Berry v. DeHnke

• Decision Date: 08 September 1942
• Docket Number: Motion No. 360.
• Citation: 302 Mich. 614,5 N.W.2d 505
• Parties: BERRY v. DEHNKE, Acting Lapeer Circuit Judge.
• Court: Michigan Supreme Court

302 Mich. 614

5 N.W.2d 505

BERRY

v.DEHNKE, Acting Lapeer Circuit Judge.

Motion No. 360.

Supreme Court of Michigan.

Sept. 8, 1942.

Proceeding by Eugene P. Berry, receiver of the Lapeer Farmers Mutual Fire Insurance Association, for a writ of mandamus against Herman Dehnke, acting Lapeer Circuit Judge, commanding him to vacate an order transferring a suit by petitioner against John Riley from the chancery to the law side of the court.

Writ granted.

Appeal from Circuit Court, Lapeer County, in Chancery; Herman Dehnke, judge.

Before the Entire Bench, except WIEST, J.

Walter S. Foster, of Lansing, for plaintiff.

John F. Jordan, of Detroit, and Roger J. Vaughn, of Flint, for defendant John Riley.

SHARPE, Justice.

Petitioner, receiver of the Lapeer Farmers Mutual Fire Insurance Association and plaintiff in a chancery suit against one John Riley, petitions this court for a writ of mandamus commanding the circuit judge to vacate an order transferring the above mentioned cause from the chancery to the law side of the court.

On February 11, 1942, petitioner, as receiver of the insurance association, filed a bill of complaint in the circuit court of Lapeer county, in chancery, against one John Riley, a resident of Lapeer county, to impress a lien and provide for the foreclosure of the same against certain property owned by defendant. He alleged that the insurance association was a corporation organized in 1871 for mutual insurance of its members and subject to Act No. 256, Pub.Acts 1917, as amended; that on September 17, 1935, by proceedings in the circuit court of Ingham county, in chancery, the association was placed in receivership; that on July 27, 1940, the receiver levied assessments against persons who, as owners of property insured, were members of the association between January 1, 1927, and September 17, 1935, pursuant to the order of the Ingham county circuit court, in chancery, in the receivership proceedings; that defendant was the owner of certain property insured by the association from October 18, 1928, to September 17, 1935; that the pro rata share of the assessment due from the owner of said property was $106.87, which defendant refused to pay; that by virtue of 3 Comp.Laws Laws 1929, § 12602, plaintiff has a lien upon the property so insured to the amount of the assessment; and that plaintiff has a lien upon the property by virtue of section 8 of the charter of the association, which defendant by his membership in the association agreed to and became bound by and which reads as follows:

‘* * * It is hereby agreed and understood that said unpaid assessment shall be considered as a lien on the whole or any part of the property, both real and personal, insured, to the amount of such assessment, together with all necessary expenses, fees and costs from collecting said assessment, including attorneys fee * * *.'

Defendant Riley appeared in his proper person and filed a motion to dismiss plaintiff's bill of complaint upon the ground, among others, that the bill does not state a cause of action cognizable in equity and that plaintiff has an adequate remedy at law.

After hearing, the trial court dismissed the bill but, later, on reconsideration and rehearing of the motion to dismiss, entered an order vacating his order dismissing the bill and transferred the case to the law side of the court under 3 Comp.Laws 1929, *s 14008.

Plaintiff now petitions this court for a writ of mandamus directing the trial court to vacate his order transferring the cause to the law side of the court, claiming that he has a valid cause of action in chancery for a lien upon the property.

An order to show cause was issued and the trial court in his return states as follows:

‘Defendant further returns that his determination that plaintiff's bill of complaint did not state a case maintainable in equity was based solely upon his conclusion that plaintiff is not given a lien against the property insured either by the statute or the provisions of the ‘Charter,’ both of which relate themselves only to assessments levied by the company or association, and not to receiver's assessments, as to which there is no comparable provision in those portions of the statutes relating to liquidation; * * *.

‘Defendant respectfully calls attention to the fact that the motion to dismiss plaintiff's bill of complaint below is based also on other grounds, which defendant overruled, but which, if found to be well taken, would require dismissal of the bill of complaint, rather than a transfer of the case to the law side of the court; and suggests that, in view of the fact that numerous other cases are pending in which similar questions are raised, it is desirable that all the reasons upon which dismissal is asked be considered and passed upon.'

