Toledo & A.A.R. Co. v. Johnson
| Decision Date | 11 October 1882 |
| Citation | 49 Mich. 148,13 N.W. 492 |
| Parties | TOLEDO & ANN ARBOR R. CO. v. JOHNSON. |
| Court | Michigan Supreme Court |
An appellant cannot be deprived of the benefit of his exceptions on the ground that he was not injured by the rulings if it does not clearly appear that he could not have prevailed in any view of his case.
The supreme court will not usually consider exceptions taken by the prevailing party.
A statute which imposes a forfeiture of franchises for failure to perform should explicitly fix the time at which the forfeiture may be enforced.
A claim of the forfeiture of a franchise cannot be raised collaterally, but only in a direct proceeding instituted for the purpose.
Whether a railroad corporation has finished its road and put it into full operation is a question for the jury.
Error to Monroe.
Grosvenor & Landon and James M. Ashley, Jr., for plaintiff and appellant.
E.O Critchett, N.C. Stacy, and S.E. Randall, for defendant.
This action was commenced in justice court upon an instrument of which the following is a copy:
Indorsed: E.D. KINNE, Assignee.
The plaintiff recovered a judgment in justice court, and the defendant on appeal in the circuit. The case comes here on writ of error, and the error relied upon is to the charge of the court given on the request of the defendant, viz.:
The defendant insists in this court, that the instructions so given were correct, but if not, that the plaintiff was not injured thereby, as it appears that the franchises of the company to whom the promise was made, could not be and was not sold by the assignee under the bankruptcy proceedings against it; that even if sold they could not be purchased and held by an individual; that the pretended sale of the franchises of the company was unauthorized and illegal, and that the purchaser could not proceed with others to organize as a corporation, as the act of 1873 applies only to purchasers under foreclosure sales.
In order to prevent a party, bringing a case to this court for review, from the benefit of his exceptions, where well taken, upon the ground that he was not injured by the rulings made against him, it should very clearly appear that upon the case as made, he could not in any view that might be taken of it succeed. Ordinarily exceptions taken on the trial, by the party prevailing, are not considered by this court. It is the unsuccessful party that comes here complaining and asking for relief, and he does not come prepared to discuss the exceptions taken by the other party, or to meet such objections as are urged against a reversal in the present case.
It would also seem that similar questions were raised and substantially passed upon by this court, in a case brought by this plaintiff upon a similar agreement, and where the bankruptcy proceedings and organization were the same as in the present. Wilcox v. Toledo, etc., R. Co. 43 Mich. 584; [S.C. 5 N.W. 1003.] See, also, Detroit, etc., R. Co. v. Stearns, 38 Mich. 701, and Mich., M. & C.R. Co. v. Bacon, 33 Mich. 467.
Was then the charge as given, which took the case from the consideration of the jury, correct? The Toledo, Ann Arbor & Northern Railroad Company, to whom the promise was made, was organized in 1869. The forty-seventh section of the railroad act of 1855, then in force, was as follows: "If any railroad corporation shall not, within three years after its incorporation, begin the construction of its road, and expend thereon 10 per cent. of the amount of its capital, ...
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