgment for defendants on a directed verdict. Plaintiff brings error.</p>

<p>Error to Wayne; Mandell, J.</p> <p>Case by Lucy E. Thurston against the Northern Navigation Company, Limited, for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

<p>Error to Shiawassee; Collins, J.</p> <p>Case by Frank J. Sayre, administrator d& bonis non of the estate of Charles H. Sayre, deceased, against the Detroit, Grand Haven & Milwaukee Railway Company for the negligent burning of decedent’s buildings. Judgment for plaintiff. Defendant brings error.</p>

<p>1. Jury — Challenge por Cause — Friendship for Party — Impartiality.</p> <p>That a juror had a general acquaintance with, and expressed friendship for, one of the parties, was not ground for challenge for cause, where it appeared that he could and would try the case impartially, “although it would mate it harder” for him.</p> <p>2. Master and Servant — Infants — Personal Injuries — Negligence — Question for Jury.</p> <p>In an action for the loss of a foot hy a boy nine years of age who was employed by defendant to drive chickens out of the grass in front of a mowing machine, the court below properly refused to instruct the jury, as requested by plaintiff, that defendant was guilty of negligence in the manner indicated therein, where, under the evidence, the question was one for the jury.</p> <p>3. Trial — Instructions—Requests to Charge.</p> <p>Where the substance of a requested instruction was given by the court in its general charge, it was not error to refuse the request.</p> <p>4. Same.</p> <p>In determining whether a cáse was properly submitted to the jury, the charge should be construed together as a whole.</p> <p>5. Same — Issues—Instructions.</p> <p>In an action for personal injuries to an infant nine years of age, where the age of the boy, his negligence, if any, and his opportunity to observe obvious danger, were all dwelt upon by the court, in his charge to the jury, as was the claimed negligence of the defendant, 7iel&, the case was properly presented to the jury.1</p>

<p>1. Negugence — Defective Derrick — Liabiuty of Manufacturer —Burden of Proof.</p> <p>In an action for injuries causing the death of plaintiff’s decedent due to the collapse of a derrick manufactured by defendant, the burden was upon plaintiff to show a substantial compliance with the accompanying plans and instructions in the erection of the derrick.</p> <p>2. Same — Evidence—Directed Verdict.</p> <p>Undisputed testimony that the instructions of the manufacturer were not followed by deceased and his employer in assembling said derrick, held, to support a directed verdict for defendant.</p> <p>3. Same — Contributory Negugence — Assumption of Risk.</p> <p>Where decedent helped to construct the derrick knowing that the instructions for erecting had not been complied with, and continued to use it after it developed symptoms of weakness, held, to preclude recovery on the grounds of contributory negligence and assumption of risk.</p>

<p>Certiorari to Industrial Accident Board.</p> <p>Frank W. Scott presented his claim for compensation against O. A. Hankinson, and others, copartners as 0. A. Hankinson & Company, for accidental injuries received in defendant’s employ. From an order awarding compensation, defendants and the Travelers’ Insurance Company, insurer, bring certiorari.</p>

<p>Appeal from Oakland; Rockwell, J.</p> <p>Bill by John Hammer and another against Armittie Martin to set aside an exchange of real property on the ground of fraud. From a decree dismissing the bill, plaintiffs appeal.</p>

•Error to Genesee; Black, J. William H. McKeighan was convicted of assault and robbery, not being armed with a dangerous weapon, and sentenced to imprisonment for not less than two years nor more than fifteen years in the State reformatory and house of correction at Ionia.

