Equitable Trust Co. v. Bankers' Trust Co.
| Decision Date | 18 September 1934 |
| Docket Number | No. 48.,48. |
| Citation | 256 N.W. 460,268 Mich. 394 |
| Parties | EQUITABLE TRUST CO. v. BANKERS' TRUST CO. et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Wayne County, in Chancery; James E. Chenot, Judge.
Bill by the Equitable Trust Company against the Bankers' Trust Company and another. From an interlocutory order, plaintiff appeals.
Remanded, with instructions to modify the order.
Argued before the Entire Bench.
Morris Garvett, of Detroit, for appellant.
Joslyn, Joslyn & Joslyn, of Detroit, for appellee Norman Fill.
Frank C. Cook and John P. O'Hara, both of Detroit (A. L. Baumann, of Detroit, of counsel), for appellee Bankers' Trust Co. of Detroit.
On December 20, 1926, Samuel K. Melon and wife executed a first mortgage to the Bankers' Trust Company of Detroit and subsequently a second mortgage to the United States Trust Company, as trustee for bondholders, on property improved with a multiple apartment building in Detroit, Mich. The Equitable Trust Company claims that it became vested with the title to the mortgage, as successor trustee, after the United States Trust Company changed its name and later merged with the Equitable Trust Company. The second mortgage contained a rent assignment clause. On August 1, 1933, the Equitable Trust Company, as trustee, notified the tenants of its rights under the mortgage and demanded payment. It also recorded a notice thereof in the office of the register of deeds. Dispute having arisen as to who was entitled to the rents, the Equitable Trust Company, as trustee, filed a bill of complaint against the Bankers' Trust Company. In an amended bill of complaint, it also joined as defendant one Norman Fill of Toronto, Canada, who acquired title to the premises subject to incumbrances by quitclaim deed. The sole relief sought in the amended bill of complaint is the enforcement of the rent assignment clause and an injunction to restrain the defendants from interfering with the collection of rents by plaintiff. Defendants deny the valid effect of the assignment clause in the mortgage and also plaintiff's right to enforce it, even if valid. Defendant Fill also claims the benefit of the moratorium statutes (Act 98 of the Public Acts of 1933). He bases his claim on the fact that the Bankers' Trust Company has begun foreclosure proceedings by advertisement. We shall not discuss his claim, as the only question presented on appeal is whether the court properly entered an interlocutory order appointing receivers to collect the rents and apply the amounts collected toward payment of past-due taxes on the property.
The question arose as to whether the appeal should not be dismissed because appellant failed to first obtain consent to appeal. An appeal from the granting or denial of an interlocutory order, as a rule, is in the nature of mandamus. If the order is not a final disposition of the subject-matter of the suit or a part of it, the court will dismiss the appeal, unless consent to appeal has been first obtained. This court will not review a case piecemeal. If it should finally be determined that plaintiff is not entitled to the rents, a decision at the present time as to the propriety of the interlocutory order would...
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