Kirn v. Ioor, Motion No. 162.

CourtSupreme Court of Michigan
Writing for the CourtSTEERE
Citation253 N.W. 318,266 Mich. 335
Docket NumberMotion No. 162.
Decision Date06 March 1934
PartiesKIRN v. IOOR et al.

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

[253 N.W. 319]

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...

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15 practice notes
  • Freedman v. Brutzkus, No. B213489.
    • United States
    • California Court of Appeals
    • March 11, 2010
    ...of an agreement]; Ahrenberg Mech. Contractor v. Howlett (1996) 451 Mich. 74 [545 N.W.2d 4, 5-6], citing Kirn v. Ioor (1934) 266 Mich. 335 [253 N.W. 318] [finding approval as to form and content of a court order insufficient to establish a consent judgment]; First American Title Ins. Co. v. ......
  • Roberts v. Farmers Ins. Exchange, Docket No. 270406.
    • United States
    • Court of Appeal of Michigan (US)
    • March 27, 2007
    ...case, notwithstanding the fact that such a notation was appended to the order. We believe that the better rule is stated in Kirn v. Ioor, 266 Mich. 335, 336-338, 253 N.W. 318 (1934), in which this Court "When the case was finally submitted, after argument, the presiding judge announced brie......
  • Walters v. O'Keefe, No. 34
    • United States
    • Supreme Court of Michigan
    • January 5, 1966
    ...in setting aside the default. We approved in Crew v. Zabowsky, 357 Mich. 606 (610), 99 N.W.2d 542 the language in Kirn v. Ioor, 266 Mich. 335, 338, 253 N.W. 'It is long-settled text-book law, sustained by abundant decisions in this court and elsewhere, that in cases within jurisdiction of t......
  • Reichert v. Metro. Trust Co. (In re Stevens), No. 81.
    • United States
    • Supreme Court of Michigan
    • March 6, 1934
    ...extraordinary services, the trial judge took into consideration the fact that petitioner was doing other legal work for the receivership [253 N.W. 318]on a ‘modest retainer basis.’ He was also impressed by the fact that petitioner failed to notify the court in advance that he expected to ch......
  • Request a trial to view additional results
15 cases
  • Freedman v. Brutzkus, No. B213489.
    • United States
    • California Court of Appeals
    • March 11, 2010
    ...of an agreement]; Ahrenberg Mech. Contractor v. Howlett (1996) 451 Mich. 74 [545 N.W.2d 4, 5-6], citing Kirn v. Ioor (1934) 266 Mich. 335 [253 N.W. 318] [finding approval as to form and content of a court order insufficient to establish a consent judgment]; First American Title Ins. Co. v. ......
  • Roberts v. Farmers Ins. Exchange, Docket No. 270406.
    • United States
    • Court of Appeal of Michigan (US)
    • March 27, 2007
    ...case, notwithstanding the fact that such a notation was appended to the order. We believe that the better rule is stated in Kirn v. Ioor, 266 Mich. 335, 336-338, 253 N.W. 318 (1934), in which this Court "When the case was finally submitted, after argument, the presiding judge announced brie......
  • Walters v. O'Keefe, No. 34
    • United States
    • Supreme Court of Michigan
    • January 5, 1966
    ...in setting aside the default. We approved in Crew v. Zabowsky, 357 Mich. 606 (610), 99 N.W.2d 542 the language in Kirn v. Ioor, 266 Mich. 335, 338, 253 N.W. 'It is long-settled text-book law, sustained by abundant decisions in this court and elsewhere, that in cases within jurisdiction of t......
  • Reichert v. Metro. Trust Co. (In re Stevens), No. 81.
    • United States
    • Supreme Court of Michigan
    • March 6, 1934
    ...extraordinary services, the trial judge took into consideration the fact that petitioner was doing other legal work for the receivership [253 N.W. 318]on a ‘modest retainer basis.’ He was also impressed by the fact that petitioner failed to notify the court in advance that he expected to ch......
  • Request a trial to view additional results

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