<p>1. Mechanic’s Liens — Claim of Lien — Owners—Husband and Wife — Estates by Entireties — -Statutes.</p> <p>Where, in a claim of a mechanic’s lien against property owned by husband and wife by the entireties, the husband alone was named as owner, the requirements of the statute (3 Comp. Laws 1915, § 14800) were not complied with, although the husband and wife were each personally served with a copy of the plaintiff’s claim.</p> <p>2. Same — Statutes^-Strict Construction.</p> <p>Lien statutes are innovations upon the common law, and are therefore to.be strictly construed.</p>

<p>Covenants — Incumbrances—Lease—Damages.</p> <p>In an action to recover damages for breach of covenant of warranty that land conveyed was free from all incumbrances, where tenants in possession under oral lease from the grantor were paid $600 by plaintiff to surrender possession of said premises and remove therefrom the buildings thereon, plaintiff’s right to recover was limited to $600.</p> <p>See note in 35 L. R. A. (N. S.) 779.</p>

<p>Appeal from Marquette; Flannigan, J.</p> <p>Petition by the common council of the city of Negaunee against Charles Muck and others for the vacation of a cemetery. There was a decree for petitioner, and defendant Muck applied for a rehearing. From an order denying the application, defendant appeals.</p>

<p>Error to Manistee; Withey, J.</p> <p>Case by Frank Koscnicki against the Pere Marquette Railway Company for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.</p>

<p>Error to superior court of Grand Rapids; Dunham, J.</p> <p>Case by Romauld Albrecht against St. Hedwig’s Roman Catholic Benevolent Society and others for an assault. Judgment for defendants. Plaintiff brings error.</p>

