Blickle v. Higbee

• Decision Date: 20 July 1920
• Docket Number: No. 96.,96.
• Citation: 211 Mich. 216,178 N.W. 680
• Parties: BLICKLE v. HIGBEE, Probate Judge.
• Court: Michigan Supreme Court

211 Mich. 216

178 N.W. 680

BLICKLE

v.HIGBEE, Probate Judge.

No. 96.

Supreme Court of Michigan.

July 20, 1920.

Certiorari to Circuit Court, Kent County; John S. McDonald, Judge.

Proceeding in mandamus by Beatrice Galligan Blickle, by next friend, against Clark E. Higbee, Kent County Probate Judge. There was an order denying the petition and plaintiff brings certiorari. Affirmed.

Argued before MOORE, C. J., and STEERE, BROOKE, FELLOWS, STONE, CLARK, BIRD, and SHARPE, JJ. Shelby B. Schurtz, of Grand Rapids, for appellant.

Stuart E. Knappen and Ganson Taggart, both of Grand Rapids, for appellee.

STONE, J.

This is certiorari to review an order of the circuit court for the county of Kent, denying petition to issue a mandamus to the judge of probate of said county requiring him to expunge from the record of the probate court a certain order actually written, signed, and filed December 11, 1919, but which defendant claims was in accordance with an order actually made on October 31, 1919. The purported order was in the words and figures following:

‘Order Committing Child to Juvenile Home.

‘State of Michigan-In the Probate Court for the County of Kent, Juvenile Division.

‘At a session of said court, held at the probate office in the city of Grand Rapids, in said county, on the 31st day of October, A. D. 1919.

‘Present: Hon. Clark E. Higbee, Judge of Probate.

‘In the matter of Beatrice Galligan, neglected child.

‘Lilly Galligan, having filed in said court her petition, alleging that said named child is a neglected child, and said child having voluntarily appeared before said court, together with the sister, and after taking testimony, it appearing to the court that the best interests of the public and said child will be subserved thereby, the said child having heretofore, to wit, on the 27th day of January, 1916, been declared and found to be a neglected child, and having at that time been released temporarily to the mother and stepfather, and it now appearing that said child is again neglected by said custodians, in that she is not attending school regularly, and that a petition has been filed, alleging that she is a delinquent child:

‘It is ordered that said child be and is hereby committed to the care of Kent County Juvenile Home, to be there kept until Monday, November 3, 1919.

‘It is further ordered that Maude Swanson is hereby directed to take said child to the Kent County Juvenile Home, as aforesaid, pending the final disposition of said case, or until the further order of said court.

‘Clark E. Higbee, Judge of Probate.’

The petition for the writ of certiorari shows: That said petition for mandamus alleged that on November 29, 1919, the plaintiff, by her next friend, instituted a suit in the superior court of Grand Rapids against Maude A. Swanson and Kate L. Baldwin for false imprisonment in the Kent County Juvenile Home, from October 31, 1919, until November 3, 1919 when she was released by habeas corpus proceedings in said superior court. That on December 11, 1919, the said judge of probate had written, signed, and filed said purported ‘Order Committing Child to Juvenile Home,’ without any notice to plaintiff or her attorney, which purported to have been written, signed, and filed on October 31, 1919, with nothing in the record to show that it was in fact written, signed, and filed on December 11, 1919. That the said purported order of October 31, 1919, if in fact it had been actually written, signed, and filed, and in the possession of said Maude A. Swanson on said October 31, 1919, would have constituted a valid defense, but that it was neither written, signed nor filed, nor in Maude A. Swanson's possession on October 31, 1919, and in fact was not in existence until December 11, 1919. That the attorneys for said Swanson and Baldwin, on December 12, 1919, filed a plea and answer to the false imprisonment action which specifically defended upon said purported and false written order of October 31, 1919. That said purported order was not a true and correct record, was not a proceeding and act that ever took place, was a fraud upon plaintiff, in that it was in fact neither written, signed, nor filed on October 31, 1919, nor did Maude A. Swanson see it or have it in her possession on said October 31, 1919. That said petition for mandamus shows that the probate court was twice asked to correct this record, but without avail, in spite of the admission of defendant that said order was not written, signed, or filed until December 11, 1919.

