David v. Hansel

• Decision Date: 02 June 1924
• Docket Number: No. 80.,80.
• Citation: 227 Mich. 351,198 N.W. 907
• Parties: ISRAELITE HOUSE OF DAVID v. HANSEL et al.
• Court: Michigan Supreme Court

227 Mich. 351

198 N.W. 907

ISRAELITE HOUSE OF DAVID

v.HANSEL et al.

No. 80.

Supreme Court of Michigan.

June 2, 1924.

Error to Circuit Court, Berrien County; L. Burget Des Voignes, Judge.

Action by the Israelite House of David against John W. Hansel and others. Order of dismissal, and plaintiff brings error. Reversed.Argued before CLARK, C. J., and McDONALD, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ.

W. J. Barnard, of Paw Paw, for appellant.

Dilley, Souter & Dilley, of Grand Rapids, for appellee Walter M. Nelson.

CLARK, C. J.

The Israelite House of David, a voluntary association, commenced an action in trespass on the case against Walter M. Nelson and many other defendants. The declaration avers a conspiracy by and between defendants to slander, defame, and blackmail plaintiff, and sets forth certain claimed collusive acts of defendants in furtherance of such conspiracy. Defendant Nelson, for himself and perhaps other of the defendants, filed a motion--

‘to dismiss this cause and to quash all services of processes and papers in this cause for the following reasons:

‘1. Because this court has no jurisdiction of the parties.

‘2. Because this court has no jurisdiction of the subject-matter of said suit as disclosed by said declaration.

‘3. Because the United States District Court for the Western District of Michigan, in equity, has exclusive jurisdiction of the parties and of this cause in a suit therein entitled, ‘John W. Hansel et al., Plaintiffs, v. Benjamin Franklin Purnell, the Israelite House of David, et al., Defendants' (No. 1949).

‘4. Because the declaration in this cause states no cause of action in favor of the plaintiff and against the defendants, or any number or combination of them.

‘5. Because the declaration does not state a cause of action.

‘6. Because the declaration does not charge conspiracy, libel or slander.

‘7. Because said declaration charges no wrong on the part of the defendants or any of them, on which the voluntary association may maintain a suit.

‘8. Because this suit, and the services of process therein, is an unlawful attempt to harass, impede and intimidate an attorney at law, an officer of this court and of the federal court, in the performance of his duty as such an officer.

‘9. Because this suit is an attempt to intimidate, harass and annoy necessary and material witnesses and parties in suits pending in the federal court and in this court.

‘This motion is based on the files and records of this court in this cause, the declaration therein contained and on the files and records of other courts in other causes, follows.'

Here follows a recital by title of certain causes as pending in the circuit court of Wayne county, the circuit court of Berrien county, and the United States District Court for the Western District of Michigan. The motion was granted as to Mr. Nelson. The order granting the motion is based chiefly upon matter not shown to have been before the court upon either the declaration or the motion to dismiss. Plaintiff brings error.

[1] 1 and 2. These reasons are not discussed, and are treated as abandoned.

[2][3] 3. Seemingly, appellee here relies upon the pendency of a former suit in abatement of this suit. Formerly, the proper practice was to tender this issue by plea in abatement. Muir v. Kalamazoo Corset Co., 155 Mich. 624, 119 N. W. 1079. But under 3 Comp. Laws 1915, § 12456, this question may now be raised by motion to dismiss. Pagenkoff v. Insurance Co., 197 Mich. 166, 163 N. W. 1000;Haney v. Grand Rapids Trust Co., 221 Mich. 160, 190 N. W. 684. The record does not disclose that there was properly before the trial court, and there is not before this court, any showing in support of this contention.

‘It is well said that it is necessary for the party...