<p>Error to Oakland; Smith, J.</p> <p>Ejectment by Adolph Kushler and another against John H. Weber and another. Judgment for plaintiffs on a directed verdict. Defendants bring error.</p> <p>In April, 1906, the Oakland Place Land Company, Limited (a limited partnership association), was the owner of the north % of the northeast % of section 29, in town 1 north, range 11 east, being the township of Royal Oak in Oakland county. On April 6, 1906, the said company executed two deeds, one to Maurice M. Kenney and wife, conveying the westerly 75 acres of said land, and the other to William C. Connolly and wife, conveying the easterly 5 acres thereof. It was subsequently discovered that the north % of the northeast % of section 29 contained about one and three-quarters acres more than the 80 acres it was supposed to contain. The defendants in this suit, who had become the owners of the 75-acre parcel by mesne conveyance, held possession of this 1%-acre strip under a claim of title, and the plaintiffs herein, then the owners of the 5-acre parcel by mesne conveyances, brought an action of ejectment against them to recover said strip of land, and obtained judgment under a directed verdict. The matter having been brought, before this court on appeal (See Kushler v. Weber, 182 Mich. 224), the judgment was reversed and a new trial ordered. Before a second trial was had, however, plaintiffs discontinued the suit, and after obtaining' some further conveyances, commenced a new action of ejectment against the same defendants for the recovery of the same strip of land, and it is this case which is now before us on writ of error from judgment obtained by plaintiffs on a directed verdict.</p> <p>Upon the trial of this case, the plaintiffs introduced in evidence the following instruments:</p> <p>1. Warranty deed by The Citizens’ Savings Bank of Detroit, Michigan, to Mark B. Stevens, dated May 6, 1897, recorded May 14, 1897, conveying the north half of the northeast quarter of section 29, town 1 north, range 11 east, and other land.</p> <p>2. Warranty deed by Mark B. Stevens and wife to The Oakland Place Land Company, Limited, dated June 28, 1898, recorded June 30, 1898, conveying the north half of the northeast quarter of section 29, town 1 north, range 11 east, and other land.</p> <p>3. Warranty deed by The Oakland Place Land Company, Limited, to William C. Connolly and Emma Connolly, his wife, dated April 6, 1906, recorded May 1, 1908, conveying the easterly 5 acres of the north half of the northeast quarter of section 29, town 1 north, range 11 east, and other land.</p> <p>4. Quitclaim deed by The Oakland Place Land Company, Limited, Margaret G. Jewell, as widow and residuary legatee and devisee- under the last will and testament of William F. Jewell, deceased, Mark B. Stevens and George S. Field, individually and as members of the Oakland Place Land Company, Limited, and Emily G. Stevens, wife of Mark B. Stevens, and Amy E. Field, wife of George S. Field, to The Citizens’ Savings Bank, of Detroit, Michigan, dated October 22, 1915, recorded November 27, 1915, conveying the north half of the northeast quarter, excepting the westerly 75 acres thereof, of section. 29, town 1 north, of range 11 east. This deed contains a recital that it is made in pursuance of a resolution adopted by the Oakland Place Land Company, Limited, by its board of directors, on May 9,, 1906.</p> <p>5. Quitclaim deed by The Citizens’ Savings Bank, of Detroit, Michigan, to Adolph Kushler and Anna Kushler, his wife, dated October 23, 1915, recorded November 27, 1915, conveying the north half of the northeast quarter, excepting the westerly 75 acres thereof, of section 29, town 1 north, of range 11 east.</p> <p>6. Quitclaim deed by William C. Connolly and Emma Connolly, his wife, to Adolph Kushler and Anna Kushler, his wife, dated January 5, 1916, recorded January 10, 1916, conveying the north half of the northeast quarter, excepting the westerly 75 acres thereof, of section 29, town 1 north, of range. 11 east.</p> <p>7. Warranty deed by The Oakland Place Land Company, Limited, to Maurice M. Kenney and Letitia Kenney, his wife, dated April 6, 1906, recorded April 11, 1906, conveying the westerly 75 acres of the north half of the northeast quarter of section 29, township of Royal Oak, Oakland county, Michigan.</p> <p>8. Warranty deed by Letitia Kenney, survivor of herself and Maurice M. Kenney, to John H. Weber and Sophia Weber, his wife, dated March 1, 1911, recorded March 1, 1911, conveying the westerly 75 acres, more or less, of the north half of the northeast quarter of section 29, township of Royal Oak, Oakland county, Michigan.</p> <p>The resolution referred to in deed numbered 4 above was adopted at a meeting of the directors and stockholders of the Oakland Place Land Company, Limited, held on May 18, 1906, and reads as follows:</p> <p>“Resolved that this company sell and convey the balance of the Oakland county farm to the Citizens’ Savings Bank for $12,000, and that the officers of this company sign all necessary papers to convey certain property and take up bonds of this company for $12,-000.”</p> <p>Though not introduced by plaintiffs as part of their chain of title, it appears in evidence that plaintiffs had obtained title to the easterly five acres of the north half of the northeast quarter of section 29 as early as August 28, 1912, by means of the following conveyances :</p> <p>(a) Deed from William C. Connolly and Emma Connolly, his wife, to Frank F. Leska and Matilda, his wife, and Adolph Kushler and Anna, his wife, dated October 22, 1906, recorded November 10, 1906, conveying land commencing at the northeast corner of the northeast quarter of section 29, town 1 north, range 11 east; thence westerly on the section line 164 feet; thence southerly on a line parallel with the east line of said section, 1,331 feet; thence easterly parallel with the north section line 164 feet to the east line of said section; thence northerly on the section line, 1,331 feet to the place of beginning, containing 5 acres.</p> <p>(5) Deed from Frank Leska and Matilda Leska, his wife, to Adolph Kushler and Anna Kushler, his wife, dated August 28, 1912, recorded September 2, 1913, conveying lot 13 of the survey and unrecorded plat of the west half of the northeast quarter of section 28, the west half of the east half of the northwest quarter of section 28, and the easterly 5 acres of the north half of the northeast quarter of section 29, all in town 1 north, range 11 east, 125 acres more or less; the said lot 13 containing 5 acres.</p>

