Cartwright, In re

• Decision Date: 26 April 1961
• Docket Number: No. 43,43
• Citation: 363 Mich. 143,108 N.W.2d 865
• Parties: In the Matter of the Revoval of Arthur CARTWRIGHT. Edwin A. HAKENJOB, Plaintiff and Appellee, v. Arthur CARTWRIGHT, Defendant and Appellant.
• Court: Michigan Supreme Court

Page 865

108 N.W.2d 865

363 Mich. 143

In the Matter of the Revoval of Arthur CARTWRIGHT Edwin A. HAKENJOB, Plaintiff and Appellee, v. Arthur CARTWRIGHT, Defendant and Appellant.

No. 43.

Supreme Court of Michigan.

April 26, 1961.

Samuel H. Olsen, Pros. Atty. for Wayne County, Hobart Taylor, Jr., Aloysius J. Suchy, Asst. Pros, Attys., Detroit, for plaintiff-appellee.

Reymont Paul, Detroit, for defendant-appellant.

Before the Entire Bench.

CARR, Justice.

Appellant herein was appointed as a bailiff of the common pleas court of the city of Detroit in 1941, and thereafter proceed for a number of years to perform the duties of said office in connection with the service of process. By order of three judges of said court he was removed on January 27, 1960, and his name stricken from the list of bailiffs. Such action was taken following a hearing, before the judges signing said order, on a petition filed by the clerk of said court, on January 6th preceding, alleging that defendant had abandoned and vacated the office in violation of statute because of his failure to serve process assigned to him. From the order entered an appeal was taken to the circuit court of Wayne county which, under date of July 21, 1960, affirmed the order of the common pleas court. In connection with the proceeding in the circuit the parties filed a stipulation of facts in lieu of a transcript of the testimony taken on the hearing above mentioned. On appeal to this Court it is the claim of defendant that the order of removal was unauthorized by law and unwarranted under the facts.

The stipulation of facts filed in circuit court, and incorporated in the record before us, sets forth that in his capacity as bailiff appellant served process from the common pleas court until July, 1958, when he advised the clerk of the court that he wished to take a vacation and requested that process assigned to him should be delivered to another bailiff for service. Apparently the request was complied with, the clerk presumably assuming that appellant's vacation period would be reasonably limited. However, during the period from July, 1958, until early in January, 1960, another bailiff, Gerald Clancy, continued to serve process assigned to defendant under a rotating system initiated by the court, a portion of the fees received therefor being turned over to defendant. Apparently he received during the period in question amounts varying from $35 to $150 per month while giving his time and efforts to his personal business affairs.

It was further stipulated that the practice had been observed on occasions by the bailiffs in the common pleas court to work 'in teams', assisting one another in the service of process. It does not appear, however, that arrangements of the character entered into by Mr. Cartwright had been made by other bailiffs or had been sanctioned by the judges of the court. It is a fair inference that the practice referred to in the stipulation was adopted in some instances to facilitate the service of process and to insure the making of proper service in the event that the bailiff to whom the process had been assigned in rotation was unable to act. In 1957 appellant signed a statement or declaration, at the request of the clerk of the court, setting forth his willingness and ability to serve process. In the early part of 1960 he renewed performance of the duties of his office, for which he received fees paid after the date of the institution of the removal proceeding.

On the filing of the petition asking Mr. Cartwright's removal from the office of bailiff the clerk was directed by the presiding judge of the common pleas court to omit the name of appellant from the list of bailiffs authorized to serve process in garnishment and assumpsit proceedings. Such order did not prevent appellant from serving writs of execution, replevin and attachment. Whether he actually served such writs following the order of suspension does not appear.

The common pleas court of the city of Detroit is governed by the provisions of P.A.1929, No. 260, as amended (C.L.1948, § 728.1 et seq., as amended [Stat.Ann. & Stat.Ann.1959 Cum.Supp. § 27.3651 et seq.]). The statute fixes the jurisdiction of the court, provides for the election of the judges and duties thereof, and for the appointment of a clerk and bailiffs. Section 28 of the act (C.L.1948, § 728.28 [Stat.Ann.1959 Cum.Supp. § 27.3679]) reads as follows:

'Every bailiff of the city in which the court is situated serving process out of any such court shall be answerable thereto for all his conduct in the line of duty; and it shall be the duty of every such court to compel bailiffs serving process out of such court to perform their duties, to examine into complaints against them, to determine their guilt or innocence of misfeasance and/or malfeasance in office and to discipline any offending bailiffs in manner as herein provided. Inquiry into the conduct of any bailiffs serving process out of any such court shall be instituted on complaint by the clerk thereof or by any person conceiving himself aggrieved, in manner as hereinafter provided, and may be instituted by such court on its own motion whenever the presiding judge or whenever any judge or judges thereof assigned to deal with such matters consider it expedient to do so. Where the inquiry is instituted on the court's own motion the procedure shall be as prescribed by court rule adopted by a majority of the judges of such court. On complaint in writing by the clerk of any such court or in writing under oath by or on behalf of any person conceiving himself aggrieved, to the presiding judge or such other judge or judges thereof assigned to receive such complaint, stating allegations of fact from which it appears to the examining judge that any bailiff serving process out of such court is guilty of any misconduct in office, such judge shall issue an order in writing directed to such bailiff requiring him to appear before the presiding judge or any judge or judges of said court assigned to hear such complaint, at a time fixed in such order, and show cause why said court should not take disciplinary action against such bailiff. A copy of said complaint and order shall be served on such bailiff prior to the date of hearing, the time and manner of service to be fixed in the order. No complaint, after the filing thereof as aforesaid, may be withdrawn nor shall the same or any proceeding thereon be dismissed or discontinued except by written order of the court for good cause shown, the reasons therefor to be stated in the order. The judge or judges hearing said complaint may permit or, on the court's own motion, order the filing of amendments thereto, may continue the hearing thereon from time to time, as the...