17 Mich. 235 | Mich. | 1868
Campan having obtained a judgment in the Wayne Circuit Court iu a case of proceedings on appeal to obtain the possession of lands under the landlord and tenant act, the court, at a subsequent term, set aside the judgment, and ordered restitution of the premises which had been obtained a few days before upon process issued on the judgment. This action is brought before us on certiorari.
We have heretofore held that the power of the court to set aside a judgment is not confined in. its exercise to the same term at which the judgment was rendered.— Van Rensselaer v. Whiting, 12 Mich. 449. It is also a well settled principle that an appellate court can not review the discretionary act of another tribunal acting within its jurisdiction, and therefore we can not inquire into the propriety of the order setting aside the judgment. If we could do so, it would not change our decision.
We also think the court was authorized to restore possession of the premises seized under the writ which was quashed. As a possessory writ, under which no new rights had accrued, there could be no propriety in allowing it to work a wrong without remedy, and it is a sound rule of practice that where the process of the court has caused an abuse, and no innocent party has obtained rights under it, the court, in setting aside the process, may restore what it has wrongly seized. The authorities cited by counsel sustain this view, which seems necessary to prevent a failure of justice.
The proceedings must be affirmed, with costs. An application was made for double costs, but, as the question concerning the power to order a restoration of property is a new one in this state, we can not regard the appeal as legally frivolous, and wo are hardly at liberty to inquire into the general merits.
