American Eutectic Welding Alloys Sales Co. v. Grier

• Decision Date: 26 April 1961
• Docket Number: Nos. 16,17,s. 16
• Citation: 363 Mich. 175,108 N.W.2d 831
• Parties: AMERICAN EUTECTIC WELDING ALLOYS SALES CO., Inc., a foreign corporation, Plaintiff and Appellant, v. Hilton M. GRIER, Jr., Defendant and Appellee. AMERICAN EUTECTIC WELDING ALLOYS SALES CO., Inc., a foreign corporation, Plaintiff and Appellant, v. Frank P. TRECOT, Defendant and Appellee.
• Court: Michigan Supreme Court

Page 831

108 N.W.2d 831

363 Mich. 175

AMERICAN EUTECTIC WELDING ALLOYS SALES CO., Inc., a foreign

corporation, Plaintiff and Appellant, v. Hilton M. GRIER, Jr., Defendant and Appellee.

AMERICAN EUTECTIC WELDING ALLOYS SALES CO., Inc., a foreign

corporation, Plaintiff and Appellant, v. Frank P. TRECOT, Defendant and Appellee.

Nos. 16, 17.

Supreme Court of Michigan.

April 26, 1961.

Butzel, Levin, Winston & Quint, Detroit, for plaintiff and appellant.

Michael Kranson, Detroit, for defendants and appellees.

Before the Entire Bench.

BLACK, Justice (for dismissal of writ).

Mr. Justice SMITH writes:

'Under the view we have taken of the case it is pointless to discuss the difference, if any there be in reality, at this stage in the judicial process, between (1) an appeal as of right, and (2) an application for leave to appeal involving 'a construction of the constitution or of any statute of this state, or any matters of great public importance * * *,' which application we are required to grant.' (The emphasis is that of the present writer.)

My learned Brother leans directly on an old statute, the most recent amendment of which was forced by the declaration of separational independence found in People v. Stanely, 344 Mich. 530, 75 N.W.2d 39. The amendment reads (C.L.S.1956, § 650.1):

'Sec. 1. Writs of error upon any final judgment or determination, where the judgment exceeds in amount $500.00, or where judgment has been rendered upon a directed verdict for defendant in cases involving a claim of more than $500.00, may issue, of course, out of the supreme court, in vacation as well as in term, and shall be returnable to the same court; and in all other cases such writ may issue in the discretion of the supreme court or any justice thereof upon proper application: Provided, however, That if said case involves a construction of the constitution or of any statute of this state, or any matters of great public importance or involves the contest of a will, such application need only show such fact and, when filed, the writ of error shall issue of course.'

So we are 'required' to grant all applications--whatever their conclusionary form or want of judicial verification ¹--counsel may choose to make under this statute. Who 'requires' such processual obedience by this Court? Lo, it is the legislative branch. I disagree.

This is the tale of two reviews of twice unsuccessful motions for summary judgment in each of the captioned cases. It would end, if my Brother's opinion prevails, with the floodgates opened wide for appeals of right in law cases and an abject surrender of judicial power to the legislature. With the legislature thus dictating the course and extent of appellate judicial process, it would not be difficult to foretell continued gleeful death in the legislature of any measure designed to provide overdue intermediate assistance for this highest Court of a State. Our only available means of relief, from today's and tomorrow's overload (that of requiring application and grant of leave to review all matters we may lawfully review), would be lost this day if our majority should decide to haul down the constitutional flag article 7 has entrusted to our membership.

It is hardly necessary to add that a continuously overloaded appellate court does not do as good precedential work as otherwise it might do. 'The whole swarm of rulings' predicted by Mr. Justice Graves (see full quotation infra) would be brought here for review, once the word is professionally passed that appeal by statutorily 'required' writ of error is available generally to all who are willing to write, into a 'claim' of appeal, that a question of constitutional or statutory construction, or 'of great public importance,' is involved. This surely would mean open advent of the cussed and discussed 'one-man opinion.' ²

These suits originated in Detroit common pleas. They are based on awards made by a New York arbitrator, allegedly on authority of separate and like contracts made in New York by and between the plaintiff and each defendant. Each award was confirmed by judgment of a New York trial court. The confirmed award to plaintiff against defendant Grier amounted to $749.60. The confirmed award to plaintiff against defendant Trecot was in the sum of $908.20. No process was served on the defendants in or from New York state save only as contentiously indicated in the respective opinions of Judge Neuenfelt in circuit and Justice Smith here.

