Scott v. Scott

• Decision Date: 19 May 1858
• Parties: Scott v. Smart's Executors
• Court: Michigan Supreme Court

1 Mich. 295

Scott v. Smart's Executors

Supreme Court of Michigan

May 19, 1858

Petition to revive a suit in chancery.

The facts fully appear in the opinion of the court.

Plea overruled.

Backus for complainant.

Fraser & Davidson, for defendants.

OPINION

By the Court, Wing, J.

The petition in this case is filed, praying that a suit pending in this court may be revived.

The petition was filed January 2, 1849. It states that the petitioner heretofore exhibited his bill in the supreme court of the territory of Michigan, against defendants, which, by an act of the legislature has been transferred into this court.

To this petition, some of the defendants therein named filed their plea, on the 4th of January, 1849, in which they state that said suit was originally commenced in the supreme court of the late territory of Michigan, on the 31st day of August 1826, in which court it continued and was pending and undetermined at the time of the adoption of the constitution of the state of Michigan; that by virtue of an act of the legislature of the state, entitled "An act to establish a court of chancery, and for other purposes," adopted the 26th of March 1836, and which took effect on the 4th of July 1836, it was enacted and declared that all the powers and jurisdiction conferred on the supreme court of the late territory of Michigan, in and by an act entitled, "An act to prescribe the mode of proceeding in chancery," are hereby conferred on said court of chancery; that by virtue of the provisions of this act, and a certain other act of said legislature, entitled, "An act to organize the supreme court of the state of Michigan, and to establish circuit courts," approved the 26th March, 1836, which also took effect on the 4th of July, 1836, all jurisdiction, powers and authority vested in said supreme court of the late territory of Michigan, touching all suits in chancery or otherwise, were repealed, abrogated and taken away, and said court was then and there abolished, and ceased to exist, on said 4th of July, 1836; and that by force and effect of the provisions of the revised statutes of 1838, pages 690 to 697, all and every law and provision of law by which said late supreme court had been either created or vested with equity powers or jurisdiction, were repealed; that on the 26th March, as well as on the 4th of July, 1836, the said suit in chancery was and remained undetermined in said supreme court of the territory of Michigan; that Elon Farnsworth had been solicitor, and so continued, and after the death of Miller he became one of the defendants, as executor of Miller, and on the 18th of July, the said Farnsworth became and continued to be the chancellor, until the 28th day of February, 1842; that said suit so remaining in said supreme court of the late territory of Michigan has not been legally removed or transferred to this or any other court having cognizance to hear, try and determine the same, by reason of which the said suit has been discontinued, abated, and ceased to be pending in any court whatever. The defendants, therefore, humbly pray the judgment of this court, whether the complainant is entitled to have said suit revived against them, and pray to be hence dismissed, with their reasonable costs, etc.

No objection seems to be made to the form or manner of raising the question arising upon the plea; the authorities appear to warrant such a plea to a petition for revivor.

The first section of the schedule accompanying the constitution provides, that no inconvenience may arise from a change of the territorial government to a permanent state government, it is declared, that all writs, actions, prosecutions, contracts, claims and rights of individuals and bodies corporate, shall continue as if no change had taken place in this government, etc.; and all process which may, before the organization of the judicial department under this constitution, be issued under the authority of the territory of Michigan, shall be as valid as if issued in the name of the state.

Section 2. All laws now in force in the territory of Michigan, which are not repugnant to this constitution, shall remain in full force until they expire by their own limitation, or be altered or repealed by the legislature.

In this section of the schedule we have a plain expression of the intention of the framers of the constitution, that all causes pending in the courts of the territory of Michigan should be preserved. It was left to the legislature to provide courts for the reception and determination of such causes.

The word "actions" in the schedule is, I think, used in its largest sense, and not in a limited or technical sense, and includes all civil actions pending in court at the time, whether they were cases at law or in equity. It is used in contradistinction to "prosecutions."

The constitution took effect and became operative from and after the first Monday of November, 1835. It may have been supposed that there was a doubt whether or not, by the mere change of sovereignty in the territory, all courts and legal proceedings would not terminate, and therefore the first section of the schedule was adopted. And it may have been expected that all causes then pending in the territorial courts would be transferred to the state courts, either before or at the time the territorial courts should be abolished.

By the act of the state legislature organizing the supreme court of the state, passed the 26th day of March, 1836, and which took effect on the fourth of July thereafter, all civil suits at law, and prosecutions pending in the supreme court of the territory of Michigan, were transferred to the supreme court of the state; and by an act establishing the state court of chancery, which was enacted and took effect the same day with the law last cited, all suits and matters in chancery remaining and pending in the supreme or circuit courts of the late territory of Michigan, were transferred to the court of chancery established by that act, except those cases in which the chancellor was a party or of counsel; and it was enacted that this class of causes should be proceeded in by the courts in which the same originated, as though this act had not passed: provided, that in cases in which the chancellor might be interested or of counsel, the supreme court should have original jurisdiction.

It is, perhaps, enough to say, in relation to these acts, that the supreme court of the state held that they did not transfer the class of causes in which the chancellor had been counsel or a party, to the new supreme court. The opinion of the supreme court was not reduced to writing, and, therefore, we can only state the fact handed down to us by tradition.

The next question is, whether there is any limitation to the provision in the schedule preserving and continuing causes. It is said, the first section may be held to refer to the second section, as a means by which the causes were to be saved; and that if the laws were repealed which had been enacted by the territorial legislature, there could be no court in which causes could be left pending and to be continued; that there could be no suit without a court in which suitors could have a standing or their causes remain.

But it is urged, in opposition to this view, in substance, that the schedule preserved the causes until some new position should be assigned to them by a law of the state, whether sooner or later; and that the effect of abolishing the supreme court of the territory could not be to destroy that which was preserved and protected by a higher law, the constitution, to the provisions of which all the people of the state (including defendants) are presumed to have assented.

I must confess, these various considerations have occasioned me some embarrassment in working out a result which shall fully accord with the clearly expressed intention of the framers of the constitution; for if these causes are saved without the aid of legislation, or in spite of it, it must be accomplished by the mere power of the schedule. How it was done, I cannot clearly perceive -- where the causes were preserved, I cannot clearly understand, any more than it could be seen or understood how Mohamet's coffin was suspended betwixt the heavens and the earth; and yet it is a matter of history, and as certain as a large portion of the facts stated by historians, that the coffin was so suspended. In the minds of the faithful there was no difficulty in the case -- no lack of power to accomplish such a result, and no lack of faith to believe in its accomplishment.

Without undertaking to express a very decided opinion as to the position of this cause after the law of this state took effect, abolishing the old territorial supreme court, let us proceed to trace the history of the legislation in reference to it.

The supreme court having decided that this cause was not transferred from the supreme court of the territory to that of the state, and the old supreme court having been abolished, the legislature, at their next session, on the 15th of February, 1837, passed another law, which was intended to remedy the defects in the prior legislation in relation to this class of cases. By this law it was provided that all suits and matters of chancery in which the chancellor of the state had been a party or was concerned as counsel, theretofore commenced or pending in the supreme court of the territory of Michigan, and still undetermined, should be and the same were thereby transferred to the supreme court of the state for the first circuit; and all such chancery causes commenced or pending in said late supreme court, and still undetermined, in which the chancellor might not have been a party or concerned as counsel,...