Clutton v. Clutton

• Decision Date: 22 October 1895
• Citation: 106 Mich. 690,64 N.W. 744
• Court: Michigan Supreme Court
• Parties: CLUTTON v. CLUTTON. SAME v. DONOVAN, CIRCUIT JUDGE.

64 N.W. 744

106 Mich. 690

CLUTTON v. CLUTTON.

SAME v. DONOVAN, CIRCUIT JUDGE.

Supreme Court of Michigan

October 22, 1895

Appeal from circuit court, Wayne county.

Action on relation of Jonathan L. Clutton against J. W. Donovan circuit judge, for writ of mandamus to compel defendant to dismiss an action of divorce brought against the relator's wife, and action by Jonathan L. Clutton against Annie J. Clutton for divorce, consolidated. Defendant filed a cross bill in the action for divorce, and, from an order dismissing the same, appealed. On motion to dismiss the appeal. Writ of mandamus and motion to dismiss both denied.

John Ward, for appellant, and for respondent in mandamus proceedings.

Franklin L. Lord and John Atkinson, for appellee on motion to dismiss appeal, and for relator on application for mandamus.

McGRATH, C.J.

Annie J. Clutton appeals from an order sustaining a demurrer to her cross bill, and complainant moves to dismiss the appeal on the ground that the order was not a final order. Complainant after the order appealed from was made, moved the court below for an order permitting him to dismiss his bill, but the court denied the motion, and complainant asks for a mandamus to compel the court to grant his request. It appears that at the time that the motion for leave to dismiss was made there was pending an application for temporary alimony and solicitors' fees. The right of a complainant to dismiss his bill without prejudice on payment of costs is of course except in certain cases. 1 Beach, Mod. Eq. Prac. � 450. Irrespective of the question of the pendency of the cross bill, we think the case comes within the exceptions to the general rule stated. A reference had been made upon defendant's application, and pending a determination of the questions involved in that application defendant had the right to remain in court. Id. �� 451, 452; 1 Barb Ch. Prac. 225, note 18. The court afterwards made an allowance as alimony and solicitors' fees. It is urged that this order was made after the matter of the application had been partially heard before another judge of the same court, and without notice. The judge before whom it is alleged that the matter was partially heard was absent in Europe, and it appears that the motion for leave to discontinue was made before the same judge who finally made the order for alimony. The answer sets up that the complainant's solicitor was present...