Cattermole v. Ionia Circuit Judge

• Decision Date: 05 April 1904
• Court: Michigan Supreme Court
• Parties: CATTERMOLE v. IONIA CIRCUIT JUDGE.

99 N.W. 1

136 Mich. 274

CATTERMOLE v. IONIA CIRCUIT JUDGE.

Supreme Court of Michigan

April 5, 1904

Mandamus on the relation of Walter J. Cattermole, to review the action of the Ionia circuit judge in quashing a writ of capias ad respondendum. Writ denied.

Miller & McKenna and Chaddock & Scully, for relator.

Adolphus A. Ellis, for respondent.

GRANT J.

The relator obtained the arrest of one Reuben E. Van Houten on a capias ad respondendum. The court, on the motion of Van Houten's attorneys, quashed the writ and proceedings thereunder, and discharged the defendant. The relator plaintiff in the suit, applies to this court for the writ of mandamus to review this judgment of the court and compel it to be set aside. Is mandamus the proper remedy?

It is a rule of almost universal application that this writ will not be entertained when there is another complete and adequate remedy. The judgment or order in this case is final. It has disposed of the plaintiff's case as effectually as though there had been a trial and judgment. He clearly has a remedy by writ of error. Sheridan v. Briggs, 53 Mich. 569, 19 N.W. 189; Paulus v. Grobben, 104 Mich. 42, 62 N.W. 160; Shaw v. Ashford, 110 Mich. 534, 68 N.W. 281; De Long v. Briggs, 47 Mich. 625, 11 N.W. 412; Brown v. Kelley, 20 Mich. 27; Marble v. Curran, 63 Mich. 283, 29 N.W. 725. In Dages v. Sanilac Circuit Judge, 122 Mich. 490, 81 N.W. 355, the circuit court entered an order quashing a writ of replevin with costs, and the plaintiff sought to review the case in this court by mandamus. It was held that the order was final, was reviewable upon writ of error, citing several authorities, and denied the writ. It is true that we have recently entertained applications of this character, but evidently the question of remedy was not raised. In principle we see no difference between this and Dages v. Sanilac Circuit Judge, and the other cases cited.

It follows that the writ must be denied. The other Justices concurred.

HOOKER J. (concurring).

The quashing of the writ or service in a case, upon a motion to quash, has often been raised in different classes of cases, such as capias, attachment, summons, declaration, garnishment, and replevin, and in many of them the orders or judgments have been set aside on mandamus. In the majority of these, opinions have not been written, and there is little to indicate the considerations which actuated the court, where, if in any of them, it has omitted to apply the rule that 'mandamus will not lie where there is a remedy by writ of error or appeal.' In no case, so far as we have discovered, has the court failed either to apply the rule or give a reason for not doing so, where it has been called to its attention. That there may have been some liberality exercised by the court where the question of the propriety of the remedy was not raised is probable, and, as was said by Mr. Justice Moore in the case of Michigan Mutual Fire Ins. Co. v. Circuit Judge, 112 Mich. 271, 70 N.W. 582, decisions have not been uniform: 'In view of the growing frequency of applications for mandamus asking this court to review the action of subordinate courts, resulting in overloading this court with work which does not finally dispose of the case, it becomes important to decide whether, in a situation like the one at bar, the writ should issue. We are aware that the decisions of this court have not been uniform, and for that reason it is difficult to lay down a rigid rule which shall be followed in all cases. As the writ is a discretionary one, perhaps it is not desirable that an inflexible rule should be established. We think, however, a review of the decisions will indicate, in a general way, when the writ should and when it should not issue. It is a general rule that the writ 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. To this rule an exception is made if the slowness of ordinary legal forms is likely to produce such immediate injury or mischief as ought to be prevented. Merrill, Mand. � 198; People v. Cass Circuit Judge, 39 Mich. 410; Talbot Paving Co. v. Detroit Common Council, 91 Mich. 262 . 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. On the contrary, if the court claims jurisdiction in a case where it is not entitled to exercise it, such action of the court can be reviewed by an appeal or writ of error. In such a case the writ of mandamus ought not to issue.' When that opinion was written it was the deliberate intention of the court to reduce the practice by mandamus to uniformity, so far as practicable, with reference to the disposition of cases upon jurisdictional questions, denying the writ, under the well-settled rule, where jurisdiction was retained. But the case clearly recognizes the rule that mandamus should not issue where error or appeal will lie except where the slowness of legal forms is likely to produce immediate injury or mischief, which ought to be prevented. There are cases of the quashing of writs, and the dismissal of cases--both final orders--where the remedy by writ of error is not available, and there mandamus lies, because the record will not show the error. But there are others where the records show the error, and in such cases mandamus will not ordinarily lie. Exceptional conditions of exigency may justify the issue of the discretionary writ in both classes of cases.

That the foregoing is the proper method of applying the remedies is not only indicated by the case of Mutual Fire Ins. Co. v. Circuit Judge, supra, but it is expressly stated in the recent case of Dages v. Sanilac, Circuit Judge, 122 Mich. 490, 81 N.W. 355, filed two years after the former case, and when the discussion of the former case was fresh in the minds of all, in which exactly this distinction is shown, and authorities cited, showing that mandamus had been sustained where the writ of error would not raise the point, and denied when it appeared in the record.

Thus, in replevin brought in circuit court, the court held that error was the proper remedy, because the record showed the error. Pingree v. Steere, 68 Mich. 204, 35 N.W. 905, was a similar case.

In Olson v. Circuit Judge, 49 Mich. 85, 13 N.W. 369, the circuit court reversed a case on special appeal from justice court, and gave judgment upon grounds, raised before the justice, going to the jurisdiction. Application was then made for a mandamus to compel the circuit court to vacate his order and proceed with the case. It was there said: 'On examination of the record it is plain that the court is asked to revise the final judgment of the circuit court upon grounds and matters which appear of record, and where everything necessary to a determination would be regularly returnable on writ or error. That the jurisdiction by mandamus is not suitable is clear.' The cases cited to the point by relator's counsel are distinguishable. Stall v. Diamond, 37 Mich. 429; O'Brien v. Tallman, 36 Mich. 13; Mabley v. Judge of Superior Court, 32 Mich. 190; Wiley v. Circuit Judge, 29 Mich. 487.

A case involving a similar question is Orth v. Circuit Judge, McGrath's Mandamus Cases, 717. There a death was suggested and a cause revived. On the case being called up for trial, it was dismissed on motion, for the reason that the action did not survive. The order to show cause was denied June, 1896, on the ground that relator's remedy was writ of error.

These cases are all cited in Dages v. Circuit Judge. In this connection we call attention to People v. Wayne Circuit Judge, 1 Mich. 359. In that case relators appealed to the circuit from a justice's judgment. The court dismissed the appeal for want of jurisdiction, no recognizance having been filed. A mandamus was asked, and it was denied. The court said: 'Upon these facts, this court is asked for a mandamus to compel the judge of the county court to undo what he has done, to reinstate the cause in this court, to permit the relators to file an amended recognizance, and to proceed to the trial of the cause. It is a well-settled rule, already recognized in several cases in this court, that a mandamus does not lie when the party has another and an adequate remedy. By section 67 of the act of 1849, to consolidate the laws in relation to county courts and for other purposes, it is provided that 'in all cases of judgment rendered by such court, in any civil suit, either party thinking himself aggrieved or injured by such judgment, or by any opinion or direction of the court, may remove the cause by bill of exceptions,...