Section 14008, 3 Comp.Laws 1929, Stat.Ann. § 27.652, provides: ‘If at any time it appear that a suit commenced in equity should have been brought as an action on the law side of the court, or if it appear that an action commenced on the law side of the court should have been brought in equity, it shall be forthwith transferred to the proper side, and be there proceeded with, with only such alteration in the pleadings as shall be essential.'

Of first importance is to determine whether it is discretionary upon the part of the trial judge to transfer a cause from the law side of the chancery side or vice versa.

In Lake Superior Brass Foundry Co. v. Houghton Circuit Judge, 209 Mich. 380, 176 N.W. 409, 410, we had occasion to construe 3 Comp.Laws 1915, § 12351, which is identical to section 14008, supra. We there said: ‘The making of such an order [transferring a case] is not, in our opinion, discretionary. When the court concludes that plaintiff has failed to make out a case which entitles him to its submission to the jury for the reason that matters involved are the subject of equitable jurisdiction, the order must be made pursuant to the statute.'

See, also, Genyk v. Nagrich, 255 Mich. 189, 237 N.W. 525;White Star Refining Co. v. Evans, 269 Mich. 636, 257 N.W. 915.

It would appear from the above authorities that the transfer of a cause from law to equity or vice versa is not discretionary on the part of the trial judge. We are next confronted with the question of whether mandamus is the proper remedy to review the trial court's order transferring the case under section 14008, supra.

In Michigan Mutual Fire Insurance Co. v. Wayne Circuit Judge, 112 Mich. 270, 70 N.W. 582, 583, we said: ‘It is a general rule that the writ [mandamus] will not lie where the law has provided another remedy. It is said a writ of mandamus issues because there is no other adequate remedy, and justice and good government require a redress of the wrong. A court will not be required by this writ to take any action when another remedy is provided. It will not take the place of an appeal or writ of error. Merrill, Mand. §§ 201, 209. * * * The writ will be entertained when the court has refused to retain jurisdiction, supposing it had no jurisdiction when it had jurisdiction in fact, because, if the writ was not entertained under such circumstances, the party would be without remedy.'

In Globe Indemnity Co. v. Richer, 264 Mich. 224, 249 N.W. 833, 834, in discussing the question of when the writ of mandamus will issue, we said: ‘It will be granted only when the duty of the circuit judge is imperative and not discretionary.'

In Toan v. McGinn, 271 Mich. 28, 34, 260 N.W. 108, 111, we said: ‘To support mandamus, plaintiffs must have a clear legal right to performance of the specific duty sought to be compelled; defendants must have the clear legal duty to perform such act; and it must be a ministerial act, one ‘where the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment.’ 38 C.J. p. 598; Globe Indemnity Co. v. Richer, 264 Mich. 224, 249 N.W. 833;Sezor v. Proctor & Gamble Soap Co., 267 Mich. 128, 255 N.W. 175.'

And in People ex rel. Township of LaGrange v. State Treasurer, 24 Mich. 468, 477, we said: ‘In cases where the right is clear and specific, and public officers or tribunals refuse to comply with their duty, a writ of mandamus issues for the very purpose, as declared by Lord Mansfield, of enforcing specific relief. It is the inadequacy, and not the mere absence, of all other legal remedies, and the danger of a failure of justice without it, that must usually determine the propriety of this writ. Where none but specific relief will do justice, specific relief should be granted if practicable. And where a right is single and specific it usually is practicable.'

See, also, Chemical Bank & Trust Co. v. County of Oakland, 264 Mich. 673, 251 N.W. 395;National Bank of Detroit v. State Land Office Board, 300 Mich. 240, I N.W.2d 525.

It follows from the above authorities that in the case at bar mandamus is the proper method by which plaintiff may obtain a review of the order transferring the cause.

The order of transfer involved in this case, in effect, decided that plaintiff's bill of complaint did not state a cause of action over which a court of equity has jurisdiction, but did state a cause of action cognizable by the law side of the court. The only question involved in this review is whether the court equity is the proper forum to decide the alleged cause of action stated in plaintiff's bill of complaint.

Plaintiff's contention that equity is the proper forum is based upon a claimed lien against certain property arising from 3 Comp.Laws 1929, § 12269, and § 12602, as well as section 8 of the charter of the association. It is the claim that under section 12269, supra, a receiver has the same authority to make assessments as the officers of the corporation for which the receiver acts; and that under section 12602, supra, and section 8 of the charter a lien follows an assessment.

In Frost v. Atwood, 73 Mich. 67, 41 N.W. 96, 98,16 Am.St.Rep....