Kosiba v. Sumeracki

• Decision Date: 16 February 1948
• Citation: Kosiba v. Sumeracki, 320 Mich. 322, 31 N.W.2d 68 (Mich. 1948)
• Parties: KOSIBA v. SUMERACKI et al.
• Court: Michigan Supreme Court

320 Mich. 322

31 N.W.2d 68

KOSIBA

v.SUMERACKI et al.^*

Supreme Court of Michigan.

Motion 386.

Feb. 16, 1948.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Wayne County; Guy A. Miller, Judge.

Petition by Grace Kosiba against Jacob P. Sumeracki, James D. Friel and George Cornell for a writ of mandamus. From an order denying the relief sought, plaintiff appeals.

Order affirmed.

Before the Entire Bench.

William L. Colden and Charles W. Jones, both of Detroit (George Stone, of Detroit, of counsel), for plaintiff-appellant.

James N. McNally, Pros. Atty., J. Lynn Fewlass, and Julius C. Pliskow, Asst. Pros. Atty., all of Detroit, for defendant-appellees.

CARR, Justice.

During the month of October, 1940, an investigation concerning alleged violations of the statutes of the State pertaining to gambling was being conducted by one of the judges of the Wayne circuit court. In connection with such proceeding a warrant was issued to search the residence of plaintiff and her husband, Peter Kosiba, in the city of Dearborn. The premises in question were searched, and certain gambling paraphernalia seized. In a safe in the basement of the house the officers found the sum of $3,749.79 in cash, consisting almost entirely of silver coins, which was also taken. Subsequently, and apparently without any proceeding for the confiscation or condemnation of the money, it was turned over to the board of county auditors.

Following the search of his residence, Peter Kosiba was arrested, and he and plaintiff were later indicted on a charge of criminal conspiracy. The case was dismissed as to plaintiff but Kosiba was tried and convicted, with others, the conviction being affirmed by this court in People v. Watson et al., 307 Mich. 596, 12 N.W.2d 476. One of the alleged conspirators, Roxborough, was separately tried and convicted. In affirming the case this court, in People v. Roxborough, 307 Mich. 575, 12 N.W.2d 466, said with reference to Kosiba: ‘The record shows that one of the defendants, Peter Kosiba, an operator of a mutual house known as ‘Western Union,’ had a commercial banking account with an average monthly balance of approximately $38,000, and that the deposits in this account from March 21, 1938, to March 1, 1940, totalled $735,406.44.'

At the time the money was taken from the home of Peter Kosiba and the plaintiff, the latter told the officers that it belonged to her, although it does not appear that she at the time interposed any objection to its being taken. Later she demanded that it be returned to her, which demand was refused. On May 24, 1945, she filed her petition in the Wayne circuit court asking that a writ of mandamus issue to compel the defendants, who then comprised the Wayne county board of auditors, to pay to her the sum of money in question.

On the trial in circuit court plaintiff did not testify in her own behalf. She undertook to support her claim of ownership of the money seized by the officers and turned over to the county, by the testimony of her husband, Peter Kosiba. The latter admitted that he had engaged for some time in gambling operations and testified further that plaintiff knew of such activities on his part. He further claimed that plaintiff was interested in an automobile business carried on by a corporation of which he was the president, and stated that whatever money plaintiff made from said business was deposited in certain bank accounts. With reference to the money involved in the present suit, Kosiba testified that he had given it all to plaintiff from time to time in ‘small change’ that he happened to have in his pocket. In answer to the court's question with reference to the source from which the money was received by him he declined to state that all of it came from the so-called policy racket, claiming that he made some money from time to time in card or crap games with friends, which money he also gave to plaintiff. He made no claim that any of the money that he gave to plaintiff came from any source, or sources, other than as indicated.

From the testimony before him the trial judge concluded that the money came into the hands of Peter Kosiba as the proceeds of illegal and criminal gambling, and that because of the circumstances under which plaintiff acquired it she was not entitled to a writ of mandamus to compel its payment to her. An order was accordingly entered denying the relief sought, and plaintiff has appealed.

The record fully supports the findings of the trial court as to the source from which the money came. Kosiba received it in the course of his gambling operations and gave it to plaintiff who knew of her husband's unlawful activities. The question before us is, in brief, whether plaintiff is entitled to the relief sought by her in this proceeding. It has been repeatedly declared by this court in prior cases that mandamus is a discretionary remedy and that the writ is one of grace and not of right. Toan v. McGinn, 271 Mich. 28, 260 N.W. 108;Quandt v. Schwass, 286 Mich. 433, 282 N.W. 206;Powers v. Secretary of State, 309 Mich. 530, 16 N.W.2d 62;Winter v. Royal Oak City Manager, 317 Mich. 259, 26 N.W.2d 893. The general principles controlling its issuance were summarized in McLeod v. State Board of Canvassers, 304 Mich. 120, 125, 7 N.W.2d 240, 242, as follows:

‘Writ of mandamus will issue to compel public officers and tribunals to perform their duties when right is clear and specific. National Bank [of Detroit] v. State Land Office Board, 300 Mich. 240, 1 N.W.2d 525.

‘Writ of mandamus lies only to enforce performance of clear legal right or ministerial duty. Home Insulation Co. v. State Board of Tax Administration, 298 Mich. 657, 299 N.W. 755.

‘The primary purpose of the writ of mandamus is to enforce duties created by law. Waterman-Waterbury Co. v. School District [No. 4], 183 Mich. 168, 150 N.W. 104.

‘Mandamus will not lie to compel a public officer to perform a duty dependent upon disputed and doubtful facts but is designed to enforce a plain, positive duty upon the relation of one who has a clear legal right to have it performed, and when there is no other adequate legal remedy. Toan v. McGinn, 271 Mich. 28, 260 N.W. 108.

‘The writ of mandamus is a discretionary writ and should not issue unless there is a clear legal duty on the part of the defendant, and a clear legal right in plaintiff to the discharge of that duty. Taylor v. Isabella Circuit Judge, 209 Mich. 97, 176 N.W. 550;Smith v. Wagner, 234 Mich. 428, 208 N.W. 460;Miller v. City of Detroit, 250 Mich. 633, 230 N.W. 936; Toan v. McGinn, supra.

‘Mandamus issues only...