Lindsay v. Wayne Circuit Judges

• Citation: 30 N.W. 590,63 Mich. 735
• Court: Michigan Supreme Court
• Decision Date: 17 November 1886
• Parties: LINDSAY, Relator, v. JUDGES OF WAYNE CIRCUIT COURT.

30 N.W. 590

63 Mich. 735

LINDSAY, Relator, v. JUDGES OF WAYNE CIRCUIT COURT.

Supreme Court of Michigan

November 17, 1886

Mandamus to compel trial justices to take off a nonsuit.

The relator, James Lindsay, sued one Eastwood in justice's court for $50, and, judgment being rendered for Eastwood took the case to the circuit court of Wayne county. On the trial of the appeal in the circuit, JENNISON, J., directed a verdict for the defendant, but, the parties, being unable to settle the exceptions, ordered a new trial. At the next term at which the case was noticed for trial, CHAMBERS, J announced that SPEED, J., being absent, the "call" would not be had until his return. The case of Lindsay v Eastwood was No. 196. On the return of SPEED, J., he took up the jury cases at No. 175. The second day's assignment was "Nos. 176, 177, 180, 195, 196," etc.; the numbers between 180 and 195 being skipped. Lindsay was not present, except by attorney, when 196 was called, and he was nonsuited. The judge refused to take off the nonsuit, but suggested that a motion to that effect be made. This was done, but the motion was not placed upon the motion-book. Eastwood objected to the hearing on that ground, and the objection was sustained, with leave to renew the motion. At the second hearing, JENNISON, J., then sitting, overruled the motion on the ground that the case was expensive to the county. Thereupon Lindsay sued out the writ.

Stewart & Galloway, for relator.

Under rule 48, cases must be called in their order.

B.T. Prentis, for respondents.

A motion to set aside a nonsuit is addressed to the discretion of the court below. Hoffman v. St. Clair Circuit Judge, 37 Mich. 131. See, also, Van Renselaer v. Whiting, 12 Mich. 449; Hake v. Buell, 50 Mich. 89; S.C. 14 N.W. 710; People v. Francis, 52 Mich. 575; S.C. 18 N.W. 364; Toulman v. Swain, 47 Mich. 82; S.C. 10 N.W. 117; Final v. Backus, 18 Mich. 218; Chaffee v. Soldan, 5 Mich. 242.

The abuse of discretion on the part of the trial justice must be clear, to authorize the appellate court to interfere, ( People v. Saunders, 25 Mich. 119; Hoffman v. Harrington, 44 Mich. 183; S.C. 6 N.W. 225; Sommerville v. Richards, 37 Mich. 299;) or it must be an extreme case, (Barden v. Briscoe, 36 Mich. 254;) and the abuse of discretion must be such as to injure the party complaining of it, (McLennan v. McDermid, 52 Mich. 468; S.C. 18 N.W. 222; Harbaugh v. Wayne Circuit Judge, 32 Mich. 259.) See, also, Scripps v. Reilly, 35 Mich. 371; Detroit, H. & I.R. Co. v. Forbes, 30 Mich. 165; Borden v. Clark, 26 Mich. 410.

A matter of discretion is not reviewable on mandamus. Evans v. Saginaw Circuit Judge, 39 Mich. 123; Wells v. St. Joseph Circuit Judge, Id. 21; Taylor v. Osceola Circuit Judge, 30 Mich. 99.

The order refusing to set aside a nonsuit does not finally dispose of any rights, and cannot be reviewed. Stork v. Judge Superior Court, 41 Mich. 5.

PER CURIAM.

In this case, when the cause had been reinstated, and stood for trial, it was subject to the same rules as any other; and the failure to have the party in court when called, appearing to have arisen entirely out of a misapprehension as to where he was to be, it would have been a hardship not to open the nonsuit when the court had seen fit to enter it. The judge having allowed the motion to be made, and there being no real question about it, the subsequent refusal of it on technical grounds, as to the formality of entering it, and...