Kirn v. Ioor

• Decision Date: 06 March 1934
• Docket Number: Motion No. 162.
• Parties: KIRN v. IOOR et al.
• Court: Michigan Supreme Court

266 Mich. 335

253 N.W. 318

KIRN

v.IOOR et al.

Motion No. 162.

Supreme Court of Michigan.

March 6, 1934.

Appeal from Circuit Court, Kent County, in Chancery; William B. Brown, Judge.

Suit by Rachel Miles Kirn against Walter Ioor, Bessie A. Yeider, and others. Decree for plaintiff, and defendant last named applies for leave to appeal in the nature of a mandamus.

Writ denied.

Argued before the Entire Bench.

Renihan & Lilly, of Grand Rapids, for appellant.

Norris, McPherson, Harrington & Waer and Annis & Heaney, all of Grand Rapids, for appellee.

STEERE, Retired Justice, sitting at request of the Chief Justice.

In the above-entitled suit defendant and appellant, Bessie A. Yeider, applies for leave to appeal ‘in the nature of a mandamus' (pursuant to Court Rule No. 60), asking a mandate directing the judge of the Kent county circuit court, in chancery, to set aside his decree in favor of plaintiff and grant a rehearing. This rule requiring leave to appeal, as applied here, is in all legal import consonant with former practice on application for relief by the original prerogative writ of mandamus. Quail v. Cole, 260 Mich. 642, 245 N. W. 542.

Two questions in controversy are tendered. The first, as stated in defendant's brief, is as follows: ‘1. Does the endorsement ‘approved as to substance and form’ by the counsel for the losing party to a decree drawn strictly in accordance with the announced decision of the trial court make such a decree a consent decree?'

When the case was finally submitted, after argument, the presiding judge announced briefly his findings and decision from the bench, requesting plaintiff's attorney to draw decree and order as orally declared. That the instrument plaintiff's attorneys drew was strictly in accordance with the announced decision of the court is not questioned. It bears the indorsement: ‘Approved as to substance and form, Renihan and Lilly, Attorneys for defendant, Bessie A. Yeider.’ Apparently use of the word ‘substance’ is stressed as converting the instrument, so indorsed, into a consent decree.

Under attending circumstances shown, it cannot be so construed, but only as recognition that the proposed decree was legally formulated, and contained in substance the decision as orally announced by the court. There is no evidence of any preliminary discussion or negotiations between attorneys looking to compromise or surrender of any rights by either party. Both sides were represented by competent attorneys, veteranized in the science of jurisprudence, its practical application, and the amenities between opposing attorneys in litigation. It was incumbent upon prevailing attorneys to prepare the decree in legal phraseology and in substance as the court announced it. If not approved in writing by the losing attorneys, it became the duty of the prevailing attorneys to prepare and serve upon them a copy of the proposed decree, with notice of time and place it would be presented to the deciding judge for settlement. Court Rule No. 8, and Herman v. Wayne Circuit Judge, 236 Mich. 604, 211 N. W. 52. The only consent or favor asked or granted was in effect waiver of notice for settlement of the decree-a common courtesy in practice, where delay and labor in complying with the rule could serve no useful purpose to either party. The possibility of any claim that this is a consent decree was then apparently remote from the minds of defendant's attorneys, for their next move was application to the trial court to set aside that decree and grant a rehearing, denial of which was followed by this application for mandamus to compel that court to do so, which is the second question presented, somewhat argumentatively, in appellant's brief as follows: ‘2. Did the trial court abuse its discretion in denying a motion for rehearing in a case where the property owned and occupied for sixteen years as a homestead by a woman, is sought to be sold to apply upon her father's obligation, where the merits of the case were not presented to the trial court, through the illness of defendant and her reliance upon her father's taking care of the case?'

It is long-settled text-book law, sustained by abundant decisions in this court and elsewhere, that in cases within jurisdiction of the trial court, its ruling on application for an order setting aside a judgment or decree is strictly discretionary and will not be disturbed by an appellate court, unless a clear instance of abuse of discretion is shown.

Defendant Walter Ioor is father of appellant Bessie A. Yeider. This proceeding is an offshoot of an action at law between him and plaintiff...