Lapham v. Hawley
| Decision Date | 04 June 1928 |
| Docket Number | Motion No. 174,April Term. |
| Parties | LAPHAM v. HAWLEY, Acting Circuit Judge. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Petition by James Lapham for writ of mandamus to compel Royal A. Hawley, Acting Wayne Circuit Judge, to set aside an order. Writ denied.
Argued before the Entire Bench.
Arthur Jones, of Detroit, for plaintiff.
Carl R. Hospers, of Detroit (Ignatius J. Salliotte, of Detroit, of counsel), for defendant.
This is a petition for writ of mandamus to compel the defendant to set aside an order made by him in the Wayne county circuit court, dismissing plaintiff's declaration and denying him leave to amend.
Plaintiff brought an action of ejectment. The defendant therein made a motion to dismiss the declaration because it did not have attached thereto a statement of title, as required by section 13184, 3 Comp. Laws 1915. After argument, the court granted the motion. Plaintiff moved orally to amend the declaration, but made no profect of amendment. His counsel then stated that his claim of title was through Charles L. Lapham and Julia Lapham, parents of plaintiff. Counsel for the defendant suggested to the court and opposing counsel that the title claimed by plaintiff had been litigated in a former chancery suit brought by plaintiff against his mother in the Wayne county circuit court, and also in the case of George Lapham v. Thomas Lapham et al., reported in 239 Mich. 237, 214 N. W. 189. After reading the decision, plaintiff's counsel announced that he knew of no new facts connected with the case which were not disclosed by the decision. The court refused to permit plaintiff to amend his declaration because he made no profert of an amendment and because the suit was merely an attempted ‘retrial of matters which had already been conclusively and fully decided by the Supreme Court.’ Plaintiff has not yet presented the amendments he desires to make to his declaration.
On October 1, 1927, the court entered an order dismissing the declaration, and ‘it is further ordered that the plaintiff's verbal motion to amend said declaration be denied, and the said cause be dismissed with costs of $10 to the defendant.’ No further proceedings appear to have been taken until January 17, 1928, when petition for mandamus was filed in this court.
The order of the court was a final judgment which disposed of the action, and for the review of which a writ of error would lie and would be the proper remedy. Section 13736, 3 Comp. Laws 1915; Jewell v. Lamoreaux, 30 Mich. 155;Emerson, Talcott & Co. v. McCormick Harvesting Machine Co., 51 Mich. 5, 16 N. W. 182;Recor v. St. Clair Circuit Judge, 139 Mich. 156, 102 N. W. 643;Brotherton Co. v. Jackson, 231 Mich. 604, 204 N. W. 704.
[2] It is settled that a writ of mandamus will not be granted where a writ of error will afford adequate relief....
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...Judge, 171 Mich. 305, 137 N.W. 71; Trumbull Motor Car Co. v. Wayne Circuit Judge, 189 Mich. 554, 155 N.W. 532; Lapham v. Wayne Circuit Judge, 243 Mich. 154, 219 N.W. 650. Our granting of leave having occasioned the expense of this appeal and anticipating the possibility of application for l......
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Detroit Bar Ass'n v. Am. Life Ins. Co., Motion No. 307.
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