Reynolds v. Newaygo Circuit Judge

• Court: Michigan Supreme Court
• Writing for the Court: LONG, C.J.
• Citation: Reynolds v. Newaygo Circuit Judge, 109 Mich. 403, 67 N.W. 529 (Mich. 1896)
• Decision Date: 26 May 1896
• Parties: REYNOLDS ET AL. v. NEWAYGO CIRCUIT JUDGE.

67 N.W. 529

109 Mich. 403

REYNOLDS ET AL. v. NEWAYGO CIRCUIT JUDGE.

Supreme Court of Michigan

May 26, 1896

Mandamus brought by Job T. Reynolds and others against the circuit judge of Newaygo county. Writ denied.

William D. Fuller, for respondent.

LONG C.J.

On December 9, 1892, the relators brought suit in the Newaygo circuit court against Martin L. Sweet. The cause was tried in the circuit on March 21, 1894, and resulted in a judgment in favor of plaintiffs for $3,618.45. A stay of proceedings was granted for 60 days, to enable the defendant to move for new trial or settle bill of exceptions. Extensions of this order were made, when, on December 27 1894, a bill of exceptions was settled, and the cause certified to this court. On February 26, 1895, the judgment was affirmed in this court (62 N.W. 356); and on March 2d a remittitur was sent to the clerk of the circuit court, and there filed March 4, 1895. Execution was issued from the circuit court on March 25th, but not placed in the hands of an officer; and on March 29th the defendant caused the amount, together with the costs, to be paid. On December 20th, following, defendant, by his counsel, entered a motion in the circuit court, and gave due notice thereof, for leave to make a motion for a new trial. This motion came on to be heard, and was granted. Relators now ask a mandamus to compel the court below to vacate such order. The affidavits upon which the motion was based, and the return of the circuit judge, are now before us. It is contended by relators that the court below had no power to make the order, for the reason that the case had been removed to this court, and here affirmed.

It appears that the cause, after affirmance here, was remanded to the court below, and a remittitur duly filed in that court. That court, by reason thereof, was again possessed of the case. Wright v. King (Mich.) 65 N.W. 556, and cases there cited. There are cases holding that the trial court has no further jurisdiction of the case than to carry out the mandate of the appellate court. The reason assigned in such cases is that allowing the inferior courts to disregard the adjudication of the supreme court, or to refuse or omit to carry its mandates into execution, would be repugnant to the principles of the constitution. But in such cases it appears that some mandate had been sent to the inferior court, which it was claimed had been disregarded by the inferior court. Fortenberry v. Frazier, 5 Ark 200. In Skillern's Ex'rs v. May's Ex'rs 6 Cranch, 267, it was said: "It appears that the merits of the case had been finally decided in this court, and that its mandate required only the execution of the decree. The circuit court was bound to carry that decree into execution, although the jurisdiction of the court was not alleged in the pleadings." This...