Great Lakes Realty Corp. v. Peters

• Decision Date: 13 April 1953
• Docket Number: No. 74,74
• Parties: GREAT LAKES REALTY CORP. v. PETERS.
• Court: Michigan Supreme Court

Page 901

57 N.W.2d 901

336 Mich. 325

GREAT LAKES REALTY CORP. v. PETERS.

No. 74.

Supreme Court of Michigan.

April 13, 1953.

Robert D. Anspach and Julius C. Pliskow, Detroit for defendant and appellant.

Chester Smith, Detroit, for appellee.

Before the Entire Bench.

ADAMS, Justice.

In 1943 Tom and Monie Peters purchased a home on land contract in the city of Detroit for $3,000. In 1950 they failed to make contract payments and the Great Lakes Realty Corporation, owner of the fee and vendor, elected to forfeit the contract. Required notices were served and summary proceedings commenced in the circuit court commissioner's court.

On the return day, November 13, 1950, defendants personally appeared in court and upon a finding that there was $673.90 due to the Great Lakes Realty Corporation, a judgment was entered in favor of the vendor. On February 15, 1951, a writ of restitution issued on the judgment. Five days later on February 20, the Peters filed a bill of complaint in the Wayne county circuit court praying that the writ of restitution be set aside and that they be permitted to redeem from the forfeiture. Contemporaneously with the commercement of the chancery action, Peters deposited with the clerk of the court $1,214.03, the estimated entire balance due on the contract and a temporary injunction restraining execution of the writ of restitution issued. Later, after hearing, a decree was entered and then set aside on motion. On January 30, 1952, the chancery action was dismissed by stipulation.

In the meantime and prior to the dismissal of the chancery action, it was brought to the attention of the court through the testimony of a medical doctor that Tom Peters had been mentally incompetent, in the doctor's opinion, since 1947 and that Monie Peters was incapable of understanding legal proceedings. Tom Peters died on October 28, 1951, Upon being informed of their mental condition, the circuit judge promptly appointed Chester Smith as next friend for Monie Peters, and on November 20, 1951, Chester Smith, as next friend of Monie Peters, survivor of herself and Tom Peters, moved for authorization to take a delayed appeal from the judgment of the circuit court commissioner. On January 18, 1952, an order was entered in the Wayne county circuit court granting leave to appeal.

The Great Lakes Realty Corporation then petitioned this Court for leave to appeal from the order of the circuit judge granting delayed leave to appeal, which application was denied on March 7. On June 10, 1952, the appeal from the circuit court commissioner was heard by the circuit court and judgment again entered in favor of the vendor, the court finding that the entire balance due on the contract amounted to $1356.63. From that judgment the Great Lakes Realty Corporation takes this appeal.

Monie Peters, by her next friend, takes the position that this appeal should not be considered by this Court, her reasoning being twofold. First, because the application to this Court of the Great Lakes Realty Corporation for leave to appeal from the order of the circuit court granting a delayed appeal was denied and that, therefore, the propriety of that order has been passed upon and has become res judicata. Such is not the case.

'We do not construe the denial of an application for leave to appeal as foreclosing litigants from ultimate review of interlocutory orders on appeal in the principal case. The denial of an application for leave to appeal is ordinarily an act of judicial discretion equivalent to the denial of certiorari. It is held that the denial of the writ of certiorari is not equivalent of an affirmation of the decree sought to be reviewed. United States v. Carver, 260 U.S. 482, 43 S.Ct. 181, 67 L.Ed. 361; Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251, 36 S.Ct. 269, 60 L.Ed. 629.' Malooly v. York Heating & Ventilating Corp., 270 Mich. 240, 247, 258 N.W. 622, 624.

Secondly, she says, and the record supports her statement, that Great Lakes Realty Corporation, appellant, failed to serve a copy of their claim of appeal on appellee as required by section 1, subd. (c), Court Rule No. 58 (1945). Such failure to follow the rules could very properly have been the basis for a motion to dismiss the appeal. Appellee did not so move. Instead, for the first time, she raises the objection in her brief. She has waited too long.

'Appellee did not make a motion in this Court to dismiss the appeal on the ground that no leave had been granted, and in the absence of such motion the objection comes too late when first raised in the appellee's brief. Toledo Pipe Organ Co. v. Paradise Theatre Co., 318 Mich. 342, 28 N.W.2d 224; Steggles v. National Discount Corporation, 326 Mich. 44, 39 N.W.2d 237 .' Hoekstra by Hoekstra v. Byker, 329 Mich. 311, 45 N.W.2d 297, 298.

Turning then to the issues raised on appeal, it is the principal contention of the appellant that the circuit judge, in granting delayed leave to appeal from the judgment of the circuit court commissioner, acted illegally and in abuse of the discretion given him by statute and by court rule. The pertinent part of C.L.1948, § 678.8 Stat.Ann. § 27.3488, reads as follows:

'Appeals may be authorized by the circuit court, * * * after the expiration of 5 days, when the party making the appeal has been prevented from taking the same by circumstances not under his control.'

The applicable portion of Court Rule No. 76, being section 6, subd. (d), reads as follows:

'Sec. 6. The circuit court shall have power to grant leave to appeal in the following cases:

* * *

* * *

'(d) In all other cases after the expiration of the time herein fixed for appeal and within such further time as may be permitted by law, upon showing, by affidavit or otherwise, that there is merit in appellant's claim of appeal and that the delay was not due to appellant's culpable negligence.'

An examination of the record shows the testimony of Dr. Vassal G. Tolbert, a practicing physician in the city of Detroit with 27 years experience in his profession. He first became acquainted with Mr. and Mrs. Peters as patients in 1947. At that time Mr. Peters was suffering from hypertension, advanced heart disease, and extremely high blood pressure. The doctor saw him again in 1951 and found no change in his condition. In this latter year the doctor said his memory was bad and that he was unable to coordinate ideas and motion. It was the doctor's opinion that he was mentally incompetent from 1947 until the time of his death in 1951. As to Mrs. Peters, the doctor testified that she had little education and that she did not appear to understand the nature of legal proceedings. He indicated that her lack of understanding was due, in part, to her age.

Since the doctor's testimony was not contradicted in any way, it must be assumed to be true that both Mr. and Mrs. Peters were mentally incompetent at the time the circuit court commissioner's proceedings were instituted. Such being the case, a guardian ad litem should have been appointed to protect their interests as required by C.L.1948, § 612.30, Stat.Ann. § 27.682.

'After the service of process or declaration, if the suit be commenced by declaration, against a defendant who is an infant, or who is insane or otherwise mentally incompetent, said suit shall be defended by the guardian of the estate of such defendant, if there be one; otherwise such suit shall not be further prosecuted until a guardian ad litem for such person shall be appointed in the manner following: If the defendant be an infant more than 14 years of age, he may nominate such guardian ad litem; in all other cases the nomination may be made by the next of kin of said defendant, or any other relative or friend, whom said judge or commissioner may deem a proper person to make such nomination, and if said judge or...