Loree v. Smith

• Decision Date: 18 May 1894
• Citation: Loree v. Smith, 100 Mich. 252, 58 N.W. 1015 (Mich. 1894)
• Court: Michigan Supreme Court
• Parties: LOREE v. SMITH, Drain Commissioner, et al.

58 N.W. 1015

100 Mich. 252

LOREE v. SMITH, Drain Commissioner, et al.

Supreme Court of Michigan

May 18, 1894

Error to circuit court, Lenawee county; Victor H. Lane, Judge.

Writ of error by Darius W. Loree to review proceedings of George W Smith, drain commissioner, and others. To a judgment quashing the writ, plaintiff brings error. Reversed.

Mains & Mains, for appellant.

Westerman & Westerman and Watts, Bean & Smith, for appellees.

MONTGOMERY J.

The plaintiff in error sued out a writ of certiorari to review proceedings taken, wherein an assessment was attempted to be made against plaintiff's property for benefits accruing to the property on account of cleaning out a drain. Notice of intention to sue out the writ was served on the 14th and 15th of November, 1892. The writ was allowed on December 10, 1892 and issued on December 19th of the same year. A motion was made by defendants in error to set aside this writ on the ground that notice of the intention to remove the proceedings to the circuit court for review by certiorari was not served within the time prescribed by statute. This motion was granted by the circuit court, and plaintiff in certiorari brings the record here for a review of that order.

The ruling of the circuit court was based upon section 1740e4, 3 How. St., which provides that: "The proceedings in establishing any drain shall be subject to review upon certiorari, as herein provided. Notice of such certiorari shall be served on the commissioner within ten days after the determination of such commissioner in establishing any drain, as provided in section one of chapter four, in the same manner as notice is required to be given of certiorari for reviewing judgments rendered by justices of the peace, and the writ shall be issued and served, and bond given and approved, and subject matter brought to issue, in the same time and manner, as near as may be, as in such cases provided. * * * If no certiorari shall be brought within the time herein prescribed, the drain shall be deemed to have been legally established, and its legality shall not thereafter be questioned in any suit at law or equity; provided further, that when such proceedings are brought the commissioner shall postpone the letting of contracts and all other proceedings until after the determination of the court." It will be noticed that the 10 days begin to run upon the determination of the commissioner in establishing the drain. Assuming that the time would begin to run at the date when an order was made for cleaning a drain, the question remains whether any such order was made as would set this time running. The order which is mentioned in this section is to be a determination of the commissioner as provided in section 1 of chapter 4 of the act....