Taylor v. Sullivan

• Decision Date: 04 December 1962
• Docket Number: No. 446,446
• Citation: 118 N.W.2d 421,368 Mich. 506
• Parties: Alean TAYLOR and Isaac Taylor, Petitioners, v. Wayne Circuit Judge Joseph A. SULLIVAN, Respondent. Motion
• Court: Michigan Supreme Court

Page 421

118 N.W.2d 421

368 Mich. 506

Alean TAYLOR and Isaac Taylor, Petitioners, v.Wayne Circuit Judge Joseph A. SULLIVAN, Respondent.

Motion No. 446.

Supreme Court of Michigan.

Dec. 4, 1962.

Louis L. Welner, Detroit, for petitioners.

Moll, Desenberg, Purdy, Glover & Bayer, Detroit, for respondent.

Before the Entire Bench.

DETHMERS, Justice.

Plaintiffs, husband and wife, sued a defendant doctor for malpractice and for assault and battery and rape allegedly committed on the person of plaintiff wife.A jury returned a verdict of no cause for action.Plaintiffs' motion for new trial was denied.They took an appeal to this Court.

After appealing here, plaintiffs filed a motion in circuit court, under Michigan Court Rule 66, § 2, requesting permission to file a transcript in the appeal consisting of only part of the testimony and matters taken by the reporter on trial.The motion was denied.

On application here for mandamus to compel the circuit judge to grant plaintiffs' motion for filing only a partial transcript in the appeal, this Court issued an order nisi requiring the circuit judge to show cause, on or before a certain date, why a writ should not issue as prayed, unless he should, before that date, enter an order vacating his previous order denying plaintiffs' petition and, instead, granting them the requested relief.

The respondent circuit judge ultimately elected to make return to the order nisi and to let his order denying plaintiffs' petition stand.The matter is thus submitted to this Court on plaintiffs' petition in this Court, respondent's return, and the briefs for and oral arguments made on behalf of the parties.

Plaintiffs' request to file a partial transcript was predicated on inability, by reason of poverty, to procure and pay for a full transcript.This is not controverted.They stated in support of their motion below and application here that the trial extended over several days, that most of the testimony related to the malpractice claim, and that on appeal here they will confine their presentation to the assault and battery and rape aspects of the case.They further say that their appeal will be limited to 4 listed assignments of error in that connection.The proffered partial transcript is set forth in their appendix in these proceedings.It appears that it is adequate for consideration of the 4 questions of error which they say they will urge on appeal.Neither defendant nor respondent makes a showing that defendant's position on the appeal, confined to those 4 questions, would be prejudiced by lack in the record or appendix of any additional portion of the testimony or hearings which would be included in a full transcript.Under such circumstances, we think plaintiffs'...