Hoad v. Spier

• Decision Date: 30 June 1941
• Docket Number: Motion No. 332.
• Citation: 298 Mich. 462,299 N.W. 146
• Parties: HOAD et al. v. SPIER.
• Court: Michigan Supreme Court

298 Mich. 462

299 N.W. 146

HOAD et al.

v.SPIER.^*

Motion No. 332.

Supreme Court of Michigan.

June 30, 1941.

Mandamus proceeding by William C. Hoad and others, copartners, doing business under the firm name of Hoad, Decker, Shoecraft & Drury, against James E. Spier, Macomb Circuit Judge, to compel the defendant to reinstate a case in the circuit court.

Writ denied.Appeal from Circuit Court, Macomb County; James E. Spier, judge.

Argued before the Entire Bench.

Burke & Burke, of Ann Arbor, for plaintiffs.

Ivan A. Johnston, Pros. Atty., Macomb County, and Howard R. Carroll, Asst. Pros. Atty., Macomb County, both of Mt. Clemens, for defendant.

NORTH, Justice.

In May, 1937, a mandamus proceedings entitled Hoad et al. v. Wedge et al. was instituted in the circuit court of Macomb county. On April 17, 1939, the circuit judge, acting under the statute-Comp.Laws 1929, § 14253 (Stat.Ann. § 27.982), entered an order dismissing the Hoad suit for want of progress. The record discloses that plaintiffs' counsel were not aware of such dismissal until just shortly before December 4, 1940, on which date they filed a petition for reinstatement. The dircuit judge denied the relief sought. In the present proceedings plaintiffs in the Hoad case seek mandamus to compel entry of an order for its reinstatement in the circuit court. Plaintiffs contend that the circuit judge's refusal to enter such order ‘constituted an unwarranted abuse of discretion’; and that unless relief is granted in the present proceeding they will suffer ‘irreparable injury’.

Prior to 1930, the copartnership of Hoad, Decker, Shoecraft & Drury had performed extensive engineering services incident to the construction of a drain which affected Oakland, Macomb, Lapeer and St. Clair dounties. By action of the inter-county drainage board in June, 1930, the total claim, approximately $42,500, of the Hoad firm for its engineering services was apportioned among the four counties as follows: Oakland county $37,455.25; Macomb county $5,027.75; Lapper county $9.78; St. Clair county $7.22. Litigation followed which was prosecuted to finality in this Court in January, 1937. Decision therein was adverse to the Hoad firm, but the decision involved procedural matters only. The merits of plaintiffs' case were not adjudicated. See Hoad v. Van Wagoner, 278 Mich. 600, 270 N.W. 802. In May, 1937, mandamus proceedings were instituted by the copartnership in Oakland county and Macomb county respectively. In each of these cases the members of the inter-county drainage board were made defendants along with the treasurer of the respective counties. Plaintiffs in the Macomb county case, out of which the instant proceedings arise, claim their attorneys entered into an oral agreement with the then assistant prosecuting attorney of Macomb county, to the effect that the Oakland county suit would first be disposed of and in substance that the Macomb county suit in the meantime would remain in abeyance. But on hearing of plaintiffs' motion to reinstate,instate, the assistant prosecuting attorney with whom the oral agreement was had testified: ‘It wasn't my contemplation it would wait three, four years. I couldn't bind my successor. It was my contemplation that later on in the summer, later on in the fall it would probably come up.’ This oral agreement was had when the Macomb county case was first instituted against Wedge et al.; and subsequently a written stipulation was filed ‘extending the case until September, 1937, but there was no written stipulation following that’. The Oakland county suit was not tried, but after protracted negotiations was finally compromised and settled July 31, 1940. Thereupon plaintiffs in the instant case through their attorneys began negotiations for settlement of the Macomb county suit; and such negotiations continued until late in November, 1940. It was at this time plaintiffs' counsel first learned that their suit in Macomb county had been dismissed for lack of progress; and as above noted they thereupon filed their petition for reinstatement, but the petition was denied, and this mandamus proceeding has followed.

Unfortunately plaintiffs' claim became barred by the statute of limitations June 4, 1937. This, plaintiffs urge, renders of more importance that the order of the circuit judge be reversed. Plaintiffs also point out that the Macomb county case was not at issue. As to the defendants, with one exception (the St. Clair county drain commissioner), none had entered an appearance or filed an answer. The assignment clerk of the circuit court of Macomb county testified the case had never been on any of the regular term calendars because it had never been praceiped as ready for trial. Further, one of plaintiffs' attorneys on the hearing of the petition for reinstatement testified in substance that he had no knowledge or recollection of having received or having seen the Macomb county circuit court docket for the April 1939 term, evidently meaning the docket of the no progress cases; and that he was the attorney in active charge of plaintiffs' case; and further if he had been aware of the proposed dismissal he would have immediately taken ‘steps to have the case taken off the no progress docket’. While the clerk of the Macomb county circuit court testified in substance that he had no definite recollection of having mailed a copy of the no progress calendar to plaintiffs' attorneys, still he testified the ‘practice is to mail them to all’ attorneys appearing of record in the no progress cases, and ‘it is our definite practice to see that a copy is mailed to all counsel of record. * * * The address of Burke & Burke appears in the Circuit Court Calendar, Calendar R, on page 20, Burke & Burke, Ann Arbor Trust Building, Ann Arbor.’

In behalf of defendant in the instant proceeding it is stressed that as to holding the Macomb county mandamus proceeding in abeyance until disposition of the Oakland county case, there was no written stipulation as provided by Michigan court rule No. 11; nor was there an agreement in open court; nor did plaintiffs take any steps to avoid dismissal of their case when it was placed upon the no...