20 N.W.2d 840 (Mich. 1945), 91, Royal Oak Tp. v. City of Huntington Woods

CourtSupreme Court of Michigan
Writing for the Court[313 Mich. 139] NORTH, Justice.
JudgeBefore the Entire Bench.
Citation20 N.W.2d 840,313 Mich. 137
Docket Number91.
Date03 December 1945

Page 840

20 N.W.2d 840 (Mich. 1945)

313 Mich. 137




No. 91.

Supreme Court of Michigan

December 3, 1945

[313 Mich. 138] Appeal from Circuit Court, Oakland County, in Chancery; H. Russel Holland, Judge.

Suit by Township of Royal Oak, a municipal corporation, against City of Huntington Woods, a municipal corporation, for an accounting and settlement between plaintiff and defendant incident to incorporation of defendant city in what was theretofore township territory. From a modified decree entered after rehearing, defendant appeals.

Case remanded to trial court for the purpose of making a record on a full rehearing of the accounting.

Before the Entire Bench.

[313 Mich. 139] Arthur E. Moore, of Royal Oak, for defendant and appellant.

[313 Mich. 138]

Page 841

Glenn C. Gillespie, of Pontiac, and Franklin E. Morris, of Ferndale, for plaintiff and appellee.

[313 Mich. 139] NORTH, Justice.

The bill of complaint was filed in this cause August 19, 1938. By its suit the township of Royal Oak, hereinafter referred to as the township, sought to obtain an accounting and settlement between itself and the city of Huntington Woods, hereinafter referred to as the city. The city was incorporated in August 1932 and its incorporated area was taken from what had theretofore been a part of the township. The accounting sought was such as is incident to the incorporation of a city in what was theretofore township territory, as provided in volume 1 Compiled Laws 1929 section 2250 as amended by Act No. 233, Public Acts 1931 (Stat.Ann. § 5.2093). After hearing in the circuit court a decree was entered which defendant deemed adverse to its rights. Defendant appealed to this Court, and the record and briefs were duly filed. However, by request of counsel for the respective parties consideration and determination of the case in this Court was deferred. This was done because counsel were of the opinion that the matter in litigation might be amicably adjusted. Subsequent to decree originally entered in the instant case in the trial court, decision by this Court was rendered in the case of Township of Royal Oak v. City of Pleasant Ridge, 295 Mich. 284, 294 N.W. 682. Thereafter by stipulation of counsel the instant case was remanded from this Court to the circuit court of Oakland county. On June 18, 1941, in accord with stipulation of counsel, an amended decree was filed by which the rights and liabilities of the respective parties in the subject matter of the suit purported to be fully adjudicated. On May 5, 1943, the township filed a motion that the court sua sponte order a partial rehearing. By its motion plaintiff township [313 Mich. 140] sought upon rehearing to have stricken from the amended decree previously entered by consent paragraphs (3) and (6), to which further reference will hereinafter be made. In part the reasons asserted in support of the motion were that under our decision in Township of Royal Oak v. City of Pleasant Ridge, supra, the provisions of the consent decree which plaintiff sought to have stricken were contrary to the law relative to the liability of the respective parties to the instant suit, particularly as to contingent liability on special assessment bonds; and because the erroneous provisions of the decree were inserted therein 'through a mutual mistake of counsel and the court as to the law applicable to said special assessment bonds.' Plaintiff's motion that the court sua sponte order a rehearing was granted July 2, 1943; and incident to the rehearing the trial court, on November 8, 1944, struck from the amended decree which had been entered by consent June 18, 1941, the above mentioned paragraphs (3) and (6) thereof; and further, as proposed in plaintiff's motion, the trial court added to its modified decree, which was entered nunc pro tunc as of June 18, 1941, certain provisions which will be noted later herein.

The present appeal is from the amended decree of November 8, 1944, entered nunc pro tunc as of June 18, 1941. In part appellant's contention is indicated by the following question:

'Where a consent decree is set aside because of invalidity of one of several interdependent sections thereof, may the Court set aside the invalid section and require the parties to remain bound by the remaining sections, and thus make a new contract for the parties?'

[313 Mich. 141] Another of appellant's questions reads:

'Where a contested decree of the Trial Court, pending appeal, is superseded by an invalid consent decree which must be set aside, are the parties to be returned to their status quo, and either the former decree with right of appeal reinstated or some decree rendered within the scope of the pleadings and proofs?'

Our review of this record brings the conclusion that at least for the purpose of decision herein the amended decree entered in the trial court June 18, 1943, should be considered as a consent decree. It bears the endorsement: 'O. K. as to form and substance: Robert C. Baldwin, Attorney for Plaintiff and Appellee.' However, see Kirn v. Ioor, 266 Mich. 335, 253 N.W. 318. As hereinbefore noted, this decree was entered after the case by stipulation of counsel for the respective parties was remanded from this Court to the circuit court; and evidently it was drafted in the particulars now in...

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