Goodrich v. White
| Decision Date | 29 October 1878 |
| Citation | 39 Mich. 489 |
| Court | Michigan Supreme Court |
| Parties | Horace D. Goodrich v. Phineas White |
Submitted October 17, 1878
Error to Lapeer.
Assumpsit. Defendant brings error.
Judgment affirmed with costs.
W. W & M. N. Stickney for plaintiff in error.
Gecr & Williams for defendant in error.
Goodrich, being sued on a note payable in several installments with annual interest, upon an alleged default in payment of an installment subsequent to the first, set up in defense that a mortgage foreclosure had been commenced and carried to decree on a mortgage given to secure the note. It appeared on the trial that this was the case, and that all the property had been sold. The court below disregarded this defense and gave judgment against him.
The statute is very clear that no such action can be brought without leave of the court where the foreclosure was had. Comp. L., § 5149.
The defense, however, is not an absolute want of power to sue at all, but a want of power to sue without leave. We held in Joslin v. Millspaugh, 27 Mich. 517, that pendency of proceedings in equity could not be pleaded in abatement at law, but that resort should be had to the court of equity to restrain the unauthorized suit. This is the case where suits are brought by receivers. Wynne v. Lord Newborough, 1 Ves. Jr. 164; Anonymous, 6 Ves. 287. The objection is not one which lies in bar of the cause of action, but only to the authority to sue without leave, which does not touch the merits.
Bringing such a suit is an abuse which the court below should have checked by a stay, if applied to for that purpose. There may be reasons not necessarily bearing on the debt as a legal obligation, which would justify the court in equity in refusing leave, which could not properly be granted ex parte where defendant was within reach. We are not prepared to say that judgment should not be stayed upon a sufficient showing of equities if they exist. Upon this, as it was not argued, we give no opinion. But we think the defendant below ought to have made a motion originally to stay proceedings, before going to trial. This would have compelled the plaintiff to become a moving party to get leave, inasmuch as the statute is imperative, and would have enabled the propriety of granting leave to be settled on its own merits. The question was not one for the jury.
We are therefore compelled to affirm the judgment with...
To continue reading
Request your trial
-
Stewart v. Eaton
...with the statute above cited prescribed by the lex fori was necessary, and, if so, how it should be complied with, for in Goodrich v. White, 39 Mich. 489, it was held this statute was waived by defendant not moving to stay the proceedings and in going to trial, as was done in this case. Pas......
-
Sessions v. Sherwood
...of a decree on that principle. Adair v. Cummin, 48 Mich. 375, 12 N.W. 495; Blake v. Hubbard, 45 Mich. 1, 7 N.W. 204; Goodrich v. White, 39 Mich. 489; Bonker Charlesworth, 33 Mich. 81; Gamble v. East Saginaw, 43 Mich. 367, 5 N.W. 416; Peters v. Hansen, 55 Mich. 276, 21 N.W. 342; Nims v. Vaug......
-
F. M. Sibley Lumber Co. v. Murphy
...following Michigan cases also sustain the rule: People ex rel. Granger v. Judge of Wayne Circuit, 27 Mich. 405, 15 Am. Rep. 195;Goodrich v. White, 39 Mich. 489;Murphy v. Granger, 32 Mich. 358;Peninsular Electric Co. v. Norris, 100 Mich. 496, 59 N. W. 151;McLaughlin v. Austin, 104 Mich. 489,......
-
Gates v. Tebbetts
... ... v. Connell, 3 Wheaton; Smith v. Moore, 53 Mo.App ... 531; Destrehan v. Scudder, 11 Mo. 484; Barney v ... White, 46 Mo. 137; Wernse v. McPike, 100 Mo ... 476; Iron Works v. Riggin, 14 Mo.App. 321. (3) The ... decree in the foreclosure suit is a bar to an ... St. 47; Burwell v. Martin, 2 Dougl. 417; Very v ... Watkins, 18 Ark. 546; Draper v. Mann, 117 Mass ... 439; Ely v. Ely, 6 Gray 439; Goodrich v ... White, 39 Mich. 489; Copperthwait v. Dummer, 18 ... N. J. L. 258; Hatfield v. Kennedy, 1 Bag. (S. Car.) ... 501; Watson v. Hawkins, 60 Mo ... ...