Scholz v. Boening, 74.
| Decision Date | 08 December 1936 |
| Docket Number | No. 74.,74. |
| Citation | 278 Mich. 76,270 N.W. 222 |
| Parties | SCHOLZ et al. v. BOENING et al. |
| Court | Michigan Supreme Court |
Appeal from Circuit Court, Macomb County, in Chancery; James E. Spier, judge.
Suit by Herman Scholz and others against Frank Boening and others. From a decree, defendants appeal.
Argued before the Entire Bench, except POTTER, J.
James Segesta, of East Detroit (Abraham Croll, of East Detroit, of counsel), for appellant Amanda Boening.
Ira J. Pettiford, of Detroit, for appellees.
During their lifetimes Gustave Scholz and wife, Mary, owned a 60-acre farm in Warren township, Macomb county. These parties died in 1927, their estates were duly probated, and the real estate assigned to the heirs. Plaintiffs Herman Scholz, George Scholz, Charles Scholz, Elmer Scholz, and Catherine Scholz are the heirs at law of Gustave Scholz, and with the exception of Catherine Scholz are the children of Gustave and Mary Scholz deceased. Catherine Scholz is the widow of a son, Gustave Scholz, Jr. The defendant Frank Boening, husband of Amanda Boening, was the adminstrator of the Scholz estate; and the defendants Amanda Boening, Edward Scholz, and Ella Baumgartner are children and heirs at law of Gustave and Mary Scholz.
In March, 1934, plaintiffs filed a bill of complaint against defendants for partition and an accounting of rentals received by Frank Boening. Defendants filed their answer in which they contended that the property could not be equitably partitioned and assigned; and that the property should be left intact until a private sale of the entire parcel could be made.
In September, 1935, the trial judge ordered the land to be partitioned, appointed commissioners for that purpose, and ordered them to partition the land and make the allotments to each party. In December, 1935, the commissioners filed their report, they divided the land into eight parcels, but did not designate the particular parcel each heir should receive. On March 6, 1936, a hearing was had, the survey of the surveyor was produced and filed in court, but no testimony was taken. After much discussion and failure to agree upon which parcel each party should take, the court without objection directed the attorney for the defendants to have his clients in his office and make a selection by 8:30 p. m. that night and to notify plaintiffs' counsel of the selection. The defendants failed to make such a selection, and at 9:20 p. m. plaintiffs made a selection of parcels 1, 2, 3, and 7. The following day the defendants made a selection of lots 1, 2, and 7 claiming that they were unable to make their selection on the evening of March 6, 1936, by reason of the fact that the parcles were not properly staked out. Thereupon the court on March...
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Galperin v. Department of Revenue of Mich.
...avoid litigation meet with judicial approval. Booth Fisheries Co. v. Alpena Circuit Judge, 170 Mich. 611, 135 N.W. 1063; Scholz v. Boening, 278 Mich. 76, 270 N.W. 222; In re Peck's Estate, 323 Mich. 11, 34 N.W.2d 533. Nor does the law encourage a claimant to retain the money received under ......
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Miller v. McGinnis
...v. Federal Insurance Co., 195 Mich. 60, 161 N.W. 928, 932,168 N.W. 124. We recently quoted the above with approval in Scholz v. Boening, 278 Mich. 76, 270 N.W. 222. The record does not justify nullification of this settlement on the ground of the alleged fraud. And since we find a valid set......