Boyce v. Osceola Circuit Judge

• Decision Date: 08 January 1890
• Citation: 44 N.W. 343,79 Mich. 154
• Court: Michigan Supreme Court
• Parties: BOYCE v. OSCEOLA CIRCUIT JUDGE.

44 N.W. 343

79 Mich. 154

BOYCE v. OSCEOLA CIRCUIT JUDGE.

Supreme Court of Michigan

January 8, 1890

Application for mandamus.

How. St. Mich. � 7822, provides that the court in which judgment in an action of ejectment is rendered, "at any time within three years thereafter, upon the application of the party against whom the same was rendered, * * * and upon payment of all costs and damages recovered thereby, shall vacate such judgment, and grant a new trial," etc.

C A. Withey, for relator. C. H. Rose, for respondent.

PER CURIAM.

This is an application for mandamus to compel the respondent, as circuit judge of Osceola county, to grant a second trial in ejectment, under the provisions of section 7822 of Howell's Statutes. The cause was tried before a jury, who, under the direction of the court, rendered a verdict in favor of the defendant in the suit on April 27 1886, and judgment was entered on the verdict on that day. Plaintiff, the petitioner herein, removed the cause to this court by writ of error, and on June 9, 1887 the judgment of the court below was affirmed. ^[1] On November 25, 1889, the plaintiff, having paid all the costs, made application for second trial of the cause. This application the trial court denied, on the ground that more than three years had elapsed since the rendition of the judgment in the circuit court upon the verdict.

In this the court was in error. Under the provisions of this statute the plaintiff had the right to the second trial upon payment of costs, and application made therefor within three years after the affirmance of the judgment in this court. A somewhat analogous question arose in Clark v. Circuit Judge, 62 Mich. 355, 28 N.W. 894, under section 7839 which provides for the payment into court, in ejectment suits, of such sums as shall be assessed for buildings and improvements within one year after rendition of judgment for the recovery of the premises. It was held that the statutory year runs from the time of entering final judgment in the cause, and is suspended pending the removal of the cause to this court. In that case the time was computed from the time of entry of the judgment in this court. In the present case the judgment was entered in this court on June 9, 1887. The application for the second trial was made within the three years from the entry of that judgment; and the second trial should have been allowed, under the provisions of the...