105 Mich. 653 | Mich. | 1895
Bills were filed in the first two; cases
“1. That the said bill is not verified as required by law.
“2. That the proceedings taken in said cause and the relief prayed for in said bill áre mot warranted or authorized by law. .
“3. That the complainants have not, in and by their said bill, made or stated such a case as entitle® them, in a court of equity, to the relief therein prayed for.
“4. That it appears by the said bill that there are divers other persons who are necessary parties to the said bill, but who are not made parties thereto.”
The circuit judge held that, inasmuch as the affidavits were made long before the filing of the bills, it did not affirmatively appear that complainants were stockholders when the bills were filed; that the defect was jurisdictional; and dismissed tire bills. Complainants have appealed in both cases, and having some doubt as to whether an appeal lies, under Cady v. Manufacturing Co., 48 Mich. 133, have also obtained in each case an order to show cause why a mandamus should not issue compelling the circuit judge to vacate the order dismissing the bill and proceed with the cause.
The chapter under which the proceedings are brought has been since amended, expressly providing for an appeal, hence it is unnecessary to discuss the" question as to the proper mode of bringing the cases here.
The statute (3 How. Stat. § 4161d9) provides that to such bill shall also be annexed an affidavit of the complainant that the facts stated in the bill are true. It is not claimed that the averments in the bill are not ample. We are cited in support of the judgment to the holdings in the attachment cases, and to Bryan v. Smith, 10 Mich. 229; Ayres v. Gartner, 90 Id. 380; and N. Y. Baptist Union v. Atwell, 95 Id. 239. Attachment proceedings and summary proceedings to recover possession of lands are special and purely statutory. In Bryan v. Smith the complaint did not contain the essential averment that at the time of the commencement of the proceedings complainant was entitled to the possession of the premises. In Ayres v. Gartner it is true that it was said that the statutory requirement was mandatory, but express reference was made to the fact that a motion to dismiss had been made, an opportunity had been given to apply for leave to amend, and no request therefor had been had. In Harrison v. Harrison, 94 Mich. 559, however, it was held that the affidavit might be amended, and the case was remanded for that purpose. See, also, Holcomb v. Holcomb, 100 Mich. 421.
How. Stat. § 6824, provides that in all cases non-resident plaintiffs in justices’- courts shall give security for costs before process shall issue. Section 7296 provides that all original writs in which plaintiff is a non-resident shall, before service, be indorsed by a resident, who shall be liable for costs. As early as the case of Parks v. Goodwin, 1 Doug. 56, it was held that a writ of summons returnable before a justice would not be set asida, because of the omission of plaintiff, a non-resident, to give security for costs, provided that such security be given before a motion to set aside the writ is granted.
The court in the present case is not one of special or limited jurisdiction. The bill of complaint averred that
It is, however, urged that the statute under which these proceedings are instituted is unconstitutional in that it does not make all stockholders necessary parties to the bill, and contains no sufficient provision for notice to them. The proceeding is, however, one in behalf of all
. The writs must therefore issue as prayed, and the records will be remanded accordingly, with costs to complainants.
The decrees were made December 6, 1894, and Act No. 39, Laws of 1895, which provides for an appeal, took effect March 26, 1895.