Checker Mut. Auto. Ins. Co. v. Miller

• Decision Date: 04 June 1951
• Docket Number: No. 449,449
• Citation: 48 N.W.2d 129,330 Mich. 553
• Parties: CHECKER MUT. AUTO. INS. CO. v. MILLER, Judge. Motion
• Court: Michigan Supreme Court

Page 129

48 N.W.2d 129

330 Mich. 553

CHECKER MUT. AUTO. INS. CO. v. MILLER, Judge.

Motion No. 449.

Supreme Court of Michigan.

June 4, 1951.

Edward N. Barnard, Detroit, for plaintiff and appellant.

William J. McBrearty Detroit, for defendant and appellee.

Before the Entire Bench.

SHARPE, Justice.

This petition for writ of mandamus involves the power of a circuit judge to deny a stay of proceedings upon the filing of a copy of an insurance policy as provided for under P.A.1935, No. 45, C.L.1948, § 522.33a, Stat.Ann. § 24.297.

On October 11, 1950, judgments were entered in the case of Catherine Hodgdon v. Stanley M. Barr and Jim Stankye in the amount of $10,000 and in the case of Fred Hodgdon v. Stanley M. Barr and Jim Stankye in the amount of $2,000 in the circuit court of Wayne county. An appeal was taken by defendants to the Supreme Court in both of these cases. On October 31, 1950, plaintiff herein, Checker Mutual Automobile Insurance Company, insurer of Stankye, filed its petition in each case for a stay of execution pending appeals under the provisions of P.A.1935, No. 45, C.L.1948, 522.33a, Stat.Ann. § 24.297, before Judge Guy A. Miller, one of the judges of the circuit court of Wayne county.

The petition for a stay reads as follows:

'Checker Mutual Automobile Insurance Company, a Michigan Insurance Corporation, for and in behalf of the above named defendants and appellants, respectfully show the court as follows:

'1. That an appeal from the judgment entered on the 11th day of October, A.D.1950, in said cause was taken to the Supreme Court of the State of Michigan, on behalf of the defendants, Stanley M. Barr and Jim Stankye, on or about October 26th, 1950, by filing a claim of appeal in accordance with the rules and practice of this court, and that petitioner is duly authorized to make this application.

'2. That the liability of the defendants and appellants is insured against by the Checker Mutual Automobile Insurance Company, a Michigan Insurance Corporation, the petitioner herein, duly authorized to do such business in the State of Michigan, and that attached hereto is a true copy of said policy of insurance.

'3. Checker Mutual Automobile Insurance Company, a Michigan Insurance Corporation, admits its liability to the assured under said policy and agrees to pay the judgment entered against the said injured in said cause if the same is finally affirmed by the appellate court, but not exceeding the amount of its liability under said policy.

'Wherefore, pursuant to Act 45, Public Acts of 1935, Michigan Statutes Annotated, Section 27.297[24.297] petitioner prays that upon the filing of a true copy of said Policy of Insurance this Court enter an order staying execution in said causes pending said appeal.'

On November 6, 1950, the trial court denied the application for a stay of proceedings and in an opinion stated:

'My conclusion is that Public Act 45 of the Acts of 1935 cannot be construed as amending or limiting the effect of Section 27.1453, which is above cited. The utmost effect that can be given to it is that it shall be read parallel to the provisions of that Section, and that it shall authorize the acceptance of insurance policies up to their face amount in making up the amount of bonds on appeal in favor of the beneficiary under the policy in question.

'My ruling on this motion is that the $5000 policy may be considered in making up a full $15,000 security in favor of the beneficiary of the policy, but that it cannot be considered as making up any security by way of stay of proceedings in favor of the other defendant who is not secured by that policy. For this purpose the two judgments may be lumped together and considered as a single judgment.

'An order may be entered to that effect.'

Upon petition, we entered an order to show cause why a writ of mandamus should not issue to which Judge Miller filed an answer and return. Pending a determination of the proceedings in mandamus we issued a stay against the execution of the judgments.

Act No. 45, P.A.1935, reads as follows: 'Whenever an appeal is taken from any judgment in any case wherein it shall appear to the court that all or a part of the particular liability of the appellant thereunder is insured against, in and by any surety company or insurance carrier, authorized to do such business in Michigan, and the court is satisfied of the applicable coverage of such policy or suretyship, it shall not be required of the appellant to provide any appeal bond or bond to stay execution pending such appeal, but such insurance carrier or surety company may be required by the court and is hereby given authority to execute its written recognizance to the opposite party or parties for the payment of the taxable costs of such appeal: Provided, Such surety company or insurance carrier shall deposit with said court a copy of said insurance policy or bond and shall admit its liability thereunder, and agree to pay such judgment against its insured, if any, as shall be affirmed by said appellate court, but not exceeding the amount of the liability under said policy or bond; and in such case the court having jurisdiction thereof, on its own motion, may enter judgment against said surety company or carrier to such extent without further proceedings.'

This act amends P.A.1917, No. 256, pt. 3, ch. 2, subdiv. 6, the insurance code, by adding a new section to stand as section 33a.

The act does not expressly refer to C.L. 1948, § 622.23, Stat.Ann. § 27.1453, which covers the subject of stay of proceedings and provides that no stay shall issue upon any judgment 'unless the party applying for such stay, if judgment shall have been rendered against him, shall execute to the adverse party a bond with sufficient sureties in such sum as the circuit judge, before whom the cause was tried, shall designate, conditioned to pay such judgment if the same is not set aside or reversed and that if a writ of error is issued in said cause that the appellant shall prosecute his writ to effect and shall pay and satisfy such judgment as shall be rendered against him thereon. * * *'

There can be no question but that section 33a, P.A.1935, No. 45 amends by implication the act relating to stay of proceedings. The trial court held that if ...