<p>1. Negligence — Street Railways — Personal Injuries — Contributory Negligence — Presumptions—Eyewitnesses.</p> <p>In an action against a street railway company for personal injuries caused by a collision between plaintiff’s automobile and an interurban car, where plaintiff started from the curb and drove his automobile in, front of the car, and no witness was able to say whether or not plaintiff ' looked to see if a car was coming, and he testified that his mind was a blank as to what happened, the presumption that, in the absence of eyewitnesses, plaintiff was free from contributory negligence, held, not applicable.</p> <p>2. Evidence — Presumptions—Weight Against Evidence.</p> <p>A rebuttable or prima facie presumption has no weight as evidence; it may establish a prima facie case, but, if challenged by rebutting evidence, the presumption cannot be weighed against the evidence.</p> <p>3. Negligence — Contributory Negligence— Presumptions — Evidence — Question for Jury.</p> <p>When direct, positive, and credible rebutting evidence is introduced, the presumption of due care ceases to operate; but when circumstantial evidence of doubtful value is the only rebutting evidence offered, the question should be submitted to the jury.</p> <p>4. Same.</p> <p>It is only in cases where direct testimony of credible eyewitnesses as to the negligence of deceased is uncontradicted that the court is warranted in directing a verdict for the defendant on the ground of decedent’s contributory negligence; if the testimony is contradicted or rendered improbable by the circumstances, or if the credibility of the witnesses is attacked, the question must be submitted to the jury; the evidence to be weighed unaided by the • presumption..</p> <p>5. Same — Evidence—Due Care — Presumptions.</p> <p>If the jury decide that th.e testimony tending to show negligence on the part of the deceased has been overcome, the presumption of due care will still operate.</p> <p>6. Same — Contributory Negligence — Presumptions—Overcoming Presumptions.</p> <p>The real test as to whether the presumption of due care has been overcome is whether or not evidence tending to show contributory negligence, be it direct or circumstantial, is so conclusive that reasonable and unprejudiced minds could not fail to be convinced that decedent was careless.</p> <p>1. Same — Evidence—Conclusiveness—Directed Verdict.</p> <p>Where there was evidence that if plaintiff had looked he would have seen the car coming and realized his danger, from which an inference might properly be drawn that he did not see the car, and that either he did not look, or that he did look but carelessly drove upon the track, and the inevitable conclusion to which all unprejudiced minds must come is that plaintiff was clearly guilty of contributory negligence under the peculiar facts in the case, the trial judge was justified in directing a verdict for defendant.</p>

<p>Certiorari to Industrial Accident Board.</p> <p>Jennie Campbell presented her claim for compensation against the Cummer-Diggihs Company for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant brings certiorari.</p>

<p>Wills — Construction—Failure oír Bequest — Charge on Other Property.</p> <p>Where testator’s will provided that a fund of ¡¡>10,000 should be created and the interest therefrom paid to his granddaughter for life, but the .estate was insufficient to produce this sum, she was not entitled to have the deficit made up out of other property otherwise devolving under the will.</p>

<p>Error to Mackinac; Shepherd, J.</p> <p>Assumpsit by Charles E. Kynock and another, co-partners as Charles Kynock & Company, against the Wilwin Company, Limited, for goods sold and delivered. Judgment for plaintiffs. Defendant brings error.</p>

<p>Certiorari to Wayne; Webster, J.</p> <p>George Wiley was adjudged guilty of contempt of court.</p>

<p>1. Master and Servant — Workmen’s Compensation Act — Personal Injuries — Course of Employment — Mixed Question.</p> <p>The question whether a workman is injured by an accident arising out of and in the course of his employment may he a question of law or one primarily of fact, or a mixed question of law and fact.</p> <p>2. Same — Evidence—Finding of Industrial Accident Board— Conclusiveness.</p> <p>Where the finding of the industrial accident hoard that at the time plaintiff was injured he was not doing anything in the course of his employment, hut was neglecting his duties as watchman, and therefore is not entitled to compensation under the workmen’s compensation act, is supported hy competent testimony, the decision of the hoard must he affirmed.</p> <p>See notes in L. R. A. 1916A, 40, 232; L. R. A. 1917D, 114.</p>

