Dora v. Lesinski, 23
| Decision Date | 01 October 1957 |
| Docket Number | No. 23,23 |
| Citation | 351 Mich. 579,88 N.W.2d 592 |
| Parties | Gladys E. DORA, Plaintiff, Cross-Defendant and Appellant, v. Delphine M. LESINSKI, Guardian of Maxine B. Lesinski, Mentally Incompetent, and Antoinetee Goscicki, Defendants, Cross-Plaintiffs and Appellees. , |
| Court | Michigan Supreme Court |
Casper C. Cutler, Detroit, for plaintiff-appellant.
Berger, Manason & Kayes, Robert S. Ernstein, Detroit, for defendant, cross-plaintiff and appellee Goscicki.
Joel K. Underwood, Detroit, for defendant, cross-plaintiff and appellee Lesinski.
Before the Entire Bench.
There are at least two reasons why the appellant cannot prevail on this appeal. In the first place most if not all of the questions she seeks to raise here are based upon matters lying outside of and not properly a part of the record on appeal. Thus virtually all of her exhibits here were either not offered below or were excluded by the trial court from the settled record on appeal. Her statement of facts and of questions involved are thus in large measure based upon matters which are not properly supported by the record before us and which were also not properly before the trial court below. We further note that the argument in the brief made here does not address itself directly even to those questions which might arguably by said to have otherwise been properly raised. Therefore any questions so raised but not properly discussed must be deemed to be waived.
We are bound to review the trial court's action on the record as certified to us. City of Garden City v. Holland, 331 Mich. 566, 570, 50 N.W.2d 158, citing cases. We have further held that a record on appeal cannot be supplemented by an affidavit of the trial judge (Associates Discount Corp. v. Gear, 334 Mich. 360, 367, 54 N.W.2d 687). We think it must follow that the 'exhibits' and ex parte affidavits of a litigant designed to supplement what he conceives to be a defective record should command no greater weight before us than similar contributions made by a presumably less interested trial judge. Despite these observations, which might well control the disposition of this case, we shall decide this appeal on still another ground.
This case grows out of chancery litigation involving a liquor license. The differences of the parties were finally adjusted and resolved below and resulted in the entry of a consent decree. This decree provided that in a certain contingency, there elaborately set out, the present appellant should pay $1,500 to her own attorney as escrow agent, for the use and benefit of appellees, the escrow agent to pay some back sales and other taxes therefrom on the licensed establishment and then turn over the balance remaining to appellees. The contingency happened; the money was turned over by appellant to the escrow agent; the opposite parties did their parts; the escrow agent duly paid the back taxes of $894.64. So far so good. But the escrow agent failed to turn over the balance of $605.36 to appellees as provided in the decree, claiming he had on hand but $68.36 having devoted the remainder to paying other outstanding indebtedness he felt should properly be paid. Most of the appellant's brief here is devoted to showing us why these actions of the escrow agent were proper despite the fact they were not authorized by the consent decree. We may add that there is no showing here that either the appellant or her escrow agent ever sought the authority or consent of the court or the other parties prior to paying these other debts.
Appellees, not getting their money, filed a petition below to construe the decree whereupon an order was promptly entered by the chancellor requiring the escrow agent to turn over to appellees the balance remaining after payment of the taxes, all as provided in the original consent decree. Instead of doing so the appellant, represented by her escrow agent, has appealed that order to this Court.
It is elementary that one cannot appeal from a consent...
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In re Kennedy
...2 Mich.App. 548, 555, 140 N.W.2d 791 (1966). "A consent judgment reflects primarily the agreement of the parties. Dora v. Lesinski, 351 Mich. 579, 582, 88 N.W.2d 592 (1958). The action of the trial judge in signing a judgment based thereon is ministerial only. The parties have not litigated......
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...judgment that reflects the intent of those parties. Union v. Ewing, 372 Mich. 181, 186, 125 N.W.2d 311 (1963); Dora v. Lesinski, 351 Mich. 579, 582, 88 N.W.2d 592 (1958). Because the parties each have agreed to limit the insurers' prejudgment interest liability to the limits of their respec......
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People Of The State Of Mich. v. Richmond
...her claim. Although we agree with the proposition that one may not appeal from a consent judgment, order or decree, Dora v. Lesinski, 351 Mich. 579, 88 N.W.2d 592 (1958), we do not believe a dismissal expressly necessitated by and premised upon a dispositive evidentiary ruling is a “consent......
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Shuler v. MICH. PHYSICIANS MUT. LIABILITY CO.
...the law as it then existed does not amount to a consent judgment, order, or decree that MPMLC cannot appeal. See Dora v. Lesinski, 351 Mich. 579, 582, 88 N.W.2d 592 (1958). The plaintiff-patients also argue that the judgment rendered was a "final, nonappealable" judgment not subject to modi......