Quail v. Cole
| Decision Date | 06 December 1932 |
| Docket Number | No. 154.,154. |
| Citation | 260 Mich. 642,245 N.W. 542 |
| Parties | QUAIL v. COLE. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Wayne County; Arthur Kilpatrick, Judge.
Action by J. Gilbert Quail against John W. Cole. From an order setting aside a default and judgment, plaintiff appeals.
Appeal dismissed.
Argued before the Entire Bench.
Arthur Gloster, of Detroit, for appellant.
Sharp & Roberts, of Detroit, for appellee.
This is an appeal, prosecuted as of right, by plaintiff from an order setting aside a default and judgment.
The record shows that application by plaintiff for leave to appeal was denied by this court. Review, if any, is by mandamus and not by appeal.
Counsel invokes the statute, C. L. 1929, § 15491, and court rules 55 and 60. The statute relates to final judgments, and plaintiff has no judgment, but seeks direction, by this court, to have his judgment reinstated. The mentioned rules, while requiring mandamus to be termed an appeal, do not change the law that it is an original writ, and that it does not issue without application and allowance.
Leave to prosecute an appeal in the nature of mandamus was necessary, and was not obtained. We therefore, sua sponte, dismiss the appeal.
Defendant, not having filed a brief at the time this opinion was written, will not recover costs.
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W. Mich. Transp. Co. v. Mich. Pub. Utilities Comm'n (In re Consol. Freight Co.)
...leave. Court rule No. 60. For that reason the appeal might well have been dismissed by the court on its own motion. Quail v. Cole, 260 Mich. 642, 245 N. W. 542.McDONALD, C. J., and SHARPE, WIEST, and BUTZEL, JJ., concurred with NORTH, J. POTTER, Justice (dissenting in part). March 20, 1923,......
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Fitch Drain No. 129, In re
...the controversy involves more than $500.' We have had occasion to discuss the effect of this rule in a mandamus case. In Quail v. Cole, 260 Mich. 642, 643, 245 N.W. 542, we said: 'Leave to prosecute an appeal in the nature of mandamus was necessary, and was not obtained. We therefore, sua s......
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American Eutectic Welding Alloys Sales Co. v. Grier
...appeal must therefore be dismissed. As this question is not raised by counsel for appellees, no costs will be allowed.' In Quail v. Cole, 260 Mich. 642, 245 N.W. 542, the appellant claimed appeal of right from another non-final order (setting aside default and judgment) in a law case. Relyi......
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Cook v. Wolverine Stockyards Co.
...of which writ of error or, under present Court rules which have left the character of the remedy of mandamus unchanged. Quail v. Cole, 260 Mich. 642, 245 N.W. 542, general appeal would lie and afford the adequate and proper remedy. We are now satisfied, therefore, that leave to appeal in th......