<p>Appeal from Genesee; Collingwood, J., presiding.</p> <p>Bill by Johannah Lyons and others against Arthur Cotharin, administrator of the estate of Dennis Lyons, deceased, and others for the construction of a will and deed. From a decree dismissing the bill, plaintiffs. appeal.</p>

<p>1. Husband and Wife — Neglect to Support — Criminal, Law— Test as to Guilt — Necessaries Furnished Wife.</p> <p>In a prosecution on a charge of being a disorderly person under 2 Comp. Laws 1915, § 7774 et seq., in that defendant neglected and refused to support his wife and baby, where the evidence shows that defendant and his wife were living apart, the test in such cases appears to be whether such a case is established as would entitle a third person to recover against the husband for necessaries furnished the wife.1</p> <p>2. Same — Living Apart — Burden of Proof.</p> <p>During cohabitation the assent of the husband is assumed, but if they are living apart, the burden is upon the person furnishing the necessaries to show that the circumstances are such as to render the husband liable.</p> <p>3. Same — Evidence—Directed Verdict.</p> <p>Evidence that defendant furnished a home for his wife with his parents, but because it -was sometimes unpleasant for her, although no serious quarrels arose, she left and went back to her parents’ home, held,, to require a directed verdict for defendant.</p> <p>Ostrander, J., dissenting.</p>

<p>Estoppel — Sale by Life Tenant — Acceptance of Proceeds by Remaindermen — Election.</p> <p>Where defendants, remaindermen under the will of their grandfather, elected to ratify .the sale of the land by their father and accept the proceeds, they were estopped from afterwards reasserting their title to the land sold.</p>

Bill by Homer G. Mullholland and another against Vernon Patch for a partnership accounting. From a decree dismissing the bill, plaintiffs appeal.

<p>Certiorari to Industrial Accident Board.</p> <p>Elizabeth McRae presented her claim for compensation against Morgan & Wright for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant brings certiorari.</p>

<p>1. Deeds — Validity —■ Voluntary Conveyance — Contribution — Services — Consideration.</p> <p>Where a brother and sister, with the mother and younger children, all worked together in various kinds of work and enterprises and accumulated two parcels of real estate, the title to one coming to the brother at the mother’s death, and the other being deeded to the sister by the brother, whether she was entitled to compensation for services, or whether her labor contributed to a common fund, held, sufficient to furnish a consideration for the conveyance.</p> <p>2. Trusts — Parol Trusts — Voluntary Conveyance — Statutes.</p> <p>In view of 3 Comp. Laws 1915, § 11571, an oral promise to reconvey land voluntarily conveyed is not enforceable as a parol trust, but if fraud entered into the transaction the statute will not apply.</p> <p>3. Judgment — Res Judicata — “Without Prejudice.”</p> <p>A decree dismissing a bill “without prejudice” left the issues open to be again litigated in a subsequent proceeding.</p>

<p>Venue — Change of Venue — Judges—Disqualification—Calling in Other Judge.</p> <p>Where a circuit judge, considering himself disqualified, called in another judge to hear an application for a continuance under 3 Comp. Laws 1915, § 12342, and the case was set for trial, the judge of an adjoining circuit was without jurisdiction to order a change of venue therein while said case was under said order.</p>

Mary Moyer presented her claim for compensation against the Packard Motor Car Company for the accidental death of her son in defendant’s employ. From an order awarding compensation, defendant brings certiorari.

. Assumpsit by James H. Ruel and another against Benjamin F. Washburne on certain promissory notes. Judgment for plaintiffs on a directed verdict. Defendant brings error.

<p>Appeal from Van Burén; Des Voignes, J.</p> <p>' Bill by the Marshall & Ilsley Bank against Walter J. Mooney and another to foreclose a mortgage. Defendants filed a cross-bill asking for the cancellation of said mortgage. From a decree for plaintiff, defendants appeal.</p>

Assumpsit by the Marshall & Ilsley Bank against Walter J. Mooney on a promissory note. Judgment for plaintiff. Defendant brings error.