The petition for certiorari further shows that on January 10, 1920, the defendant filed his answer to the order to show cause granted in the mandamus proceeding. Reference will later be made to said answer. The petition for certiorari further shows that the circuit court heard the mandamus proceedings on January 12, 1920, at which time plaintiff's attorney filed a request that issues of fact be framed, and also filed the following instrument, properly entitled in the court and cause:

‘Plea of Relator to Answer of Respondent.

‘Now comes the relator, by Shelby B. Schurtz, her attorney, and denies the statements of fact and conclusions of law stated in respondent's answer, controverts the denials in respondent's answer to the statements of fact and conclusions of law stated in relator's petition, states that notwithstanding the answer of respondent she is entitled to the relief prayed for in her petition, and asks the court to frame issues of fact that the facts in dispute may be determined.

‘Shelby B. Schurtz,

‘Attorney for Relator.’

It is further stated in the petition for certiorari that the circuit court refused to frame issues of fact, and later entered an order dismissing the plaintiff's petition for mandamus. The petition for certiorari states that, unless the record of the probate court, juvenile division, is corrected, as demanded, so as to show the commitment order of October 31, 1919, was actually not written, signed, and filed until December 11, 1919, plaintiff will be defrauded out of her action in the false imprisonment case against Maude A. Swanson and Kate L. Baldwin by the use of said false order. Error is assigned:

(a) Because no issues of fact were framed, as twice requested in writing.

(b) Because, taking all the material facts stated in the defendant's affidavit as true, defendant has not shown legal cause why a peremptory writ of mandamus should not issue.

(c) Because by the fact admitted relator is entitled to the writ of mandamus.

The answer of defendant in the mandamus proceeding is too lengthy to be here inserted in full. We quote, however, from the same the following:

‘Respondent admits that on December 11, 1919, he, as judge of the juvenile division of the probate court of the county of Kent, signed and filed an order substantially as set forth in paragraph 7 of said petition, and that said order was actually written on said December 11, 1919; but respondent avers that the said order was actually indicated, and directions given for writing and entering the same on the date which it bears, namely, October 31, 1919; and respondent further avers that the said order was in force and effect on said October 31, 1919, and at all times thereafter, by reason of the fact that respondent made said order on said October 31st, directed the same to be written up for his signature as judge of the probate court, juvenile division, as aforesaid. * * *’

Answering paragraph 11:

‘Respondent admits that the order of October 31, 1919, was written and signed upon December 11, 1919, and that on that date the same was handed to Walter F. Clinton, deputy probate register, for filing, as a valid order of the court. Respondent admits that the said Walter F. Clinton, deputy probate register, did make the said order as filed October 31, A. D. 1919, and respondent denies all other matters in said paragraph 11. Respondent, further answering said paragraph, avers: That the said order was properly filed as of date October 31, 1919, for the reason that said order was actually made on said October 31, 1919, although not then written up, and that respondent on said October 31, 1919, directed the writing up of the order as indicated by respondent. That through press of business of respondent's stenographer the said order was not actually written up on said October 31, 1919, and was overlooked for some days thereafter, respondent having in mind that the said order had actually been written up, signed, and filed. That when respondent, in looking through the files in said cause, first noticed that the said order had not actually been written up, signed, and filed, he forthwith gave instructions that the said order should be so written up, and that he did thereupon sign the same and file the same as hereinabove stated. Respondent further avers that the actual writing out and signing of orders indicated and directed is, under the practice of the probate court of the county of Kent, and the juvenile division thereof, ordinarily and in a large number of instances done on a day subsequent to the actual indication and direction for such orders, for the reason that a very large number of orders are made daily in the said probate court, and it is many times impossible to have said orders actually written up and signed on the day the same were made; that such orders are always, under the practice of the probate court, filed as of the date they bear, respectively, which is the date when said orders are indicated and directions given for writing up the same. * * *

‘And respondent avers that the said orders including the order of October 31, 1919, hereinabove referred to, are, when actually written up, signed, and filed, valid orders as of the date when the same are indicated and directions given for writing up the same; that the order of October 31, 1919, was actually made on said October 31, 1919, being the date when respondent, as judge of the probate court, juvenile division, did in...