Garwood v. Burton
| Decision Date | 06 January 1936 |
| Docket Number | No. 90.,90. |
| Citation | 264 N.W. 349,274 Mich. 219 |
| Parties | GARWOOD et al. v. BURTON et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Suit by Thomas Garwood and another against Charles W. Burton and others, to foreclose a land contract. Decree of foreclosure was rendered, and from an order setting aside a commissioner's sale and deed, plaintiffs appeal.
Affirmed and prior decree of Supreme Court amended.
Appeal from Circuit Court, Livingston County; Joseph H. Collins, judge.
Argued before the Entire Bench.
Carl H. Stuhrberg, of Ann Arbor, for appellants.
C. Upton Shreve, of Detroit, and Shields & Smith, of Howell, for appellees.
On April 14, 1932, the court below made a decree of foreclosure of a land contract in the above-entitled cause; determined the amount due plaintiffs (vendors) from defendant Burton (assignee of the vendees); and required of such defendant that he pay such amount with a designated rate of interest to plaintiffs, ‘on or before sixty days from the date of the filing of this decree, and in default of said payment of said amount on or before said date’ the premises were to be sold at public auction under the direction of a circuit court commissioner. Plaintiffs appealed therefrom, and this court, in its opinion, filed December 19, 1933, affirmed such decree. Garwood v. Burton, 265 Mich. 408, 251 N.W. 564.The decree of this court was filed in the circuit court on December 29, 1933, following such opinion, in which it was stated, among other things, that the decree of the lower court was ‘in all things affirmed.’ Plaintiffs proceeded immediately thereafter to advertise the sale of such premises, and the commissioner's sale was held on February 26, 1934, or fifty-nine days after the filing of the decree of this court in the court below. Plaintiffs purchased the property at such sale for the sum of $1,309.50, and on March 10, 1934, recorded the commissioner's deed therefor. On June 7, 1934, defendant Burton filed a petition in this cause in the court below, seeking to have the sale and deed declared ‘null and void.’ After a hearing thereon, the circuit court, on July 25, 1934, entered an order setting aside, vacating, and declaring null and void such commissioner's sale and deed. Plaintiffs appeal therefrom.
Plaintiffs here contend that the petition of defendant Burton to have the commissioner's sale and deed declared null and void was in effect a petition for a rehearing and that by virtue of Michigan Court Rule No. 48, the court below was powerless and without jurisdiction to hear or grant such petition.
3 Comp.Laws 1929, § 15516, provides: ‘When an appeal shall have been so heard and determined, the records and files sent from the circuit courts in chancery, together with the proceedings and decree or order of the supreme court therein, and all things concerning the same shall be remitted to the circuit court in chancery, for the proper county, when such further proceedings shall be thereupon had as may be necessary to carry such decree or order into effect.’
The decree affirmed by this court was a decree of foreclosure of a land contract. Further proceedings were necessary by its very terms in order to carry such decree into effect. The decree provided for a commissioner's sale. This was a ‘further proceeding’ necessary in order to carry the decree into effect, and by virtue of the above statute the circuit court had jurisdiction to supervise such sale.
In Lyon v. Ingham County Circuit Judge, 37 Mich. 377, 378, this court, in discussing this very question, said: ‘All the discretion which the inferior court can have must concern the execution of the judgment or decree which has been sent down to it; if no directions have been given [by the appellate court] as to these, it would have the ordinary powers in respect to it, as it would have had if it had been entered by itself.’
In Thompson v. Hurson, 206 Mich. 139, 172 N.W. 544, 545, this court, after quoting with approval from Lyon v. Ingham County Circuit Judge, supra, said:
The circuit court did not attempt to disturb or amend the decree of this court. It entered its order setting aside the commissioner's sale and canceling his deed. This, it had authority to do.
Do the facts and circumstances, as shown by the record, equitably warrant the entry of an order setting aside, vacating, and...
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People v. Fisher
...enjoy the same power as if it made the ruling itself. Lyon v. Ingham County Circuit Judge, 37 Mich. 377 (1877); Garwood v. Burton, 274 Mich. 219, 222, 264 N.W. 349 (1936). Though clearly this Court felt some evidence of the victim's state of mind was inadmissible hearsay, more prejudicial t......
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People v. Davis, Docket No. 309525.
...itself. [Id. at 446–447, 537 N.W.2d 577, citing Lyon v. Ingham County Circuit Judge, 37 Mich. 377 (1877), and Garwood v. Burton, 274 Mich. 219, 222, 264 N.W. 349 (1936) (quotation marks and citation omitted).] As relevant to this case, once an original sentence is vacated, the case is place......
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Laurence G. Wolf Capital Management Trust v. City of Ferndale, No. 282565 (Mich. App. 2/19/2009), No. 282565.
...v Fisher, 449 Mich 441, 447; 537 NW2d 577 (1995); see also Johnson v White, 430 Mich 47, 53; 420 NW2d 87 (1988), and Garwood v Burton, 274 Mich 219, 222; 264 NW 349 (1936). "The power of the lower court on remand is to take such action as law and justice may require so long as it is not inc......