McLaughlin v. Circuit Judge

• Decision Date: 13 May 1885
• Court: Michigan Supreme Court
• Parties: McLAUGHLIN v. CIRCUIT JUDGE.

23 N.W. 472

57 Mich. 35

McLAUGHLIN v. CIRCUIT JUDGE.

Supreme Court of Michigan

May 13, 1885

Mandamus.

Conely Maybury & Lucking, for motion.

Harlow P. Davock, against.

CHAMPLIN, J.

Relators ask for a mandamus to compel respondent to set aside the order made in a cause for partition confirming the report of commissioners appointed therein, and to set aside such report. Several grounds are alleged, but one of which will be noticed here. The petitioners allege, and the return shows, that, after the commissioners had qualified, they proceeded to the discharge of their duties without giving notice to complainants or their solicitors, but that they were attended by the solicitor for some of the defendants, who were tenants in common of the land to be divided; that he directed them in what manner to proceed, and prepared their report, which they signed and filed in the cause. We think this was improper. The commissioners are clothed with important duties, and it is essential that their minds should be free from bias, and that they should not be influenced, or subject to be influenced, by the parties interested by communications made in the absence of other parties. If the commissioners desire information respecting their duties, they should apply to the court for instruction. There can be no objection to their notifying all parties to appear before them, at a time and place to be stated, and affording them an opportunity to produce proof respecting the value of the land to be partitioned, should they desire to embrace it; but in the deliberations of the commissioners, and in the preparation of their report, all interested parties should be excluded. Paul v. Detroit, 32 Mich. 109; Peavey v. Wolfborough, 37 N.H. 286; Marquette, etc., R. Co. v. Probate Judge, 53 Mich. 118; S.C. 18 N.W. 788. We do not say that the commissioners were improperly influenced. That question is not open to inquiry. The rule relates to the proper administration of justice, and is inflexible, and its violation will be corrected when timely application is made.

The order confirming the report of the commissioners must be vacated, and the report vacated and set aside, and the case will then proceed according to the practice of the court. Let the writ of mandamus issue accordingly.

(The other justices concurred.)