Baskin v. Dingeman

• Decision Date: 22 July 1926
• Docket Number: Motion No. 496.
• Citation: 209 N.W. 925,236 Mich. 15
• Parties: BASKIN v. DINGEMAN, Circuit Judge.
• Court: Michigan Supreme Court

236 Mich. 15

209 N.W. 925

BASKIN

v.DINGEMAN, Circuit Judge.

Motion No. 496.

Supreme Court of Michigan.

July 22, 1926.

Original application by John G. Baskin for writ of prohibition against Harry J. Dingeman, as Wayne Circuit Judge. Writ granted.

Argued before BIRD, C. J., and SHARPE, SNOW, STEERE, FELLOWS, WIEST and McDONALD, JJ. H. H. Smith, of Caro, Mich. (Paul Woodworth, of Bad Axe, of counsel), for plaintiff.

Miller, Baldwin & Boos, of Detroit, for defendant.

SHARPE, J.

On June 2, 1925, Grace K. Baskin, wife of plaintiff, filed a bill for divorce in the circuit court for the county of Wayne, in chancery. On August 11th plaintiff filed his appearance in said cause and his answer to the bill of complaint. On August 31st the parties, personally and by their respective attorneys, signed a stipulation discontinuing said cause. On September 1st Judge Dingeman, the defendant herein, entered an order of discontinuance pursuant to said stipulation.

On September 8, 1925, the plaintiff herein (defendant in the case which had been discontinued) filed a bill for divorce from his wife in the circuit court for the county of Huron, in chancery. A chancery summons was thereupon issued and served upon her on the same day. On September 11th she filed a petition in the cause which had been discontinued in the Wayne circuit court, praying that the stipulation and order for discontinuance be set aside. A hearing on the motion was had on October 1st, but no order made at that time. On November 3d her default was entered in the Huron circuit court. On November 5th she entered her appearance, and filed a motion to set aside the default, to which was attached her proposed answer and cross-bill, and also a motion to change the venue of that case. On November 14th an order was made setting aside the default, with a provision that her answer attached to the motion should ‘be considered filed herein.’ On December 22d an order was entered denying the motion for a change of venue, and on the same day plaintiff filed his answer to the cross-bill. The cause was then placed upon the Huron circuit court calendar for the January, 1926, term.

On January 15, 1926, a subpoena was issued out of the Wayne circuit court and served on the plaintiff herein, commanding his appearance before Judge Dingeman on January 22d, and a notice that further proofs would then be taken on the motion to set aside the order of discontinuance was served on his attorneys. The attorneys for the parties appeared before Judge Dingeman on the day set. The proceedings in the Huron circuit court were put in evidence, and plaintiff objected to the taking of testimony, and asked that the motion be denied because of the pendency of such proceedings. A number of witnesses were examined, after which Judge Dingeman entered an order setting aside the order of discontinuance.

Plaintiff thereupon filed a petition in this court, setting up the proceedings had in the Wayne and Huron circuit courts, and praying that a writ of prohibition issue to Judge Dingeman, restraining him from exercising further jurisdiction in the cause pending in the Wayne circuit court. The defendant's answer to this petition is before us. He had filed an opinion on granting the motion, and asks that it be treated as a part of his answer. In this opinion he reviews the proceedings had, and justifies the order made by him on the ground that the stipulation for discontinuance was procured from Mrs. Baskin and her attorneys by fraud. His reasoning is very convincing that the...