Yawkey v. Richardson

• Decision Date: 20 January 1862
• Citation: 9 Mich. 529
• Court: Michigan Supreme Court
• Parties: Samuel W. Yawkey v. John H. Richardson and another

9 Mich. 529

Samuel W. Yawkey v. John H. Richardson and another

Supreme Court of Michigan

January 20, 1862

Heard January 13, 1862; January 14, 1862

Error to Saginaw circuit. The case is sufficiently stated in the opinion.

Judgment reversed.

Webber & Wheeler, for plaintiffs in error:

Taking it for granted that circuit court rule 71 only authorizes discontinuance as to one of several defendants when there has been an inadvertent misjoinder, and that it was allowed in this case as a right, though there was a deliberate misjoinder for a fraudulent purpose, there was error which this court may correct: Comp. L., §§ 3382, 3390; art. 6, § 3 of Constitution; 4 Iowa 358. Mandamus is not the remedy in this case, as irreparable injury would result from the error before the writ could issue. Exception may be taken if the party be aggrieved by any opinion, direction or judgment: Comp. L., § 4044.The rule, as expounded by the statute, does not give the court a discretion which can not be reviewed, to make such an order: 26 Wend. 143; 5 Wend 114; 29 Me. 9; 1 Doug. Mich., 434; 18 Me. 249; 30 Me. 30; 10 East, 404; 7 B. and C., 691.

Moore & Gaylord, for defendants in error:

The rule gives the circuit court the power to allow the discontinuance, and leaves it to the discretion of that court to determine in what cases it may be done. Whether that discretion be wisely exercised or not, this court will not undertake to determine: 7 Mich. 332; 5 Mich. 242; 4 Hill 119; 15 Wend. 672; 2 Mich. 407; 1 Doug. Mich., 110; 3 Mich. 83.

OPINION

Campbell J.:

The action below was brought by the defendants in error against the plaintiff in error and Curtis Emerson, upon the common counts for goods sold and delivered. Evidence having been introduced to make out the plaintiffs' case, which had no tendency to show any but sole transactions of Yawkey, the plaintiffs, without any affidavit or statement showing inadvertence, introduced a stipulation signed by Curtis Emerson, authorizing them to discontinue as against him; and thereupon moved for leave to discontinue the suit as to Emerson, so as to leave it to proceed against Yawkey alone. This was resisted upon affidavits showing that, when the suit was commenced, Yawkey was a resident and citizen of the state of Illinois; and that, a previous suit having been commenced against him in the same court for the same cause of action, he applied, under the act of congress, to have it removed to the circuit court of the United States for the district of Michigan; when, upon the decision in his favor of the application, the plaintiffs discontinued before the order was entered.

The circuit court for Saginaw county, upon these showings, nevertheless permitted plaintiffs to discontinue as against Emerson, and directed the suit to proceed against Yawkey alone. Other questions arose upon the trial, but we do not propose to consider them.

The act of congress, allowing a defendant who is a citizen of one state, sued in a court of a state of which he is not a citizen, by those who are citizens of the latter state, to file a petition of removal when he enters his appearance, such removal, when applied for in due form, and at that time, is a matter of right: Brightly's Dig., 129. But the statute will not allow this application to be postponed until other steps are taken in the cause by the applicant. Neither can the cause be removed if there are other material defendants, who are citizens of the same state with plaintiffs; inasmuch as the jurisdiction arises under the United States constitution, which restricts this class of cases in that respect. It will be apparent, therefore, that the effect of the proceedings in the case before us, upon the hypothesis set up in defendant's affidavits, was, by joining Emerson as a defendant to oust Yawkey of his right to remove the case to the United States court; when, by the discontinuance, a case is left which, but for that device, he would have been entitled of right to have transferred.

The statutes provide that the Supreme Court may make rules "to effectually prevent the defeat or abatement of any civil suit ex contractu, for either any non-joinder or misjoinder of parties, where the same can be done consistently with justice:" Comp. L., § 3390. Rule 71 of the circuit court rules was adopted to carry out this provision, and makes it lawful for the circuit courts to permit such discontinuance upon terms.

It was claimed by defendants in error, that the liberty to discontinue under that rule was, if not an absolute right of the party, at least in the uncontrolled...