Detroit Tug & Wrecking Co. v. Gartner

• Decision Date: 21 June 1889
• Parties: DETROIT TUG & WRECKING CO. v. GARTNER, CIRCUIT JUDGE.
• Court: Michigan Supreme Court

42 N.W. 968

75 Mich. 360

DETROIT TUG & WRECKING CO. v. GARTNER, CIRCUIT JUDGE.

Supreme Court of Michigan

June 21, 1889

Mandamus.

SHERWOOD C.J., and CAMPBELL, J., dissenting.

CHAMPLIN, J.

Motion for mandamus to compel the circuit judge to grant a new trial. The granting or refusing a motion for a new trial is a matter which rests in the discretion of the trial court. It is so clearly so that it is conceded that this court has no jurisdiction to interfere with the decision of the circuit court except it be to correct an abuse of the discretion exercised by it. To warrant this court in interfering in matters so entirely in the sound discretion of the circuit court, as the granting or refusing a new trial, the abuse of discretion ought to be so plain that, upon consideration of the facts upon which the court acted, an unprejudiced person can say that there was no justification or excuse for the ruling made. It is therefore of the first importance that the facts upon which the circuit court acted in refusing a new trial in this case should be fully stated and considered. In applications for mandamus this court must rely upon the facts set up in the return, or answer of the respondent. The return of the circuit judge is as follows:

"This respondent, in answer to the order to show cause granted on the 30th day of October, 1888, respectfully shows: (1) It is true, as set forth in the petition of the relator, that a judgment was recovered by Henry McMorran, therein named against Samuel A. Murphy; and this respondent shows that said judgment was for the sum of $8,329.28, upon a promissory note executed by said Murphy to the said McMorran. (2) It is also true that said McMorran caused a writ of garnishment to issue under the seal of said court against the First National Bank of Detroit, as garnishee of said Murphy, and that said bank filed its answer and disclosure to said writ showing that there was on deposit in said bank the sum of $984.65 to the credit of Samuel A Murphy; and said disclosure further shows that on the 4th day of January, 1888, it had received a notice, of which the following is a copy: 'Detroit, Mich., Jan. 3, 1888. Chas. B. Lothrop, Atty. First Nat. Bank, Detroit, Mich.-Dear Sir: All the money in the First National Bank to the credit of S. A. Murphy at the time said bank was garnished by Henry McMorran belonged to the Detroit Tug & Wrecking Company, and you are hereby notified that the company own the same, and will hold the bank responsible therefor. [Signed] Very truly yours, MOORE & MOORE, Attorneys for Det. Tug & Wk. Co.' And this respondent shows that said Moore & Moore are also the attorneys for the said Samuel A. Murphy in the suit in which the aforesaid judgment was recovered. (3) It is also true, as stated in said petition, that an order was entered in said garnishee suit, requiring the petitioner to appear and interplead, with which order the petitioner complied. (4) That, said garnishee suit being at issue upon claims made by said petitioner, said cause was regularly noticed for trial at the last June term of said circuit court. That said cause was set for trial on Friday, the 29th day of June, 1888, and that the usual printed notice that said cause would be reached on that day was sent to the attorneys of the respective parties, and that upon the application of said Moore & Moore, attorneys for said petitioner, the trial of said cause was postponed until the 6th day of July, 1888, at which time the plaintiff, who resides at Port Huron, was present in court with his witnesses, ready to proceed with said trial. That upon said cause being called the attorneys for said petitioner represented to the court that Samuel A. Murphy, named in said petition, was not present, and requested that said trial should be postponed until the next day, and that in compliance with said request the trial of said cause was postponed until the opening of the court on the following day, at which time the said plaintiff with his witnesses were in court, as were also the attorneys for said petitioner, and the said case was called for trial. That petitioner's attorneys stated to the court that they had given said Murphy notice. That they were in no position to ask for further indulgence or further delay, and that the said petitioner's attorneys made no request for any further postponement or for any further delay in said trial, but proceeded with said trial without objection, and cross-examined witnesses for the plaintiff. After hearing the evidence offered by the plaintiff, the cause was submitted without argument and without any request by petitioner's counsel for delay, and a judgment was thereupon rendered in favor of said plaintiff, as stated in said petition. (5) That at no time was any showing made by petitioner or its attorneys of any effort being made to secure the attendance of said Murphy as a witness, either by the issuing of subp na or otherwise; nor was any cause shown or stated why the petitioner was unable to secure his attendance upon the day when said cause was tried. (6) That it satisfactorily appeared from the evidence in the case that the said Murphy had an account at said bank in his own name, individually, and that there was at the time no account at said bank with said Murphy as 'president,' or with said 'Murphy, Pt.;' nor was there any account at said bank in the name of the said petitioner. That the account of said Murphy with said bank was opened on the 23d day of August, 1886, the pass-book being in his own name, and that he had from time to time deposited considerable sums of money to said account, drawing against the same by checks in his own name, and that no claim was made that any of the moneys in said account belonged to any other person, until after the service of said writ of garnishment. That soon after said writ was served said Murphy called at said bank and asked to see the deposit slip which accompanied the deposit of the $1,813.36. That said slip was in said Murphy's own name, individually, and in his own handwriting. That upon receiving said slip from the bank, and subsequent to the service of said writ of garnishment, he surreptitiously changed the same by adding the letters 'Pt.,' so as to make it read, 'S. A. Murphy, Pt.,' and folded the slip in such a way as to conceal the change which he had made, and that said change was discovered by the book-keeper of said bank immediately after said Murphy had left the bank, and that said book-keeper reported the same to the president of the bank. (7) It is true, as stated in said petition, that a motion for a new trial was made therein, and that the petitioner, in support of said motion, presented the affidavits attached to said petition, and that there was also presented in opposition to said motion by plaintiff's attorneys certain affidavits, copies of which are hereto annexed, marked 'Exhibits E, F, and G,' and that, it appearing to the court from said affidavits, and from all the facts and circumstances, that the petitioner could, by the exercise of ordinary diligence, have secured the attendance of said Murphy as a witness at the trial of said cause, but had failed to do so, or make any proper effort to that end, and that justice between the parties would be promoted by denying said motion, said motion for a new trial was denied. Respondent submits that the refusal to grant said motion for a new trial was a proper exercise of discretion on his part, and that the prayer of said petitioner should be denied. [Sgd.] GEO. GARTNER, Circuit Judge. Dated Nov. 27, 1888."

