Miller v. Siden

• Decision Date: 06 June 1932
• Docket Number: No. 12.,12.
• Parties: MILLER v. SIDEN et al.
• Court: Michigan Supreme Court

259 Mich. 19

242 N.W. 823

MILLER

v.SIDEN et al.

No. 12.

Supreme Court of Michigan.

June 6, 1932.

Appeal from Circuit Court, Wayne County; Robert M. Toms, Judge.

Action by Abe Miller, otherwise known as A. Miller, against Morris Siden and another. From a judgment for plaintiff, defendants appeal.

Reversed without new trial, and without prejudice to bringing of proper action.

Argued before the Entire Bench.

POTTER, J., dissenting.

Louis Rosenzweig, of Detroit, for appellants.

Kelly, Kelly & Kelly, of Detroit, for appellee.

FEAD, J.

Plaintiff, claiming right of possession of a certain boiler, as mortgagee in a chattel mortgage given for its purchase price, filed a petition under the Declaratory Judgment Law, C. L. 1929, § 13903 et seq., to recover possession from defendant, who claims to be the owner free of the mortgage.

The proper action is replevin. The proceeding for declaratory judgment is not a substitute nor alternative for the commonlaw actions. Village of Grosse Pointe Shores v. Ayres, 254 Mich. 58, 62, 235 N. W. 829.

Judgment for plaintiff reversed without new trial and without prejudice to bring the proper action. As the point was not raised, no costs will be ordered.

CLARK, C. J., and McDONALD, SHARPE, NORTH, WIEST, and BUTZEL, JJ. concurred with FEAD, J.

POTTER, J. (for affirmance).

Plaintiff filed a petition under Act No. 36, Public Acts 1929, sections 13903-13909, Comp. Laws 1929, setting forth that an actual controversy had arisen between the parties as to their rights under a conditional sales contract, dated December 24, 1929, to a 150 horse power vertical boiler, and praying a declaratory judgment giving and granting to plaintiff the right and authority to immediately repossess the boiler and fixtures appurtenant thereto and attached therewith, and, in the alternative, that defendants might have the right of paying to plaintiff a specified sum. Attached to the petition was a copy of the contract of sale and of the order of the referee in bankruptcy confirming, nunc pro tunc, the sale, by the trustee in bankruptcy of the Crown Cleaners & Dyers to Morris Siden for $1,375 of the property in question, ‘subject to all outstanding liens and encumbrances, whether by way of chattel mortgages, title-retaining contract, or otherwise.’ From a judgment for plaintiff, defendants appeal.

Act No. 36, Public Acts 1929, notwithstanding the reasoning of Anway v. Grand Rapids Railway Co., 211 Mich. 592, 179 N. W. 350, 12 A. L. R. 26, and Liberty Warehouse v. Grannis, 273 U. S. 70, 47 S. Ct. 282, 71 L. Ed. 541, has been sustained as constitutional by this court. Washington-Detroit Theatre Co. v. Moore, 249 Mich. 673, 229 N. W. 618, 68 A. L. R. 105.

An analysis of the Michigan statute under which petition is filed demonstrates it is not open to the objection in this case aimed at the statute under consideration in Anway v. Grand Rapids Railway Co., 211 Mich. 592, 179 N. W. 350, 12 A. L. R. 26. Under the present statute no action or proceeding in any court of record shall be open to objection on the ground a merely declaratory decree or order is sought. The court may, in cases of actual controversy, make binding declarations of rights, whether any consequential relief is or could be claimed or not, including the determination, at the instance of any one interested in the controversy, of the construction of any statute, municipal ordinance, or other governmental regulation or any deed, will, or other instrument in writing. Section 13903, Comp. Laws 1929. Declarations of rights and determination of questions of construction may be obtained by means of ordinary proceedings in law or in equity or by petition in law or equity. Section 13904, Comp. Laws 1929. If further relief is necessary or proper after declaration made, an order to show cause may be issued on motion. Section 13905, Comp. Laws 1929. When a declaration of rights or granting further relief involves disputed questions of fact, such facts may be settled by a jury. Section 13906, Comp. Laws 1929. Declarations of rights made under this act have the effect of final judgments. Section 13908, Comp. Laws 1929.

This statute applies to actual controversies. Disputed questions of fact may be determined by a jury. Issues may be presented by ordinary proceedings in law or equity or by petition in law or equity. Further elief based upon the determination of the court may be obtained on motion therefor. Declarations of rights have the effect of final judgments, so that we have a statute which contemplates actual parties, a proceeding where there is an actual controversy, and a determination of that controversy by a judicial tribunal which may grant further relief, and which, when adjudicated, has all the force and effect of a final judgment.

The statute authorizes proceedings by petition, a determination of disputed questions of fact and law and a final judgment; that the relief sought and obtained might have been obtained by an action of replevin is no objection to proceeding by petition under this statute which is declared to be remedial, is to be liberally construed and administered with a view of making courts more serviceable to the people. Section 13909, Comp. Laws 1929. As applied to this case, the statute permits the parties to resort to the practice by petition, rather than an action of replevin. Similar statutes have been upheld by the courts of last resort in other states. Morton v. Pac. Const. Co., 36 Ariz. 97, 283 P. 281.Blakeslee v. Wilson, 190 Cal. 479, 213 P. 495;James v. Hall, 88 Cal. App. 528, 264 P. 516;Braman v. Babcock, 98 Conn. 549, 120 A. 150;Sheldon v. Powell, 99 Fla. 782, 128 So. 258;Zoercher v. Agler (Ind. Sup.) 172 N. E. 186, 70 A. L. R. 1232;State ex rel. Hopkins v. Grove, 109 Kan. 619,210 P. 82,19 A. L. R. 1116;Black v. Elkhorn Coal Corp., 233 Ky. 588, 26 S.W.(2d) 481;McCrory Stores...