Rowe v. Rowe
| Decision Date | 05 November 1873 |
| Court | Michigan Supreme Court |
| Parties | Thaddeus H. Rowe v. Amelia J. Rowe |
Heard October 31, 1873
Certiorari to Rufus H. Grosvenor, circuit court commissioner of Kalamazoo county.
Proceedings quashed.
May & Buck, for defendant in certiorari, moved to dismiss the writ.
H. F Severens, contra.
OPINION
A motion is made to dismiss the writ of certiorari on two grounds: first, because the case is not a proper one for that writ; and second, because it was improvidently granted.
The first point relates to the merits, and should be considered when the case is argued, and not on this motion. The second is the only one proper to be discussed now; and the ground of objection is that the application for the allowance of the writ was made to a justice of this court and granted, while a similar application was pending and undetermined before the circuit judge of the county, where the proceedings removed by the writ were taken.
Where a writ has been granted by a competent officer, upon a sufficient application, we could not review his discretion in granting it, and the only question must be whether the conduct of the party has been such as to preclude him from any right to retain his writ. We are not prepared to say that a double application would be so irregular that the second must be regarded as nugatory. It must be treated in this Court as a matter which would be addressed to our discretion, and the Court would be bound to take such action as would work no injustice, and not to dismiss a writ granted by a competent person, unless the plaintiff has so acted as to justify such a measure.
In the present case, therefore, we should, if we had doubts on the fact as to when the commissioner's judgment was rendered, regard the plaintiff as abundantly justified in making the second application, because there was at least a conflict upon the point, whether the commissioner had really made his decision when the first application was made. If he had not, then that proceeding was premature, and would have rendered the allowance of the writ irregular. We think the showing before us is conclusive that the judgment had not then been rendered, and that the application on which the writ was granted was the only one properly and lawfully made. The action of the plaintiff in such a dilemma was entirely proper, whatever might have been the ultimate determination of the disputed fact.
It is proper to remark further, that in a case like the present, where the custody of children is involved, we should feel bound to look to them as interested quite as deeply as either of their contending parents, and should not be disposed, even in case of misconduct, to take any step within our discretion which might prejudice them.
The motion is denied with costs.
The case was afterwards heard upon the merits.
Arthur Brown and H. F. Severens, for plaintiff in certiorari, were stopped by the court.
May & Buck, for defendant in certiorari.
The principal question in this case concerns the power of a circuit court commissioner on habeas corpus to adjudicate on the right to the custody of children as between the parents.
The constitution vests "the judicial power" in one Supreme Court, in circuit courts, in probate courts, and in justices of the peace, but allows municipal courts to be established in cities.--Art. VI., § 1. It also declares that "The Legislature may provide by law for the election of one or more persons in each organized county, who may be vested with judicial powers not exceeding those of a circuit judge at chambers."--Art. VI., § 16. It is under this last section that the power in question is supposed to be authorized.
We have already, in several cases, had occasion to consider these sections of the constitution, and to pass upon powers assumed to be exercised under them. In Daniels v. People, 6 Mich. 381, it was held that circuit court commissioners might take bail in criminal cases, and in Edgarton v Hinchman, 7 Mich. 352, their authority to dissolve attachments was sustained. But in neither of these proceedings does the officer render any final adjudication on the rights of parties, but his action is entirely collateral to the principal proceeding,...
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