Marion v. City of Detroit

• Decision Date: 06 June 1938
• Docket Number: Motion No. 352.
• Citation: 280 N.W. 26,284 Mich. 476
• Parties: MARION et al. v. CITY OF DETROIT et al.
• Court: Michigan Supreme Court

284 Mich. 476

280 N.W. 26

MARION et al.

v.CITY OF DETROIT et al.

Motion No. 352.

Supreme Court of Michigan.

June 6, 1938.

Mandamus proceeding by Charles A. Marion, administrator of the estate of Adolph N. Marion, deceased, and another, against the City of Detroit and others, to compel the payment of a condemnation award with interest thereon. From a judgment granting the writ, the defendants appeal in the nature of certiorari.

Writ vacated.Appeal from Circuit Court, Wayne County; Edward J. Jeffries, judge.

Argued before the Entire Bench.

Raymond J. Kelly, Corp. Counsel, and Walter Barlow, Chief Asst. Corp. Counsel, both of Detroit, for appellants.

Ira F. Morgan, of Detroit, for appellees.

McALLISTER, Justice.

In condemnation proceedings brought by the city of Detroit, plaintiffs received a jury award in the amount of $670,537.28. On January 19, 1937, an order of confirmation of said verdict was entered by the circuit court of Wayne county. On February 24, 1937, the treasurer of the city of Detroit notified plaintiffs by mail that the necessary funds had been provided by the city of Detroit and were set apart in the city treasury for the payment of the award as ascertained by the jury in the condemnation proceedings.

After the confirmation of the award by the circuit court on January 19, plaintiffs appealed to the Supreme Court. The judgment of the lower court was affirmed on June 29, 1937. Petition of City of Detroit to Condemn Lands, 280 Mich. 708, 274 N.W. 375.

On September 10, 1937, the city treasurer again advised defendants by letter that the money awarded to plaintiffs on condemnation was being held by the treasurer and stated that interest would be computed up to and including June 29, 1937, the date of affirmation of the judgment. On September 20, 1937, counsel for plaintiffs wrote the city attorney repeating a complaint which he had previously made about the entry of the city on plaintiffs' property and mentioned the letter he had received from the city treasurer notifying plaintiffs that the city was holding the money on the award. He concluded the letter by stating:

‘Therefore, on behalf of my clients I demand payment of the judgment with interest computed up to and including September 20, 1937, and any delay in making payment will incur an added accrual of interest per day of $91.86 which will have to be added to the check. The computation of principal and interest due as of September 20, 1937 totals $692,980.38.'

A similar letter was written by plaintiffs' counsel to the city treasurer.

On October 19, 1937, a stipulation was entered into between the parties to this case in which it was agreed that the award in the amount of $670,537.28 be paid by the city of Detroit to plaintiffs without any prejudice as to the claims of the parties relating to the interest claim.

On October 23, 1937, plaintiffs filed a petition for a writ of mandamus in the circuit court for the county of Wayne, alleging that they were entitled to interest on the award in the amount of $24,801.20 as computed from January 19, 1937, to October 15, 1937; and upon order to show cause being issued, defendants filed answer setting forth that the money to pay plaintiffs' award was set aside in the treasury on February 23, 1937, and that plaintiffs had been notified thereof. The city further denied that plaintiffs were entitled to recover the interest claimed and asked that the writ of mandamus be dismissed.

On November 9, 1937, the writ of mandamus prayed for by plaintiffs was granted by the circuit court for the county of Wayne and the city was commanded to pay forthwith to plaintiffs, the sum of $24,801.20, with lawful interest thereon from October 15, 1937, until the date of payment.

On December 15, 1937, an order was made by this court granting defendants leave to appeal in the nature of certiorari from the writ of mandamus, issued November 9, requiring the immediate payment of the amount of interest claimed by plaintiffs.

The question presented for review is whether plaintiffs are entitled to interest from January 19, 1937, the date of confirmation of the award by the circuit court, to October 15, 1937, the date on which payment of the award was made, on stipulation reserving adjudication of the interest claim.

The city of Detroit proceeded in the condemnation of the property in question under the provisions of Act No. 149, Pub.Acts 1911, (1 Comp.Laws 1929, §§ 3763-3783). Among the provisions of the act are the following:

‘Sec. 10. The jury shall determine in its verdict the necessity for the proposed improvement or for the accomplishment of the proposed purpose, and for taking such private property for the use or benefit of the public for the proposed improvement or for the accomplishment of the proposed purpose, and in case it find such necessity exists, it shall award to the owners of such property and others interested therein such compensation therefor as it shall deem just. * * *'

‘Sec. 13. Motions for a new trial or to arrest the proceedings shall be made within six (6) days after the rendition of the verdict, unless further time is allowed by the court, and if no such motion is made, or being made is overruled, the court shall enter an order or judgment confirming the verdict of the jury, and such judgment or confirmation, unless reversed by the supreme court, shall be final and conclusive as to all persons interested therein. * * *'

‘Sec. 15. The said appeal may be brought on for hearing at any term of the supreme court and said court may affirm, or for any substantial error reverse the judgment and may grant a new trial. The said court shall allow the prevailing party his reasonable costs and expenses, to be taxed, and give judgment as in other chancery appeals, and all costs, damages and expenses awarded to the petitioner, if it so elect, may be applied on or deducted from the compensation if any to be paid, or execution may issue on the judgment. * * *'

‘Sec. 16. When a verdict of the jury shall have been finally confirmed by the court, and the time within which to take an appeal has expired, or if an appeal is taken, on the filing in the court below of a certified copy of the order of the supreme court affirming the judgment of confirmation, it shall be the duty of the clerk of the court to transmit to the petitioner a certified copy of the verdict of the jury and of the judgment of confirmance, and of the judgment if any of affirmance, and thereupon, or within one year thereafter, said petitioner shall set apart and cause to be provided the amount required to make compensation to the owners of and persons interested in the private property taken as awarded by the jury, and shall be resolution direct payment to the persons respectively entitled to the money so set apart and awarded; and it shall be the duty of the treasurer of the petitioner to hold said money so set apart, to securely keep said money for the purpose of paying for the property taken and to pay the same to the persons entitled thereto according to the verdict of the jury on demand, and not pay out the money for any other purpose. * * * Whenever the amount of compensation is thus set aside and thus secured to be paid, the petitioner may enter upon and take possession of and use such private property for the purpose for which it was taken. In case of the resistance or refusal on the part of any one to the petitioner entering upon and taking possession of such private property, for the use and purpose for which it was taken, at any time after the amount of the compensation aforesaid is actually set aside and ready to be paid to those entitled thereto, the petitioner may apply to the court and shall be entitled on making a sufficient showing to a writ of assistance to put it in possession of the property.'

The provisions of the charter of the city of Detroit providing for the condemnation of private property for the use and benefit of the public in no manner conflict with the statute to which reference is above made. Title VIII, Chapter I, Section 16 of the charter of the city of Detroit, provides:

‘Within one year after confirmation of the verdict of the jury, or after the judgment of confirmation shall on appeal be confirmed, the council shall set apart and keep to be provided in the treasury, unless already provided, the amount required to make compensation to the owners and persons interested for the private property taken as awarded by jury, and shall in the resolution setting apart and providing said sum, if not already provided, direct the city treasurer to pay to the persons respectively entitled to the money so set aside and provided, to each his or her proportion, as ascertained and awarded by said verdict. And it shall be the duty of the treasurer to securely hold such money in the treasury for the purpose of paying for the property taken, and pay the same to the persons entitled thereto, according to the verdict of the jury, on demand, and not pay out the money for any other purpose...