Detroit Trust Co. v. Blakely

• Decision Date: 06 June 1960
• Docket Number: No. 43,43
• Citation: 359 Mich. 621,103 N.W.2d 413
• Parties: DETROIT TRUST COMPANY, as Trustee under Trust Agreement with Jessie E. Pound, Plaintiff-Appellee, v. Janice E. BLAKELY et al., Defendants-Appellant.
• Court: Michigan Supreme Court

Page 413

103 N.W.2d 413

359 Mich. 621

DETROIT TRUST COMPANY, as Trustee under Trust Agreement with Jessie E. Pound, Plaintiff-Appellee, v. Janice E. BLAKELY et al., Defendants-Appellant.

No. 43.

Supreme Court of Michigan.

June 6, 1960.

Donald W. Grant, Detroit, for Muriel J. Paul, defendant-appellant.

Miller, Canfield, Paddock & Stone, Detroit, for Detroit Bank and Trust Co.

Donald W. Grant, Detroit, for beneficiaries and in pro per.

Before the Entire Bench.

BLACK, Justice (for dismissal of appeal).

Four years ago, in the case of In re Fitch Drain No. 129, 346 Mich. 81, 91, 77 N.W.2d 450, 457, an overdue acknowledgment of this Court's immediate procedural debt to the profession was written--en solitaire--for the record of the future. ¹ Our continued inaction since then rises to haunt us now.

The obligation--so cast upon us by the crescently visible mass of perplexity section 1 of Court Rule 60 has generated--remains past due and unpaid. To prove out this compound of contradiction I need but expose (for comparison with Mr. Justice Carr's opinion as written in this case) the record of our unpublished doings in another case where, as here, the Wayne circuit in chancery has assumed long-continuant supervisory jurisdiction over the assigned work of an appointed arm of the court.

I refer to Harvey v. Lewis, 357 Mich. 305, 98 N.W.2d 599. The opinion in that case does not tell today's story. It does, however, serve as an introduction to our internal record of steady dismissal, in the same cause, of a series of appeals claimed of right from a series of like interlocutory orders. ² Such orders are temporal duplicates of the order before us, as we shall see.

In Harvey v. Lewis one of the parties in interest claimed (January 31, 1959) an appeal of right from an order of the chancellor directing operation of the Brookdale Cemetery (described and considered in Harvey v. Lewis, supra). Under date of January 7, 1960 (our No. 48,164) such appeal was dismissed by this Court for want of application and grant of leave.

In the same cause one of the parties in interest claimed (May 21, 1959) an appeal of right from an order of the chancellor determining that a certain mortgage affecting the subject matter had been discharged. Under date of November 24, 1959 (our No. 48,279) such appeal was dismissed by this Court for want of application and grant of leave.

In the same cause one of the parties in interest claimed (June 12, 1959) an appeal of right from an order authorizing the payment of compensation to the receiver (and to counsel for the receiver). Under date of November 24, 1959 (our No. 48,332) such appeal was dismissed by this Court for want of application and grant of leave.

In the same cause one of the parties in interest claimed (June 22, 1959) an appeal of right from an order authorizing the receiver to erect a permanent building in the Brookdale Cemetery. Under date of January 7, 1960 (our No. 48,336), such appeal was dismissed by this Court for want of application and grant of leave.

In the same cause one of the parties in interest claimed (July 16, 1959) appeal of right from an order instructing the receiver to defend title to the Brookdale Cemetery (as was thereafter done in Harvey v. Lewis, supra). Under date of January 7, 1960 (our No. 48,376), such appeal was dismissed by this Court for want of application and grant of leave.

What was said in In re Fitch Drain is as true today as in 1956. The only difference is that 4 more years or inexcusable lethargy on the part of this Court have intervened to aggravate the uncertainty of judges here and counsel below when the problem question is recurrently presented: Is this order, this judgment, this decree, appealable of right? This Court only can answer the question with tape-measured certainty. Until our membership rises in unison to rewrite said section 1 (of Court Rule 60) in terms of blunt simplicity, the question will continue to receive doughbaked answers--good only for the day and case.

