Geib v. Graham
| Decision Date | 11 February 1942 |
| Docket Number | No. 43.,43. |
| Citation | 2 N.W.2d 493,300 Mich. 534 |
| Parties | GEIB v. GRAHAM. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Action by Fred P. Geib against Annie Graham to recover money. From an order dismissing plaintiff's action with prejudice, plaintiff appeals.
Affirmed.
Appeal from Superior Court of Grand Rapids; Thaddeus B. Taylor, judge.
Before the Entire Bench, except WIEST, J.
Fred P. Geib, of Grand Rapids, in pro. per. for appellant.
Linsey, Shivel, Phelps & Vander Wal, of Grand Rapids, for appellee.
Plaintiff, Fred P. Geib, prosecuted to successful conclusion a claim against the City of Grand Rapids, as a result of which defendant, Annie Graham, recovered a large sum of money. See Smith v. City Commission, 281 Mich. 235, 274 N.W. 776;Wylie v. City Commission, 293 Mich. 571, 292 N.W. 668;Wylie v. City Commission (In re Geib), 297 Mich. 365, 297 N.W. 526, 527. He now seeks to recover additional compensation from the defendant despite our finding in Re Geib, which was a part of our determination in the last Wylie case just cited. The circuit judge, being of the opinion that the entire matter had been fully determined in Re. Geib, entered an order dismissing plaintiff's action with prejudice. Mr. Geib seeks reversal on the ground that, since he had demanded a trial by jury, the court erred in dismissing his cause before taking proofs. He argues that he was thereby deprived of his day in court.
We cannot agree with Mr. Geib's contention. The proceedings last had in this chain of litigation included his claim for attorney fees. Our opening statement in Re Geib, supra, was: ‘This proceeding is one for the purpose of fixing the amount of attorney fees and distribution of funds impounded by the trial court.’We expressly passed upon the questions of both an implied and expressed contract, saying:
Mr. Geib cannot successfully argue that In re Geib, supra, is not res adjudicata, but relies upon his claimed right to present all of his case before an order of dismissal can properly be entered. He cites our recent decision in Brachman v. Hyman, 298 Mich. 344, 299 N.W. 101. That case is distinguishable. There it was alleged that the prior judgment in a mandamus action, which was said to be controlling and res adjudicata, was procured as a part of a fraudulent conspiracy.
Determination of plaintiff's claim that he was deprived of his day in court is controlled by the principle enunciated by Mr. Justice Cooley in Spicer v. Bonker, 45 Mich. 630, 8 N.W. 518, 519. In...
To continue reading
Request your trial
-
Ambrose v. Detroit Edison Co.
...argument. Although such a dismissal based on these grounds does not deprive the plaintiff of his day in court, Geib v. Graham (1942), 300 Mich. 534, 535, 2 N.W.2d 493, trial courts should be slow to exercise this power. As stated in Haynes v. Maybury (1911), 166 Mich. 498, 503, 131 N.W. 111......
- Fid. & Cas. Co. of N.Y. v. Vantaggi
-
Ambrose v. Detroit Edison Co.
...at the close of the plaintiff's opening statement to the jury does not deprive the plaintiff of his day in court. In Geib v. Graham (1942), 300 Mich. 534, 535, 2 N.W.2d 493, it was 'Mr. Geib seeks reversal on the grounds that, since he had demanded a trial by jury, the court erred in dismis......