, presiding. Mandamus by Lee Hartley to compel the board of canvassers of Bay county to recount the ballots in the primary election for the nomination of a candidate for county road commissioner. William H. McCauley, an opposing candidate, was allowed to intervene. From an order denying the writ, plaintiff brings certiorari.

Ezra Osborn was convicted of murder in the first degree, and sentenced to imprisonment for life in the State prison at Jackson.

Bill by the Windemere-Grand Improvement and Protective Association against the American State Bank of Highland Park and another to enjoin the violation of building restrictions. From a decree dismissing the bill, plaintiff appeals.

Certiorari by James Pollitz and another to review an order of the Michigan railroad commission authorizing the New York Central Railroad Company and the Michigan Central Railroad Company and others to guarantee the payment of bonds.

Certiorari by Clarence H. Venner and another to review an order of the Michigan railroad commission granting permission to the New York Central Railroad Company to issue bonds.

Karl Weidner presented his claim for compensation against the Northway Motor & Manufacturing Company, Division General Motors Corporation, for injuries received in defendant’s employ. From an order awarding compensation, on petition to reopen the claim after final settlement, defendant and the Zurich General Accident & Liability Insurance Company, Limited, insurer, bring certiorari.

Bridget Doherty presented her claim for compensation against the township of Grosse Isle for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant brings eertiofari.

Sam Rubin presented his claim for compensation against the Fisher Body Corporation for injuries received in defendant’s employ. From an order awarding compensation, defendant and the Employers’ Liability Assurance Corporation, Limited, insurer, bring certiorari. Claimant was injured on the* 19th day of June, 1917, while in the employ of the defendant Fisher Body Corporation.

r Bill by Grover Colby and others against Sarah Wortley and another for a construction of a will. From a decree for plaintiffs, defendants appeal.

Assumpsit by William S. Edward against Walter loor and others for money paid on an illegal sale of stock. Judgment for defendants on a directed verdict. Plaintiff brings error. Plaintiff is a resident of Sault Ste. Marie and defendants have a common office in the city of Grand Rapids. Defendant United Vending Company is. a corporation organized under the laws of the State of Arizona.

Replevin, in justice’s court by Albert G. Griggs against Joseph De Young. There was judgment for defendant and plaintiff appealed to the circuit court by writ of certiorari. Judgment for defendant. Plaintiff brings certiorari.

Bill by the White Marble Lime Company against the Consolidated Lumber Company and the Thomas Berry Chemical Company for the specific performance of a contract. From a decree granting partial relief only, plaintiff appeals.

Bill by Nettie Preston against Shinar Preston and others -for the reformation of a deed. From a decree for plaintiff, defendants appeal.

Bill by Anna Hallett against L. D. Taylor to establish her claim to the proceeds of a policy of insurance. From a decree for plaintiff, defendant appeals.

, presiding. Bill by the Oceana Farmers’ Mutual Telephone Company against the United Home Telephone Company for the specific performance of a contract. From a decree for plaintiff, defendant appeals.

, presiding. George N. Jones presented his final account as administrator of the estate of Arthur P. Crane, deceased, and asked for an order of distribution. The account was allowed and an order of distribution entered in the probate court, and Charles H. Colvin and others appealed to the circuit court. Judgment sustaining the order of the probate court. • Contestants bring error.

, presiding. Proceedings by Mary Sehloemp to establish and probate a lost will alleged to have been made by Wilhelmina Zick. The will was disallowed in the probate court, and proponent appealed to the circuit court. Judgment for proponent. Contestants bring error.

<p>Appeal from Shiawassee; Miner, J.</p> <p>Bill by J. Martin Moore against T. J. Provost and others to quiet title to land. From the decree rendered, plaintiff appeals.</p>

Bill by Alfred Wood against Earl Porter Button and others to set aside a redemption from a mortgage foreclosure, and to enforce a lien for taxes. From a decree for plaintiff, defendants appeal.