The following are the affidavits against the motion, omitting captions:

"Hercules Desallier, being duly sworn, says that he is acquainted with the defendant Samuel A. Murphy, and has known him since the 17th day of April last; that since the 18th day of April he has been employed as watchman on vessels in which said Murphy claims to be interested, including the tug Gladiator, the Chamberlain, the schooner Johnson, lying at or near Beaubien's dock, or the dock next above Beaubien's, in Springwells; that on Saturday, the 7th day of July, he was acting as watchman on the schooner Johnson, lying at said dock; that the scow or barge Grace Amelia was being fitted out at that time by said Murphy for Toledo, she being the vessel referred to in an affidavit made in this cause on the 9th day of July by said Murphy, which has been read to deponent; that said barge lay immediately astern the Johnson, on which deponent was acting as watchman, and from which some of the canvas and other outfit was removed to be put on board the Grace Amelia; that the deponent saw the men at work, and knows who were there on board and about the Grace Amelia during the forenoon of said Saturday, and that he knows said Murphy was not there during the forenoon, nor was he there until about 7 o'clock of the evening of that day; that deponent saw him when he came, (he driving there in his buggy,) and that he also saw him when he went away, and that he was not there more than about fifteen minutes. Deponent feels confident that, had said Murphy been about said scow or barge, or at work in fitting her out as stated in his affidavit, deponent would have seen him there. [Signed] H. DESALLIER. Subscribed and sworn to before me this 14th day of July, 1888. JULIA LINCOLN, Notary Public, Wayne Co., Mich." "Samuel Murdock, being duly sworn, says that he is personally acquainted with Samuel A. Murphy, and has known him for about two years, and has sailed as a vessel master for him for more than one year; that deponent is now the master of the propeller Chamberlain, in which said Murphy is, or claims to be, interested; that on Saturday, July 7, 1888, deponent saw said Murphy on Griswold street in the city of Detroit

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