Wright v. Dudley
| Decision Date | 11 April 1860 |
| Court | Michigan Supreme Court |
| Parties | Hugh H. Wright v. Owen Dudley and others |
Heard April 10, 1860
Appeal in chancery from Shiawassee circuit.
Motion denied, without costs.
A Gould, for complainant, who is appellee, moved to have the appeal dismissed, because the appellants had failed to cause a case, embodying the testimony, to be made and settled under § 3511 of Compiled Laws.
From the papers in support of the motion, it appeared that the cause was heard in the court below November 12th, 1858, on proofs taken in open court, and decree made as prayed by complainant, February 6th, 1859; that an appeal was regularly taken to this court, and return made to the appeal, but no case setting forth the evidence at large had been made and settled before the judge who tried the case, though without notice to the solicitors for the appellee, the appellant had procured from said judge and filed in this court, a copy of the judge's minutes of the testimony taken on the trial certified by such judge.
The motion to dismiss was noticed for the January term, but stood over to this term by consent of parties.
H McCurdy, for appellant, claimed that if the copy of the judge's minutes was not a case regularly settled under the statute, the defect was at most a mere irregularity, which the appellee should have taken advantage of at the first opportunity; and that he waived his right to do so by neglect to move at the last October term, previous to which time return had been made to the appeal, and the appellee notified thereof.
The Chief justice:
This being an appeal from a decree in chancery, in a case in which the witnesses were examined in open court, the only way in which it can be tried here upon the facts, is upon a case made and settled as prescribed in § 3511 of Compiled Laws, which provides that "in case any cause in chancery shall be so tried in open court, either party shall be entitled to make and settle a case, setting forth the evidence at large before the judge who tried the same, at such time and in such manner as said judge shall direct, or as shall be prescribed by the rules of said court; and upon the making and filing of such case within three months after such trial, the same shall be taken and deemed to be the evidence in said cause, to the same extent and with like effect as if the said testimony had been taken before a circuit court commissioner, and...
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People's Ice Co. v. Steamer Excelsior
...who heard the cause must settle the testimony, and we have been compelled in all cases where he has not done so to reject it. Wright v. Dudley, 8 Mich. 74; v. Scriven, 33 Mich. 500. The statutes have provided very carefully how such cases are to be settled. The stenographer's notes are not ......
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Stone v. Welling
...show that it is the minutes of the court on the trial. It does not show, in any manner, that any testimony was introduced, on either side: 8 Mich. 74. defendant brings us into this court, claiming that, under the law and the proof offered by him, injustice has been done, and he asks a rever......
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Carney v. Baldwin
... ... court," etc. It is conceded that no case was settled as ... provided by the act. In Wright v. Dudley, 8 Mich ... 74, it was held that in ordinary chancery appeals either ... party has the right to procure a case to be settled, and if ... ...