Brownell v. Gratiot County Sup'rs

• Decision Date: 31 October 1882
• Citation: 13 N.W. 798,49 Mich. 414
• Parties: BROWNELL v. GRATIOT COUNTY SUP'RS.
• Court: Michigan Supreme Court

13 N.W. 798

49 Mich. 414

BROWNELL v. GRATIOT COUNTY SUP'RS.

Supreme Court of Michigan

October 31, 1882

To entitle a party to a writ of mandamus to compel the board of county supervisors to assess and collect a sum to pay certain ditch orders issued by the county commissioners, relator must show affirmatively that she is the legal holder and owner of said orders, unless the same is admitted in the answer of respondent.

Where the holder of such orders purchases the land drained, files a bill, and has the taxes set aside, and the law provides in such a case for a reassessment upon the same lands, no benefit could accrue from the issuing of a writ of mandamus at the instance of such purchaser, or one to whom he had transferred such orders.

Mandamus.

Spaulding & Cranson and J.P. Christiancy, for relator.

Chas J. Millett, for respondents.

MARSTON J.

The relator asks for a mandamus to compel the respondent board to provide for the assessment and collection of a sum sufficient to pay certain ditch orders issued in the years 1871, '2 and '3 by the drain commissioner of that county. The case has been submitted upon petition and answer. The relator in her petition represents that she is the holder and legal owner of certain orders, copies of which are annexed thereto. The respondents in their answer say they have no knowledge as to whether the relator is holder and owner of the orders as claimed. Now whether the relator was the holder and legal owner of these orders or not, was a fact that could not well be within the knowledge of the respondents, and the answer setting forth a want of knowledge on that subject was proper. The relator however is not entitled to the writ unless her right to the orders is either admitted or proved. This would deem to be a self-evident proposition, and such admission or proof is necessary for the protection of the person or municipality claimed to be liable thereon. If the relator is not the owner this proceeding would be no bar to an action hereafter commenced by the rightful holder. People v. Ryan, 17 Mich. 160.

There is another peculiarity in this case that should not be passed in silence. These orders were all issued, with one exception payable to John Scriven or bearer, and were presented for payment, some on and others shortly after the date of issue. At what time the relator became the holder thereof, if she ever did, is not alleged in her petition which is verified by Mr. Scriven. It is set forth in the petition that the sum...