Farrell v. Taylor

• Decision Date: 05 December 1863
• Citation: 12 Mich. 113
• Court: Michigan Supreme Court
• Parties: Philip Farrell v. Elisha Taylor

12 Mich. 113

Philip Farrell v. Elisha Taylor

Supreme Court of Michigan

December 5, 1863

Heard October 28, 1863

Certiorari to a Circuit Court Commissioner for the county of Wayne.

Writ quashed, with costs, as improvidently issued.

J. E Bigelow, for plaintiff in error.

D. C Holbrook, for defendant in error.

Campbell J. Manning and Christiancy, JJ. concurred. Martin, Ch. J. was absent.

OPINION

Campbell J.:

Taylor having recovered a judgment of restitution against Farrell, as holding over after a mortgage foreclosure (the proceeding having been had under the statute giving a summary remedy in such cases), a certiorari was issued to the Circuit Court Commissioner, to review his action.

We intimated upon the argument a doubt whether the writ ought to be retained for such a purpose, and, upon further consideration, are satisfied that it should be quashed, as improvidently issued.

It was claimed on the argument, that the allowance of the writ by a proper officer is conclusive upon this court. Such is not the practice. In the case of Lantis and others, 9 Mich. 324, it was held that the propriety of the allowance is always open to examination by the court itself. The writ is not of right, but is granted under discretion; and to allow a single judge, or a person not a member of the court, to bind it in advance, would be to take away the authority of the court itself. Unless the writ is granted by the court in the first instance, the propriety of its allowance will be considered on motion to dismiss, or on the hearing.

That the court has jurisdiction to issue this writ, as a matter of judicial power, we think is established by the weight of authority. The case of The People v. Farwell, 4 Mich. 556, denied such a power to the Circuit Courts, when an appeal lay to those courts from the same judgment which had been taken up by certiorari. Without inquiring into the grounds of that decision, we think the appellate jurisdiction of this court over inferior tribunals not proceeding according to the course of the common law, is granted by the constitution in terms broad enough to reach the case. But, while the power exists, it has been considered as one which should be exercised sparingly, in cases where other adequate remedies can be had; and, where a decision can be taken up by appeal, and on that appeal the jurisdictional questions, as well as those arising on the merits, can be fully disposed of, a certiorari should not be allowed, unless circumstances exist which show that a failure of justice will result from denying it: Savage v Gulliver, 4 Mass. 171; Storm v. Odell, 2 Wend. 287; Comstock v. Porter, 5 Wend. 98; People v. Supervisors of Queen's County, 1 Hill 195; People v. Covert, 1 Hill 674; Matter of Mount Morris Square, 2 Hill 14. The appeal in these cases covers the jurisdiction, as well as allowing a rehearing on facts. Sallee v. Ireland, 9 Mich. 154. The object of allowing the summary jurisdiction, against tenants and others holding over after their rights have been determined, was to prevent the injustice which would arise, were persons who have entered into land, under circumstances...