Turning now to the appeal before us. I would dismiss it for want of application and grant of leave. The appealed order is by no means final. It amounts to no more than a determination of the chancellor that he will not--on this single beneficiary's petition--surcharge the co-trustee to the extent of the fee paid its counsel (Miller, Canfield, Paddock and Stone). Save only as to one beneficiary of the trust (the petitioner herself, Muriel J. Paul), that order cannot in any conceivable way bind the parties in interest, adult and minor. The reason is that such remaining beneficiaries were not brought before the court on the occasion of entry of such order, as they previously were--with religious regularity--throughout the pendency of this continuing-since-1951 chancery proceeding.

I suggest that my venerable Brother has confused the petition for instructions, which was filed June 27, 1958 (and proceedings pursuant thereto which culminated in the chancellor's order of instructions entered July 8, 1958), with the instant petition (filed May 18, 1959) to require the co-trustee 'to replace or repay trust funds.' Such former petition came to hearing only after due proceedings had been taken to bring before the court all interested parties, including the presently absent beneficiaries. ³ Nothing like that was done in pursuance of the instant petition, and no pretense to the contrary is made or indicated in the briefs before us or in the original circuit court record.

Mrs. Paul's petition brought before the court one only of the many interlocutory matters which, in the course of this continuing-over-the-years chancery proceeding of supervisory nature, has been brought and will be brought to judicial surveillance. In this instance the chancellor might well have dismissed the petition with suggestion that the presented issue be submitted when the next account of the trustees--showing the questioned disbursement to counsel--is formally offered up for judicial allowance and approval. Why? Because that is the proper way--and the proper time--to question an allegedly improper disbursement by a fiduciary; a time when all parties in interest are standing at the bar of the court.

In connection with this last observation, I would note that the 'Eighth Account' of the trustees, reflecting as it should the questioned disbursement to counsel, was filed below since this appeal was claimed. Such account, plus a series of preceding accounts of the trustees as filed, yet awaits due presentation to the chancellor for adjudicatory approval. Which is to say that Mrs. Paul's petition was quite out of order and that the order of denial thereof left in its wake no prejudice to ultimate objection assigning the same reasons in support.

Justice Carr notes that no motion to dismiss this appeal has been submitted. That is true. It is equally true of numerous other instances where appeals to this Court are claimed of right (where of right they have no business here save on granted leave); with appellee counsel agreeably willing that the appealed matter come here for decision (with consequent involvement of appellate work which some person, some trust, some receivership, or some other client, must pay for). ⁴ But that factor provides no ground for the assumption of appellate jurisdiction when a want of such jurisdiction appears on the face of the record sent here. Otherwise, the action or inaction of counsel will determine in just too many cases that appeals belonging here only on leave may stay here for decision without such leave.

We need no motion to dismiss this appeal as a prod to duty. We do lack a liberal does of purposeful gumption.

KAVANAGH and SOURIS, JJ., concurred with BLACK, J.

CARR, Justice.

The order of the trial court from which the appeal in this case has been taken should be affirmed. The facts are not in dispute. The attorney for appellant herein, and the Detroit Trust Company, now the Detroit Bank and Trust Company, are cotrustees of an inter vivos trust being administered in court. In 1958 some difference of opinion arose between the trustees with reference to the making of a certain proposed investment of trust funds. In consequence a petition was filed requesting instructions from the court with reference to the matter. In such proceeding the Trust Company was represented by counsel, the other trustee, an attorney, apparently appearing in his own behalf. Under date of July 8, 1958, the trial court entered an order holding that the investment would be improper and that it should not be made. Apparently said order contained no provision with reference to the payment of an attorney fee to counsel representing the Trust Company.

Following the action referred to counsel representing the Trust Company, as trustee, submitted a statement in the sum of $758.26 for legal services rendered in connection with the petition for instructions. Said charge was paid by the Trust Company from funds of the trust. Thereupon the cotrustee demanded that the trust fund be reimbursed in the amount named. Such demand was not complied with and a petition was filed in the trial court on behalf of appellant, a beneficiary under the trust, for an order requiring the repayment of the attorney's fee on the ground that such payment without the consent of the cotrustee was improper and unlawful. Following a hearing the trial court denied the petition, thereby upholding and approving the payment in question. From such order this appeal has been taken.

At the outset we are confronted by the question whether the order approving the payment from trust funds was a final order and hence appealable as of right. Mr. Justice Black has written for dismissal on the theory that the order was merely interlocutory and could not be appealed to this Court other than on leave granted. We are not in accord with such disposition of the case. The petition for instructions filed by the cotrustees was fully...