Banks v. Wayne Circuit Judge

221 Mich. 147 | Mich. | 1922

Fellows, C. J.

(after stating the facts). Judge Marschner was right in holding that the facts set up in the supplemental bill constituted a cause of action at law rather than grounds for relief in a court of equity. If Thomas is entitled to recover from Banks upon the facts alleged it is for money had and received by Banks under a voidable contract avoided by Thomas on attaining his majority. Under these circumstances it was proper to transfer the case to the law ■side of the court. Von Hoene v. Barber, 215 Mich. 538.

Counsel for Mr. Banks insist that the order of Judge Dingeman was a final, appealable order and res adjudicada of the rights of the parties. We do not determine the question. It may be so pleaded on the law side. By making the order of transfer the trial judge does not circumscribe the issue on the law side or determine in advance the questions which may be there raised.

That portion of the order of Judge Marschner which continued Mr. Banks’ bond has been vacated by consent of counsel for Mr. Thomas. There is no need to issue a writ of mandamus to compel the doing of that which has already been done.

Upon the state of the pleadings the answer of the defendant must be taken as true. From it it appears that the procedure fixed in the order of transfer was suggested by counsel for the present plaintiff, and that no objection was then made to the time fixed for filing the pleadings or for trial. Under these circumstances the propriety of these portions of the order may not be raised in this court for the first time.

The writ will be denied, with costs.

Wiest, McDonald, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.