Alspaugh v. Ionia Circuit Judge

• Court: Michigan Supreme Court
• Writing for the Court: HOOKER, J.
• Citation: Alspaugh v. Ionia Circuit Judge, 126 Mich. 67, 85 N.W. 244 (Mich. 1901)
• Decision Date: 27 February 1901
• Parties: ALSPAUGH et ux. v. IONIA CIRCUIT JUDGE.

85 N.W. 244

126 Mich. 67

ALSPAUGH et ux. v. IONIA CIRCUIT JUDGE.

Supreme Court of Michigan

February 27, 1901

Application for mandamus by James H. Alspaugh and Mary E., his wife against the Ionia circuit judge, to compel respondent to set aside and vacate a certain order, and to grant an order prayed for. Order affirmed.

John J McKenna, for respondent.

HOOKER J.

On July 14, 1897, Alspaugh and wife were in possession of premises purchased by them from Badger, who held their mortgage upon the premises. An action of ejectment was commenced against them to recover these premises by the city of Ionia. Alspaugh and wife appeared and filed a plea of the general issue accompanied by a notice of a claim for improvements. Badger asked and obtained leave to appear and defend, claiming to be an interested party, and filed a plea of the general issue. Subsequently Badger's death was suggested, and his administrator appeared. On April 14, 1900, plaintiff's attorney and Badger's attorney appeared in open court and consented to the entry of a judgment of nonsuit. Alspaugh and wife were ignorant of the intention to do this, and were not present. The judgment entry states that 'the parties to said cause, by their respective attorneys, came into court and consented and agreed that the defendants are not guilty,' etc., and 'that judgment should be rendered in accordance therewith against said plaintiff, without costs, except the taxable fees of the clerk of this court,' and it was so adjudged. Counsel for the Alspaughs served a notice of taxation of costs upon counsel...