Doe v. Oceola Tp., Docket Nos. 77-2454

• Decision Date: 06 July 1978
• Docket Number: 77-2455,Docket Nos. 77-2454
• Citation: 270 N.W.2d 254,84 Mich.App. 514
• Parties: John DOE, Plaintiff-Cross Defendant-Appellee-Cross Appellant, v. TOWNSHIP OF OCEOLA, an unincorporated body politic, Defendant-Cross Plaintiff-Appellee, and Director of Michigan State Police, Defendant-Appellant (77-2454) (Appellee 77-2455), and Attorney General of Michigan, Defendant-Cross Plaintiff-Appellant (77-2454), and John Doe (Thomas D. Powell), Defendant-Counter Claimant (Appellant 77-2455). 84 Mich.App. 514, 270 N.W.2d 254
• Court: Court of Appeal of Michigan — District of US

Page 254

270 N.W.2d 254

John DOE, Plaintiff-Cross Defendant-Appellee-Cross Appellant, v. TOWNSHIP OF OCEOLA, an unincorporated body politic, Defendant-Cross Plaintiff-Appellee, and Director of Michigan State Police, Defendant-Appellant

(77-2454) (Appellee 77-2455),

and

Attorney General of Michigan, Defendant-Cross

Plaintiff-Appellant (77-2454),

and

John Doe (Thomas D. Powell), Defendant-Counter Claimant

(Appellant 77-2455).

Docket Nos. 77-2454, 77-2455.

84 Mich.App. 514, 270 N.W.2d 254

Court of Appeals of Michigan.

July 6, 1978.

Released for Publication Sept. 18, 1978.

[84 MICHAPP 515] Downs & Pirich by Tom Downs, Lansing, for John Doe-Thomas powell.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen. by Bernard Rosner, Asst. Atty. Gen., for the Atty. Gen., and Director of Mich. State Police.

John Ashton, Richard T. Haynes, Plymouth, Moon, McGivney & Reeds by Michael J. McGivney, Brighton, for John Doe.

Foster, Swift, Collins by William K. Fahey, Lansing, for Oceola Tp.

Before J. H. GILLIS, P. J., and D. E. HOLBROOK and KAUFMAN, JJ.

D. E. HOLBROOK, Judge.

On October 8, 1974, at approximately 10:30 a. m., plaintiff John Doe embarked[84 MICHAPP 516] upon a hunting expedition over certain undeveloped lands in Oceola Township. Plaintiff admitted that he had no permission to enter this land, but also noted that the owner had not posted it with "No Trespassing" signs. During the course of his expedition, the plaintiff came upon an area where branches and leaves had been placed over a freshly dug hole; beneath this debris plaintiff uncovered a rather large metal suitcase.

Plaintiff returned home with his "game", and after a single half-hearted attempt to open it he left it in his garage and retired into his home to other pursuits. Later the same day, plaintiff informed the state police of his most recent acquisition and an officer was dispatched to investigate. Together, plaintiff and the state police officer pried open one corner of the suitcase sufficiently far to determine that it contained a substantial amount of paper currency.

The state police then took custody of the suitcase and its contents, and by order of the Livingston County Circuit Court it was turned over to the Treasurer of the State of Michigan to hold pending determination of any claims which might arise regarding it. On November 27, 1974, plaintiff John Doe filed a complaint in Livingston County Circuit Court seeking a declaratory judgment pursuant to GCR 1963, 521, adjudicating the respective rights of any parties in and to the discovered materials, and praying that these materials be determined to be common law treasure-trove, or, in the alternative, lost goods under M.C.L. § 434.1, Et seq.; M.S.A. § 18.701, Et seq., the lost goods and stray beasts act, hereinafter called the lost goods act.

Under the former doctrine, plaintiff's rights to the money would be superior to those of anyone except the rightful owner. Under the latter statute,[84 MICHAPP 517] plaintiff would be required to remit one-half of the value of the property to the government of the township in which the property was found if it remained unclaimed following the statutory period.

Defendant Attorney General intervened and filed an answer to the plaintiff's complaint, and also filed a cross-complaint contending that the code of escheats, M.C.L. § 567.11, Et seq.; M.S.A. § 26.1053(1), Et seq. effectively repealed the lost goods act and is therefore controlling. Defendant township filed an answer to each of these complaints and in addition filed a cross-complaint claiming an interest in the property under the lost goods act.

John Doe, defendant, the owner of the property upon which the suitcase was found, also entered an appearance by his attorney and filed a cross-complaint alleging ownership of the property. He moved for accelerated judgment and identified himself as Thomas D. Powell. He relied on his ownership of the land and alleged ability to identify and describe both money and suitcase. On January 22, 1975, this motion was denied.

On February 14, 1975, Powell was deposed. He testified as to the general description of the suitcase and contents. While the suitcase contained $383,840, Powell testified that it contained $338,000 and that he could not be off by more than $1,000. Powell's entire description of the suitcase and contents indicated substantial knowledge of the property, however, it was inaccurate in so many more-or-less minor details that its firsthand nature was called into question. Powell repeatedly refused to answer any questions as to the source of the money. He did claim that a friend named Glen Kavlish could verify his ownership of the money, [84 MICHAPP 518] however, Kavlish was unavailable to testify as he could not leave his two ill parents in Florida. Powell also testified that his property was not enclosed by a fence and that there were no "No Hunting" or "No Trespassing" signs posted on the property.

The Attorney General and Powell each moved for summary judgment. On May 23, 1977, the trial court entered summary judgment for plaintiff John Doe and Oceola Township under the lost goods act. The court found that Powell had not established ownership or a right to possession of the property. He found that the code of escheats did not apply to the facts, that it did not repeal the lost goods act, and that the Attorney General did not have standing to raise it in the instant case. The court also ruled that the property was not "treasure-trove" at common law, as it had not been abandoned for the requisite time period. From entry of Summary judgment for plaintiff John Doe and the township, the Attorney General and Powell appeal by right.

GCR 1963, 117 specifically provides for rendition of summary judgment where there exists "no genuine issue as to any material fact", GCR 1963, 117.2(3). This rule was adopted in Michigan, and other similar rules were adopted in other jurisdictions, in an effort to reduce the expense and delay of litigation where, for one of the enumerated reasons, a full trial on the merits is not required. Nevertheless, "in deciding whether the case is appropriate for summary judgment, the court must be strictly sure that it is not required to pass summarily upon any genuinely disputed issue of fact. In this sense, this rule is strictly construed." African Methodist Episcopal Church v. Shoulders, 31 Mich.App. 290, 293, 187 N.W.2d 536, 537 (1971), citing [84 MICHAPP 519] 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p. 359. The frequently cited concurring opinion of Mr. Justice SOURIS in Durant v. Stahlin, 375 Mich. 628, 655, 135 N.W.2d 392 (1965),...