People ex rel. Mabley v. Judge of Superior Court
| Decision Date | 04 June 1879 |
| Citation | 1 N.W. 985,41 Mich. 31 |
| Court | Michigan Supreme Court |
| Parties | THE PEOPLE ex rel. CHRISTOPHER R. MABLEY v. THE JUDGE OF THE SUPERIOR COURT OF DETROIT. |
April 27, 1878, one S. brought an action of trover in superior court of Detroit against the relators for the conversion of certain goods. May 15, 1878, defendants in that suit pleaded the general issue, with notice that the goods belonged to S & M., and were taken by one of defendants under a provisional warrant in bankruptcy against them; that an assignee therein had been appointed, and property turned over to him. The cause was noticed by S. for July Term. Neither party demanded a jury. July 12th, the day the case was on call for trial defendant knowing it to be so on call, informed the judge that he was preparing papers for removal to Federal court and they would be complete as soon as a proper bondsman was found. After waiting some time for party to complete his papers the case was called and trial begun, and on defendants' counsel appearing he was informed it was too late for removal. Judgment for plaintiffs was ordered. A motion for new trial having been made, an order was finally allowed, granting a new trial on conditions of payment of certain costs, disclosure of nature of defense, waiver of removal, and trial at the next term. At the next term the cause was assigned for October 8th. October 5th defendants with the assignee in bankruptcy, filed a bill in equity in United States circuit court, attacking the transfer to S. of the property in question, and obtained an ex parte restraining order as to the suit in the superior court, which was served the day before the trial, and notice filed in the superior court. October 12th the judge of the superior court, after giving defendants opportunity to be heard, vacated the conditional order granting a new trial, and restored the suspended judgment. In April, 1879, the supreme court was applied to for a mandamus to compel the vacation of the order vacating the order granting a new trial. Held, that such application should be denied.
The acts of Congress contemplate the issue of ex parte orders from a federal court to restrain the trial in a state court of a cause that is entitled to removal only when it appears that there is danger of irreparable injury from delay.
Don M. Dickinson and Alfred Russell, for the relators.
Henry C. Wisner and G.V.R. Lothrop, for the respondents.
A mandamus is asked to compel the superior court of Detroit to vacate an order setting aside a previous conditional order for a new trial. There are circumstances which make the application peculiar, and which render it proper to refer to the facts more at length than the legal questions alone would require. As a mere matter of law there can be only two points presented, which are--First, whether the action of the superior court went beyond its discretionary power and violated an absolute right; and, second, whether we would be justified in the exercise of our discretion in granting the relief prayed, assuming we have a right to do so.
The suit in the superior court was an action of trover, brought by Samuel Schwab as plaintiff against relators for the conversion of goods which he claimed as his own property, but which were forcibly taken away from him by relators, or by some of them, whose action was furthered by the rest. This action was brought April 27, 1878.
On the fifteenth day of May, 1878, all the defendants appeared and pleaded the general issue, with notice that the property in question belonged to the firm of Schott & Feibish, and were seized by Matthews, one of the defendants, under a provisional warrant in bankruptcy against their estate, to which an assignee had since been appointed who had received them from Matthews, who was United States marshal.
This assignee, it now appears, was one Joseph L. Hudson.
Plaintiff Schwab, in due time, noticed the cause for hearing at the July term. Neither party demanded a jury. At the beginning of the term the case was regularly assigned for hearing with the knowledge of all parties, defendants' counsel subsequently claiming he did not suppose it would be tried without a jury, as will be further referred to. No preparation was made by the defendants for defense, but they calculated on removing the cause to the United States court before it could be reached for trial, on the claim that Schwab was an alien. Whether he was or not does not appear, and is not now important.
On the twelfth of July, the day of trial, counsel for defendant, knowing that the case was on call, for the first time informed the judge that he was preparing papers for removal, which he expected to complete when he should find a proposed bondsman. The judge agreed to wait half an hour if the case should be reached, and when reached did so wait for a longer period, against the protest of plaintiff's counsel, who were ready for trial. Matthews, the marshal, one of the relators, had been called upon, and was present as a witness for plaintiff. At length the trial began, and on the subsequent appearance of defendants' counsel he was informed it was too late to remove the cause, which proceeded to judgment.
A motion for a new trial was then made, the grounds of which, so far as the affidavits show, were an idea in the mind of defendants' counsel that the case was one which, from its nature, the judge would try without a jury, and a design to remove the case, which had not been seasonably carried out by reason of other occupations of the leading counsel. The only ground which could be regarded as creating peculiar equities arose out of the claim that one of the counsel had been actually misled concerning the probability of a jury trial. Upon this the affidavits showed that the defendants had purposed removing the cause, and had been delayed partly by making inquiry to find out Schwab's citizenship, and partly because one of the counsel had been doing business in other courts. The papers were not put into his hands by Matthews until July 11th, the day before the trial. The affidavits presented to Judge Cochrane averred that one of defendants' counsel had been informed by the clerk on July 10th that the judge would not try the case without a jury. There was no averment that they had ever purposed preparing for trial.
As the constitution declares that a trial by jury is to be deemed waived in all civil cases, unless seasonably demanded defendants knew they had no such right. The judge is empowered for his own satisfaction to order a jury, but this is not a matter which concerns the parties themselves, who have not asked one. In this case, no demand being made by either party, the assignment of the case for a particular day in term, which necessarily put plaintiff to the trouble and expense of procuring witnesses and making preparations, was a very plain declaration that no jury would be called. Although somewhat calculated, on a hasty reading, in one instance to raise the impression that the judge himself had indicated to the contrary, a careful perusal of the affidavits used on the motion for a new trial shows that no suggestion was then made that he had either said or done anything having any tendency to create such an impression. Such a suggestion would have shown judicial misconduct, and we regret that in one of the affidavits presented to us to obtain the order to show cause, matter is contained which was not laid before Judge Cochrane on the motion for a new trial bearing in that direction. Nothing which was omitted then can now be used, even if not denied, to show an improper disposal of that application; and the death of the judge, which occurred before this application was made to us, although a long time after his action which is complained of, prevents his response, which we are bound to believe would have been complete, to any such insinuation. He made a conditional order, allowing a new trial on conditions,...
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