Smith v. Boomhower, 14.
| Decision Date | 02 June 1930 |
| Docket Number | No. 14.,14. |
| Citation | 230 N.W. 905,251 Mich. 126 |
| Parties | SMITH v. BOOMHOWER, Circuit Judge. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Petition for mandamus by Herbert W. Smith against Zenophon A. Boomhower, Circuit Judge.
Writ denied.
Argued before the Entire Bench.
George W. Des Jardins, of Lapeer, for relator.
Vincent D. Ryan, of Flint, for respondent.
The plaintiff seeks a writ of mandamus to review contempt proceedings in which an order was entered requiring him to pay Jessie Oviatt the sum of $1,054.07 within ten days and in default thereof to be confined in the Lapeer county jail until payment was made.
Herbert W. Smith, the plaintiff herein, was attorney for Jessie Oviatt in litigation involving certain premises of the value of $1,450. While this relationship existed, the premises were sold on mortgage foreclosure to Smith for $220. After the time for redemption expired, Mrs. Oviatt made a tender to Smith of the amount paid by him on the sale and demanded a deed. He refused. She brought suit. In the circuit court, it was held that he was holding the property as trustee and a conveyance to her was decreed. The decree was affirmed in this court in Oviatt v. Smith, 226 Mich. 253, 197 N. W. 535. Obstacles in the way of enforcing this decree were encountered because of the fact that Mr. Smith sold the premises on land contract to Edward M. Pierson and Caroline Pierson, his wife, and subsequently deeded it to them. Mrs. Oviatt began another suit in which an accounting was had and the amount due from the plaintiff was determined. The contempt proceedings grew out of an attempt to enforce this decree. The decree recites that Mr. Smith ‘is primarily liable’ to Mrs. Oviatt for the money he had received from the sale to the Piersons in the amount of $916.58 and that she might have execution therefor. The plaintiff bases his defense on this language of the decree which he says provides for the payment of an ordinary debt collectable by execution; and that therefore the court was without jurisdiction in the contempt proceedings. We do not agree with this contention. The money he received from the Piersons was from the sale of trust property. He received it as trustee for Mrs. Oviatt. It constitutes a special fund in his hands belonging to her. A writ of execution is not the appropriate remedy for its collection and does not preclude proceedings for contempt. The question is ruled by Carnahan v. Carnahan, 143 Mich. 390, 107 N. W. 73, 75,114 Am. St....
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Ex parte Preston
...been held proper where an attorney has refused to pay over funds received from the sale of his client's property. Smith v. Lapeer Circuit Judge, 251 Mich. 126, 230 N.W. 905. The courts of this state have long since put to rest the contention that a husband and father may not be imprisoned f......
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Maljak v. Murphy
...for another person, then the failure to turn over these funds could be enforced by contempt. See, for example, Smith v. Lapeer Circuit Judge (1930), 251 Mich. 126, 230 N.W. 905, and Burnett v. King (1933), 263 Mich. 33, 248 N.W. 540. The cases which are cited by the majority in footnotes 8 ......
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Castilleja v. Camero, 207
...been held proper where an attorney has refused to pay over funds received from the sale of his client's property. Smith v. Lapeer Circuit Judge, 251 Mich. 126, 230 N.W. 905.' The necessity for the issuance of the writ of mandamus in protection of the authority of the courts is definitely sh......
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In re Ferrell, 2810.
...N.Y.S.2d 647; Mendelsohn v. Rosenberg, 248 App.Div. 743, 288 N.Y.S. 792, appeal dismissed, 273 N.Y. 385, 7 N.E.2d 274; Smith v. Boomhower, 251 Mich. 126, 230 N.W. 905; 17 C.J.S. Con tempt § 13. See also Blackwelder v. Collins, 102 U.S.App.D.C. 290, 252 F.2d 854; Edwin v. Edwin, 304 Ill.App.......