Horowitz v. Rott

• Decision Date: 07 June 1926
• Docket Number: No. 1.,1.
• Citation: 235 Mich. 369,209 N.W. 131
• Parties: HOROWITZ v. ROTT et al.
• Court: Michigan Supreme Court

235 Mich. 369

209 N.W. 131

HOROWITZ

v.ROTT et al.

No. 1.

Supreme Court of Michigan.

June 7, 1926.

Error to Circuit Court, Wayne County; Ernest P. La Joie, Judge.

Summary proceeding by Dellis Horowitz against David Rott and another. Judgment for plaintiff, and defendants bring error. Writ of error dismissed.

Argued before the Entire Bench. Harold M. Shapero, of Detroit (Samuel Shapero and Paul J. Wieselberg, both of Detroit, of counsel), for appellants.

Rhodes, Garvett & Frankel, of Detroit (Samuel Shimans, of Detroit, of counsel), for appellee.

FELLOWS, J.

This is a summary proceeding brought before a circuit court commissioner to recover possession of premises in Detroit which had been sold under an executory land contract. Plaintiff there recovered and the amount due was found. On trial in the circuit court plaintiff again recovered and the amount due was again found. Defendant paid to the clerk the amount found due and later prosecuted this writ of error. We are therefore confronted with the question whether this court may review a judgment which has been satisfied and no longer exists. The amount found due is not a judgment for that amount, but its payment satisfies the judgment for restitution and no writ or restitution may issue thereon. Act 243, Public Acts 1917. The judgment in the circuit court having been satisfied, there is nothing before us for review; nothing upon which a writ of error can operate. In Ideal Furnace Co. v. Molders' Union, 204 Mich. 311, 169 N. W. 946, one Murray had been fined $10 for contempt, and paid the fine. He then sought review in this court. We there said:

‘We are convinced that upon this record the questions are purely academic; that no real and substantial controversy is before us; that the order of the court below having been satisfied and the fine paid, no relief can be now granted appellant. The defendant, by his own act, has discharged the order entered by the court below. There is nothing before us for determination.’

See, also, Tong v. Wayne Circuit Judge, 231 Mich. 356, 204 N. W. 108;Drolshagen v. Drolshagen, 230 Mich. 444, 202 N. W. 959;People v. Ortwski, 220 Mich. 462, 190 N. W. 239;People v. Leavitt, 41 Mich. 470, 2 N. W. 812;Clairview Park Improvement Co. v. Railway, 164 Mich. 74, 129 N. W. 353,33 L. R. A. (N. S.) 250. The fact that the payment was made under protest is of no moment. If it were otherwise, the rule would be of no value, because by simply paying under protest every case which has become moot could be here heard, and jurisdiction to hear them could be forced upon the court at the will of a party.

It is true that the time fixed in the act of 1917 within which payment may be made is not prolonged by an appeal to this court. Smith v. Nelson, 165 Mich. 438, 130 N. W. 1119;Security Investment Co. v. Meister, 214 Mich. 337, 183 N. W. 183. But the Legislature fixed the period of indulgence for defaulting vendees and it cannot be extended by this court. The proceedings are summary, at least were originally so designed, and, although in some instances the statute may not be as favorable as those litigiously inclined might desire, we must take the statute as we find it. The fact that it does not continue the right to redeem until the final decision in this court is no grounds for seting aside well-recognized rules of law and affords no reason for this court assuming jurisdiction which it would otherwise not obtain. When the judgment was rendered, two courses were open to defendant. He could satisfy the judgment or...