The cases having come to issue in common pleas, plaintiff filed motions for summary judgment against each defendant. Judge Vokes of common pleas denied both motions. Plaintiff duly applied to the circuit court for leave to appeal from the orders of denial. ³ The circuit court granted leave in each instance. In circuit plaintiff moved again for summary judgment against each defendant. That court denied both motions and ordered remand for further proceedings under § 21 of Court Rule No. 77. Plaintiff, deigning no application for leave this time, arrives upon claim of right by a captioned 'Claim of Appeal' reading (in each case) as follows:

'American Eutectic Welding Alloys Sales Co., Inc., a foreign corporation, plaintiff, claims an appeal from the order entered March 4, 1960 by the Honorable Lila M. Neuenfelt, Judge of the Circuit Court for the County of Wayne, denying summary judgment. Appellant takes general appeal pursuant to Act 4 Public Acts 1953, as amended, and other applicable laws and statutes of the State of Michigan in such cases made and provided. Appellant shows that the effect of the order appealed from is to deny full faith and credit to a judgment of the Supreme Court of the State of New York upon which plaintiff's cause of action is based.'

We cannot evade this challenge of the judicial power. Either we have authority--and duty--to insist on due compliance by all appellants with the applicable procedures of thirty-one-year old Court Rule No. 60, or the legislature has power to suspend those procedures when that body chooses so by a measure 'requiring' grant of an 'application' for leave to appeal or constitutional writ. Such is the real issue before us, neglect of which is surely due to seat the Legislature firmly on the judicial steed. Until now, we have not been unhorsed. 'Spurs can only be applied by a rider, and the Legislature does not occupy the judicial saddle.' Wiest, J., concurring in Stepanian v. Moskovitz, 232 Mich. 630, 639, 206 N.W. 359, 362.

I stress in limine this stark fact: No judgment for or against the plaintiff in either of the two cases has as yet been entered in either of the two courts below. Thus, under the old practice as well as the new, denial prior to trial of an interlocutory motion has never been reviewable by issuance and return of a writ of error.

In Hermesmeyer v. Northwestern Invest. Co., 254 Mich. 384, 236 N.W. 810, the defendant filed motion for summary judgment. The motion was denied, and defendant claimed appeal of right. The Court said:

'No application for leave to appeal was made to this court, and no such leave has been granted. The appeal must therefore be dismissed. As this question is not raised by counsel for appellees, no costs will be allowed.'

In Quail v. Cole, 260 Mich. 642, 245 N.W. 542, the appellant claimed appeal of right from another non-final order (setting aside default and judgment) in a law case. Relying on this same statute (cited then as C.L.1929, § 15491) to avoid the tedium and risk occasioned by an application for leave to appeal, the appellant was met bluntly this way:

'The statute relates to final judgments, and plaintiff has no judgment, but seeks direction, by this court, to have his judgment reinstated. The mentioned rules, while requiring mandamus to be termed an appeal, do not change the law that it is an original writ, and that it does not issue without application and allowance.

'Leave to prosecute an appeal in the nature of mandamus was necessary, and was not obtained. We therefore, sua sponte, dismiss the appeal.'

That is what we should do here, sua sponte, if for no other reason than that of fairness to the hundreds of counsel who do comply with Rule 60 when review of before-trial orders in law cases is sought.

Even if the Constitution--not some statute--'required' that we grant applications for writs of error, it seems to me that we should insist that the appeal-bent party submit an application under Rule 60, just for the pro forma appearance of things in the records of a visibly bemused high court. When the language in question first appeared in said section 1 (by the act of 1917) ⁴ implemental Court Rule No. 59 was at once adopted. Until superseded in 1931 by like requirement of Court Rule No. 60, said Rule No. 59 made clear the position of this Court that the statute required an 'application' as a condition of its invocation.

'Rule 59. Any one desiring to secure a writ of error under the provisions of Act No. 172 of the Public Acts of 1917, shall, within 30 days from the entry of judgment, prepare a concise statement of what is involved in the case and the points relied upon and notice the same on the opposite party for settlement before the circuit judge. The statement when so settled shall be the basis of the application to this court.

'To take immediate effect.

'Adopted September 28, 1917.' (199 Mich. xxx).

Now let us assume that this plaintiff has filed formal and Rule 60-complaint applications for writs of error to review Judge Neuenfelt's orders. Such applications would be quite out of order because the constitutional writ of error is not and never was employable to review denial of interlocutory motions.

'The plaintiff's attorney raises the point that the case is not one which can be reviewed upon writ of error, and in this view we agree. The proceedings were interlocutory, and not final, and resulted in no final judgment against defendant. The province of a writ of error is to bring...