Tawas & B.C.R. Co. v. Iosco Circuit Judge

• Citation: 44 Mich. 479,7 N.W. 65
• Parties: T. & B.C.R. CO. v. IOSCO CIRCUIT JUDGE.
• Decision Date: 27 October 1880
• Court: Michigan Supreme Court

7 N.W. 65

44 Mich. 479

T. & B.C.R. CO. v. IOSCO CIRCUIT JUDGE.

Supreme Court of Michigan

October 27, 1880

An interlocutory order or decree that disposes of the merits is not only erroneous but void, and, if made in an equitable proceeding, is appealable as a final decree. The jurisdiction of this court in mandamus is plenary, and the mere existence of another remedy, which, under the circumstance, is not adequate, will not furnish ground for refusing the writ. Mandamus granted to compel the setting aside of an order granting an injunction claimed to be beyond the power of respondent to grant, and which it refused to disturb although the relator may have had a remedy by appeal.

Mandamus.

CAMPBELL J.

An application is now made, after cause shown, for a peremptory mandamus to compel the respondent to set aside an order granting an injunction which is claimed to be beyond his authority and which he has refused to disturb. As the grounds of the motion do not rest on the mere impropriety but upon the illegality of this order, and as some points of jurisdiction are raised both as to that of the respondent and our own, a brief reference to the nature of the controversy is necessary. It will not be important to go into particulars very far. The injunction was issued in a suit in equity brought in the circuit court for the county of Iosco, by Dewitt C. Welch and J. Frederick Behr against Charles M Prescott and Charles M. Averill and the Lake Huron &amp Southwestern Railway Company, and the Tawas & Bay County Railroad Company. The grievance complained of was the refusal of the latter company to carry logs and lumber for complainants at rates and in the manner agreed upon in a contract made in April, 1878, by a firm named Hall, Shook &amp Co., of which complainants were members, and to whose rights they claim to have succeeded. The grievance is alleged to have arisen out of the following state of facts:

Hall, Shook & Co., having purchased the lumber on certain lands not very far from Tawas City, contemplated making a private tramway to that place for their own convenience. Prescott and some other persons persuaded them to give up their private scheme and aid in another for the construction of a longer tramway reaching beyond their lumber grounds, to be in the hands of a corporation organized under the General Laws relating to tram railways. Hall, Shook & Co. declined taking stock but agreed to build a few miles of the road for considerations moving in part from Prescott and other parties, and in part from the corporation. The agreement they made with the corporation required the latter to carry their lumber of specified kinds, taken from the lands referred to, at 75 cents a car load of four tons--the cars to be loaded by Hall, Shook & Co., and drawn to Tawas by the corporation. No time was fixed within which the lumber carriage was to be completed, except that it embraced the lumber from certain lands. The road was completed. The bill after showing this, sets out that debts were created, and in course of time an assignment made by the corporation under which Prescott became purchaser of the assets and through him they passed to the Tawas & Bay County Railroad in which he is principal stockholder. This corporation is a railroad and not a tram road company and its road is considerably longer than the other. There are allegations of frauds on the part of Prescott against the interests of the original corporation in managing to absorb the assets.

It is then averred that the new company refuses to carry out the old agreement and requires large prices, and otherwise violates its supposed duty to complainants.

The circuit judge enjoined the relator by preliminary injunction from running over so much of the road as was built by complainants, except on condition of carrying logs and lumber on the terms agreed upon in April, 1878.

There are two considerations to be noticed on the merits of this hearing--First, whether the circuit court could take jurisdiction of such a case at all; and second, whether it had power under any circumstances, to issue such a preliminary injunction. Upon the first question we shall only refer to a few of the general outlines of the case. The second will be dealt with separately.

This agreement was not of such a nature as to give complainants any more claim against the property and road-bed than would be possessed by any other contractors. If the price had been payable in any other way, and no lien reserved, the road would not be bound in any such way as would allow such a bill as the present to enforce a specific claim on it. The contract to run the lumber of complainants is the same in all respects as if made with anybody else, and is no more than an ordinary executory contract. If there had been no change of...