Otsego Sanitary Milk Prods. Co. v. Allegan Circuit Judge

• Decision Date: 20 March 1926
• Docket Number: Motion No. 310.
• Citation: Otsego Sanitary Milk Prods. Co. v. Allegan Circuit Judge, 234 Mich. 277, 207 N.W. 890 (Mich. 1926)
• Parties: OTSEGO SANITARY MILK PRODUCTS CO. et al. v. ALLEGAN CIRCUIT JUDGE.
• Court: Michigan Supreme Court

234 Mich. 277

207 N.W. 890

OTSEGO SANITARY MILK PRODUCTS CO. et al.

v.ALLEGAN CIRCUIT JUDGE.

Motion No. 310.

Supreme Court of Michigan.

March 20, 1926.

Mandamus by the Otsego Sanitary Milk Products Company and another to compel Orien S. Cross, Allegan Circuit Judge, to vacate an order transferring an action by Marvin C. Haight against the petitioners to the equity side of the court. Writ granted.

Argued before SHARPE, SNOW, STEERE, FELLOWS, WIEST, CLARK, and McDONALD, JJ. William J. Barnard, of Paw Paw, for relators.

Clare E. Hoffman, of Allegan (Ed. J. Anderson, of Plainwell, of counsel), for respondent.

FELLOWS, J.

Plaintiff Otsego Sanitary Milk Products Company is a corporation and successor to a voluntary association of farmers. Plaintiff Barnard is its president, and was president of its predecessor. Marvin C. Haight was formerly secretary of plaintiff company and its predecessor. He brought an action in assumpsit in the Allegan circuit court against the company to recover for services performed and money expended by him and for services performed by his wife which latter claim was assigned to him. The company in its defense and by way of counterclaim set up that Haight has misappropriated funds of the company. On petition of Haight preliminary to trial the case was transferred to the equity side of the court, and Barnard was made a defendant. This proceeding seeks to compel the vacation of such order.

1. The only relief sought by either party in the original case is a money judgment or decree. It is said by one of the parties that the number of items involved approximates 3,000, and by the other that the number does not exceed 50. The case may be one for a referee, under section 12639 et seq., C. L. 1915, but the fact that the items are numerous does not deprive a court of law of jurisdiction. Indeed the most that is claimed by the present defendant is that the jurisdiction of the law and equity courts is concurrent. The provision of the Judicature Act relied upon is section 12351, C. L. 1915, which reads as follows:

‘If at any time it appear that a suit commenced in equity should have been brought as an action on the law side of the court, or if it appear that an action commenced on the law side of the court should have been brought in equity, it shall be forthwith transferred to the proper side, and be there proceeded with, with only such alteration in the pleadings as shall be essential.’

This statute has been before this court on numerous occasions. Among the cases see Flint v. Le Heup, 165 N. W. 626, 199 Mich. 41;Toles v. Duplex Power Car Co., 168 N. W. 495, 202 Mich. 224;Courtney v. Youngs, 168 N. W. 441, 202 Mich. 384;City of Iron Mountain v. Iron Mountain Waterworks, 173 N. W. 612, 206 Mich. 537;Lake Superior Brass Foundry Co. v. Houghton Circuit Judge, 176 N. W. 409, 209 Mich. 380;French v. Mulholland, 187 N. W. 254, 218 Mich. 248, 21 A. L. R. 1;Banks v. Wayne Circuit Judge, 190 N. W. 647, 221 Mich. 147;Koontz v. Bay Circuit Judge, 194 N. W. 1018, 224 Mich. 463. We need examine but one of these cases to determine that the order of transfer was erroneous. In Lake Superior Brass Foundry Co. v. Houghton Circuit Judge, supra, an action in assumpsit was brought on a promissory note. The defense insisted that the note sued upon was but one item of partnership accounts, and that an accounting should be had on the chancery side, and on motion for defendant made upon the trial an order of transfer was made. Reviewing this order on mandamus, Mr. Justice Sharpe, who wrote for the court, pointed out that the statute corresponded with the federal equity rule, considered the federal holdings, and said:

‘This section, however, provides for the transfer from the law to the equity side of the court at any time it appears that the action on the law side should have been brought in equity. Applying the reasoning of the federal courts, the order should only be made when, on the face of the plaintiff's declaration or a consideration of all the proofs, it should appear to the trial court that the plaintiff cannot recover * * * and a verdict must be directed against him. * * *

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