210 Mich. 572 | Mich. | 1920
This is an application for writs of mandamus and prohibition to compel defendant to call in another judge to hear certain cases pending in the Iosco circuit court, and to prohibit defendant from sitting in them. The petition shows that on or about August 13, 1919, there were three cases pending in the Iosco circuit court against plaintiff. The plaintiffs in those cases were John H. Kilmaster, Jennie Dameraux, by guardian, and Frank and Martha Merkle. On August 28th plaintiff filed a motion to dismiss in each case. While these motions were pending,
“Sec. 3. Whenever any civil suit or proceeding shall be pending in any circuit court in this State, either' on the law or equity side of said court, in which the judge of said court shall be interested as a party, or as a member of any corporation which is a party to said suit, or has heretofore been consulted or employed as counsel in the subject-matter to be litigated in said suit, or in which for any other reason he would be excluded from sitting as judge at the trial thereof the same may be transferred to some other circuit court in the manner hereinafter provided, or the judge of the circuit court in which such suit is pending may icall in any other judge not disqualified to sit in such cause.” 3 Comp. Laws 1915, § 12342.
The real controversy centers around the construction which should be given to the last lines of the section which appear in italics. Plaintiff contends that defendant, under the showing made, abused his discretion in refusing to call in another judge. The defendant contends that it is a matter entirely within the discretion of defendant, and further that plaintiff has an adequate remedy at law, therefore, under the rule, neither mandamus nor prohibition will be entertained.
Assuming, for the purpose of the argument that defendant is disqualified to sit in the cases, it follows then that plaintiff’s remedy is to apply for a transfer
It clearly appearing that plaintiff has a remedy at law, both writs will be denied. Defendant will recover his costs in this court.