Lesisko v. Stafford

• Decision Date: 03 June 1940
• Docket Number: No. 63.,63.
• Citation: 293 Mich. 479,292 N.W. 376
• Parties: LESISKO et al. v. STAFFORD et al.
• Court: Michigan Supreme Court

293 Mich. 479

292 N.W. 376

LESISKO et al.

v.STAFFORD et al.

No. 63.

Supreme Court of Michigan.

June 3, 1940.

Suit by Frances Ignasiak Lesisko and others against Herbert A. Stafford and another, for injunction against improper use of driveway. From a decree for plaintiffs, defendants appeal.

Affirmed.

Appeal from Circuit Court, Wayne County, in Chancery; Frank Day smith, judge.

Argued before the Entire Bench.

Lau & Lau, of Detroit, for appellants.

Clarence A. Reid, of Detroit, for appellees.

BUTZEL, Justice.

Plaintiffs and defendants own houses on adjoining lots. There is a driveway between them, part of which is on each lot. Plaintiffs sought injunctive relief in a bill of complaint charging that defendants and their real estate business clients ‘use said driveway with their own car or cars, and continually park and block said drive, so that the plaintiffs are unable to use it, either with an automobile or to walk thereon.’ Defendants were served but failed to appear, and the bill was taken as confessed by an order of November 12, 1938. The case was heard before the late Judge Allan Campbell, and a decree was entered by Judge Frank Day Smith on July 31, 1939. After a lapse of more than three months, defendants retained their present counsel who moved to amend the decree. We are not told what disposition was made of this motion. On December 19, 1939, we granted leave to appeal on defendants' representations that the default was due to the neglect of the attorney originally retained, that the decree is not supported by the bill of complaint, and that the relief given was far more than asked for in the prayer of the bill.

As this was the sole reason for granting the delayed appeal, we shall determine whether the decree is supported by the bill of complaint and whether the relief granted was in accordance with the prayer. Covell v. Cole, 16 Mich. 223;McMahon v. Rooney, 93 Mich. 390, 53 N.W. 539;Miller v. Casey, 176 Mich. 221, 142 N.W. 589;Puffer v. Clark, 202 Mich. 169, 168 N.W. 471;Foster v. Talbot, 257 Mich. 489, 241 N.W. 141; Bonnici v. Kindsvater, 275 Mich. 304, 266 N.W. 360. The bill of complaint, stripped of formalities, stated that plaintiffs are the owners of a certain lot, that the driveway thereon has not been dedicated for such use, that defendants were not given any right to use it by conveyance or agreement, that defendants and their clients continually park and block the driveway, that by reason of these acts plaintiffs are denied the free and uninterrupted use of their property, and that they will suffer irreparable damage unless a court of equity intervenes. On default every well-pleaded averment is accorded the quality of truth. On this state of facts plaintiffs need not submit to the repeated trespasses and be limited to an action at law. Turner v. Holland, 54 Mich. 300, 20 N.W. 51;Campbell v. Adsit, 111 Mich. 575, 70 N.W....