Kelley v. City of Flint, 3.

Decision Date03 October 1930
Docket NumberNo. 3.,3.
Citation232 N.W. 407,251 Mich. 691
PartiesKELLEY v. CITY OF FLINT.
CourtMichigan Supreme Court

OPINION TEXT STARTS HERE

Error to Circuit Court, Genesee County; James S. Parker, Judge.

Action by Michael L. Kelley against the City of Flint. To review a judgment in favor of defendant, plaintiff brings error.

Affirmed.

Argued before WIEST, C. J., and BUTZEL, CLARK, McDONALD, POTTER, SHARPE, NORTH, and FEAD, JJ.Milton E. Mills, of Flint, for appellant.

Frank G. Millard, City Atty., and Russell C. Roberts, Asst. City Atty., both of Flint, for appellee.

SHARPE, J.

On February 21, 1928, the plaintiff secured an assignment reading as follows:

‘For one dollar ($1.00) and other valuable consideration, I hereby sell, assign and transfer unto Michael L. Kelley, of the City of Flint, his executors, administrators, and assigns to his and their own proper use and benefit, a certain debt now due and owing to me by the City of Flint, Genesee county, Michigan, amounting to the sum placed opposite my signature, and I do hereby give the said assignee, his executors, administrators, and assigns full power to collect and receive the same and to prosecute any suits or proceedings at law, or in equity therefor, and I will do nothing to lessen or discharge said debt.

+--------------------------------------------+
                ¦               ¦Amt.     ¦Amt.     ¦Bal.    ¦
                +---------------+---------+---------+--------¦
                ¦               ¦Earned   ¦Rec'd    ¦Due     ¦
                +---------------+---------+---------+--------¦
                ¦August Scharf..¦$2,040.00¦$1,800.00¦$240.00”¦
                +--------------------------------------------+
                

Thirty other signatures were attached thereto in a similar manner, the total of the balances claimed to be due amounting to $5,404.79. To this plaintiff added interest for five years at 5 per cent., amounting to $1,351.20. On March 31, 1928, he attached thereto an affidavit reading as follows:

Michael L. Kelley, being first duly sworn, deposes and says that he has, by written assignment, claims against the City of Flint, Michigan, for balances due on the salaries as officers of said city, for the year from May 1, 1922, to May 1, 1923, and that he verily believes that the services therein charged have been actually performed, that the sums charged therefor are reasonable and just, and that to the best of his knowledge and belief no set-off exists, nor payment has been made on account thereof, except such as appears in the records and files of said city. That the total amount due and payable is $6755.99, as appears in the items opposite the names of each of said officers in the hereto attached written assignments.'

His attorney then filed the same with the city clerk. No action having been taken thereon by the council, he brought this action against the city to recover the amount claimed to be due him under such assignment. When the assignment and affidavit were offered in evidence, defendant's attorney objected to their receipt for a lack of compliance with a provision of the city charter which reads as follows:

‘All actions against the City of Flint shall be commenced by summons, which shall be served on the city clerk by giving him a copy of such summons with the name of the officer serving the same indorsed thereon, or, in case of the absence of the city clerk, then by leaving such copy with the mayor, indorsed as aforesaid: Provided, that no suit shall be maintained against the city until the claim...

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19 cases
  • Russell v. City of Detroit
    • United States
    • Court of Appeal of Michigan — District of US
    • October 10, 2017
    ...and to deter "trumped-up" claims. See Merrifield v. Vill. of Paw Paw , 274 Mich. 550, 554, 265 N.W. 461 (1936) ; Kelley v. Flint , 251 Mich. 691, 695, 232 N.W. 407 (1930). Further, by requiring verification by the claimant—i.e., the individual with personal knowledge of the facts stated in ......
  • Coleman v. Rich
    • United States
    • U.S. District Court — Western District of Michigan
    • December 30, 2015
    ...on which perjury could not be assigned if it was wilfully false, would not, in law, be an affidavit at all." Kelley v. City of Flint, 251 Mich. 691, 696; 232 N.W. 407 (1930), quoting Clarke v. Wayne Circuit Judge, 193 Mich. 33; 159 NW 387 (1916) (syllabus). In addition, neither of plaintiff......
  • Penix v. City of St. Johns
    • United States
    • Michigan Supreme Court
    • October 13, 1958
    ...Ridgeway v. City of Escanaba, 154 Mich. 68, 117 N.W. 550; Moulthrop v. City of Detroit, 218 Mich. 464, 188 N.W. 433; Kelley v. City of Flint, 251 Mich. 691, 232 N.W. 407; Northrup v. City of Jackson, 273 Mich. 20, 262 N.W. 641; Harrington v. City of Battle Creek, 288 Mich. 152, 284 N.W. 680......
  • Smith v. Washington
    • United States
    • U.S. District Court — Western District of Michigan
    • December 4, 2018
    ...on which perjury could not be assigned if it was wilfully false, would not, in law, be an affidavit at all." Kelley v. City of Flint, 251 Mich. 691, 696; 232 N.W. 407 (1930). In addition, the "declaration" does not comply with the requirements of 28 U.S.C. § 1746(2), which provides that in ......
  • Request a trial to view additional results

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