Updegraff v. Attorney Gen.

• Decision Date: 02 June 1941
• Docket Number: No. 87.,87.
• Citation: 298 Mich. 48,298 N.W. 400
• Parties: UPDEGRAFF v. ATTORNEY GENERAL et al.
• Court: Michigan Supreme Court

298 Mich. 48

298 N.W. 400

UPDEGRAFF

v.ATTORNEY GENERAL et al.

No. 87.

Supreme Court of Michigan.

June 2, 1941.

Action by L. D. Updegraff against Thomas Read, Attorney General, and others for a declaratory judgment. From an order dismissing the petition, plaintiff appeals.

Affirmed.

Appeal from Circuit Court, Calhoun County; Blaine W. Hatch, judge.

Argued defore the Entire Bench.

N. A. Cobb, of Battle Creek (Roger H. Nielsen, of Battle Creek, of counsel), for appellant.

Herbert J. Rushton, Atty. Gen., Edmund E. Shepherd, Sol. Gen., and Daniel J. O'Hara, Asst. Atty. Gen., for appellees.

BUTZEL, Justice.

On April 3, 1940, plaintiff filed a petition for a declaratory judgment under the provisions of Act No. 36 Pub.Acts 1929, being §§ 13903 to 13909, 3 Comp.Laws 1929 (Stat.Ann. § 27.501, et seq.). He alleged that he was being prosecuted before a justice of the peace for a misdemeanor arising through his failure to observe the quarantine on dogs, as proclaimed by the governor for the period between December 27, 1939, and March 27, 1940, under Act No. 181, Pub.Acts 1919; that he is the owner of a Great Dane dog that has been vaccinated for rabies; that the dog has not attacked or bitten any animal or person, is not a sheep-killer and is not vicious; that the dog is always subject to control regardless of whether attached to a leash or not, provided the liberty of the dog is not restrained. The quarantine terminated prior to the filing of plaintiff's petition for declaratory judgment. Plaintiff appeals from an order dismissing his petition. The reasons for the order appealed from will be more fully discussed so as to guide future actions.

The Declaratory Judgment Act, supra, provides that such declarations may be obtained by means of ordinary proceedings at law or in equity or by means of a petition on either the law or equity side of the court as the nature of the case may require, and where a declaration of rights is the only relief asked, the case may be noticed for early hearing as in the case of a motion. 3 Comp.Laws 1929, § 13904 (Stat.Ann. § 27.502). The case was begun on April 3, 1940, on the law side of the court but without any regular legal process first being issued. The service of the petition was accompanied with a notice to defendants that it would be brought on for hearing 27 days later. The court held that process should have been issued in the regular manner and that until issue was framed, the case could not be summarily disposed of as a motion in a case already begun. We find nothing in the act which dispenses with the issuance of proper process and formal presentation, the same as is required in any other action. Had plaintiff served defendant with regular summons and the petition contemporaneously, defendants would have been obliged to answer within 15 days from the date of service of the petition the same as in a case of service of a declaration or bill of complaint at the time the summons is served. See Court Rules Nos. 13, § 7; 14, § 5; 27, § 3. The answer, as a rule, would result in the issue being framed and ordinarily the case could then be brought on for hearing upon short notice the same as a motion. The court in its discretion could extend the time of hearing. Plaintiff, in the usual case involving civil rights, could file his petition for declaratory judgment on the chancery side of the court and possibly secure temporary injunctive relief upon proper conditions, if the court in its discretion deemed it necessary. We find nothing in the law or rules that permits a departure from the regular procedure in ordinary actions. Proceeding in a regular manner could have brought the case to a hearing more quickly than the irregular method plaintiff used. The judge was correct in upholding the contentions of defendants who specially appeared and showed that they had not been served with proper process.

While plaintiff raises fourteen questions in his petition, they relate to matters that may be presented in the criminal case that is pending. We condemn the practice of a person after being charged with violating the law and then asking for a declaratory judgment in an independent cause, with the result that two cases involving the same subject matter are pending at the same time. If such a practice were permitted, it would cast an...