212 Mich. 70 | Mich. | 1920
This case is before this court upon motion of the plaintiffs and appellees for an order placing it upon the present October term docket of this court for argument, or for an order dismissing the appeal of the defendants herein for the following reasons:
(1) That said cause is not now upon the docket of this court for the present October term, because of the neglect of the said defendants, appellants, and failure on their part to comply with the terms of certain stipulations entered into by them, and of record in this court.
(2) Because of the fact that under all of the circumstances connected with the cause and its appeal, the plaintiffs are entitled to have this cause promptly tried and determined, or to have this appeal dismissed.
(3) Because of the fact that there has not been
The motion is based upon the records and files in the cause, and upon the affidavit of counsel and the certificate of the circuit judge. The motion was made on October 4, 1920, and noticed for hearing upon the 12th day of October. The bill of complaint in the cause was filed in the Muskegon circuit court in chancery, in December, 1919. The final decree was entered and filed on the 12th day of April, 1920; and the claim for appeal was filed by the defendants on the 28th day of April, 1920. The testimony was ordered seasonably by the defendants, and time to settle the case was extended from time to time by the court below until the 15th day of August, 1920.
On the 5th day of August defendants caused to be filed in this court their petition asking for a writ of mandamus to be directed to the circuit judge to enter an order further extending the time within which to prepare a case for settlement in said cause. By order of this court an alternative writ of mandamus was issued commanding the circuit judge to enter an order to extend the time within which to prepare a case for settlement to and including the first day of September, 1920, or that the circuit judge show cause why a peremptory writ of mandamus should not be issued. Time was extended by the circuit judge to September 1, 1920, on August 7, 1920. Thereafter, on the 80th day of August, 1920, the defendants caused to be brought on before the circuit court a motion asking for an order further extending the time within which to prepare a case for settlement. On the argument of this motion counsel for plaintiffs offered to opposing counsel to stipulate a reasonable extension of time upon the conditions that the defendants stipulate that this cause might be brought on for argument at the October (1920) term of this court, and that it be
“In this cause the time within which the defendants may procure a settlement and signing of a case in this cause and to take such other steps necessary to complete an appeal therein,- expiring on the first day of September, 1920, it is hereby stipulated and agreed by and between the said parties, by their respective attorneys, that the time within which said defendants may procure a settlement and signing of said case, be extended to and including the 8th day of September, 1920, and that this cause shall be placed upon the calendar of the October term of the Supreme Court ' and shall be brought on for argument at said term, the said defendants waiving notice of argument thereof.” Dated August 30, 1920, and signed by counsel for the respective parties.
The case was finally settled and signed on September 8, 1920. It was filed with the clerk of the circuit court upon the 18th day of September, 1920, and the return made and a manuscript case as settled (together with the pleadings constituting the record in the case) was filed with the clerk of this court on October 1, 1920.
It would seem that the provisions of section 11 of Circuit Court Rule No. 66, and section 24 of chapter 50 of the judicature act (3 Comp. Laws 1915, § 13759) were complied with in perfecting the appeal to this court.
In resisting the present motion in this court one of the attorneys for the defendants filed an affidavit stating that at the time of the settling of said case certain amendments were proposed by the attorney for plaintiffs to the case on appeal, which were agreed to but were not then incorporated into the case, since
From an examination of the affidavits on file, we are not prepared to say that the defendants’ counsel have been guilty of any negligence or lack of diligence in preparing this case for a hearing here. We have looked into the record on file in the office of the clerk of this court sufficiently to become satisfied that the case is one of unusual importance to the parties. The
It is the claim of the plaintiffs that the defendants have been duly and legally deposed and removed from their offices of minister, deacons and elders of said First Church in accordance with the established usages of the Christian Reformed Church, and that consequently they have no further right to control the property of said First Church, or to exercise the privileges and functions of their respective offices. On the other hand, defendants insist that they were duly elected, and never have been legally deposed from their respective offices, and that consequently they have the legal right to act as the governing body of said First Church and to conduct worship therein, and to perform the duties of their respective offices.
The vital question is whether or not defendants have been legally deposed from their respective offices in accordance with the laws and usages of said Christian Reformed Church. The learned circuit judge who heard the case filed a lengthy opinion therein sustaining the claim of the plaintiffs, and granted the relief prayed for by them. An appeal bond in the sum of $3,000 was approved and filed.
We are unable to say that substantial justice will be
The case is not an old one, and the questions involved are of such importance to the parties in interest as to warrant a thorough preparation for its argument and submission. This cause should, by defendants, under the rules of court, be seasonably placed in condition for hearing at the next term of this court, and in default of so doing counsel for plaintiffs may renew their motion to dismiss the appeal. Under the circumstances this motion is denied, but without costs to either party.