George v. Murphy

• Decision Date: 08 June 1953
• Docket Number: No. 405,405
• Citation: 336 Mich. 543,58 N.W.2d 915
• Parties: GEORGE v. MURPHY, Wayne County Circult Judge. * Motion
• Court: Michigan Supreme Court

Page 915

58 N.W.2d 915

336 Mich. 543

GEORGE v. MURPHY, Wayne County Circult Judge. ^*

Motion No. 405.

Supreme Court of Michigan.

June 8, 1953.

Markle, Markle & Eubank, Detroit, for petitioner.

Henry J. Meurer, Detroit, David Goldman, Detroit, of counsel, for defendant.

Before the Entire Bench

BOYLES, Justice.

This is an original proceeding in this Court for mandamus to compel Circuit Judge George B. Murphy in Wayne county to set aside an order granting a new trial.

In re Chambers' Estate, 333 Mich. 462, 53 N.W.2d 335, we held that the circuit judge had erred in granting a motion for judgment non obstante veredicto in favor of the contestant in a will contest, in which the jury had returned a verdict for the proponent. We remanded the case for certification to the probate court, admitting the will to probate. In accordance with said order of this Court, the trial judge certified the will to the probate court, where it was then admitted to probate and letters testamentary issued to one Stella George, the executrix named in the will. In the meantime, after our decision and while the matter was thus pending in the probate court, the contestant filed in circuit court a motion for a new trial which Judge George B. Murphy granted on the ground the verdict was against the great weight of the evidence.

Thereupon Stella George, the proponent and the executrix under the will by appointment of the probate court, filed the instant petition in this Court for mandamus to compel the circuit judge to set aside and vacate said order. We issued an order nisi, directing the circuit judge to show cause why a peremptory writ of mandamus should not issue out of this Court to compel him to set aside the order granting a new trial, and to enter an order denying said motion. Return has been made and the case submitted.

Under the circumstances, the circuit judge was without power to grant a new trial.

'The policy of the law is that when a case has once been considered and disposed of by the courts before which it may lawfully be brought, it is disposed of for all time, and the conclusion cannot be attacked in any new proceeding except upon certain equitable grounds which are foreign to the present discussion. The court rendering the conclusive judgment may have a discretionary authority to review and revise its own action, but if that court shall have taken the case on appeal, and shall have remanded it after judgment, the court below can have no similar authority, because if it could and should exercise it, it would really be reviewing and revising the action of its superior; which would be absurd. 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 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.' Lyon v. Ingham, Circuit Judge, 37 Mich. 377, 378.

'When this case was last before us we affirmed the decree of the court below. * * * On November 29, 1918, a petition of plaintiff to vacate a portion of the decree as affirmed was filed in the court below without leave of this court having been first obtained and on the same day it was granted. From the order granting the prayer of this petition defendants Hurson appeal. * * * There must be a finality to litigation and when the court of last resort of a state has finally adjudicated the rights of parties, it cannot remain for the court to which the case is remanded to determine whether such adjudication shall be enforeed.' Thompson v. Hurson, 206 Mich. 139, 172 N.W. 544.

The circuit judge in granting a new trial relied on Peters v. Aetna Life Ins. Co., 1937, 282 Mich. 426, 276 N.W. 504, which case followed a like decision in 1935--In re Cummins' Estate, 271 Mich. 215, 259 N.W. 894. The reason for the rule announced in those cases was eliminated by an amendment to Court Rule No. 66, § 8, in 1938. ¹ The effect of the amendment was considered by the Court in St. John v. Nichols, 331 Mich. 148, at pages 158-159, 49 N.W.2d 113, 118. In that case the ground on which this Court granted a new trial and remanded the case for that purpose after setting aside a judgment non obstante veredicto should be noted. The Court said:

'This court possesses inherent power, however, to order a new trial whenever it deems that the ends of justice so require',

and pointed to ...