155 Mich. 350 | Mich. | 1909
Lead Opinion
The proceedings in this case were instituted to, enforce a demand against a water craft, pursuant to the provisions of chapter 298 of the Complied Laws, sections 10788-10836, inclusive. At the conclusion of claimant’s proofs, the circuit judge dismissed the proceedings and awarded judgment in favor of defendant for the reason that claimant had failed to prove that at the time of giving notice of his claim the owners of the craft were indebted to the contractor. Claimant applies to this court for the writ of certiorari to review this judgment.
We are of the opinion that the applicant has misconceived its remedy. The judgment is clearly a final judgment upon the merits, and the remedy by appeal provided by the statute in such case is adequate. Sections 10823-10827, inclusive. From an early day it has been held by t.hifl court that the remedy by certiorari should not be favored, and would generally be refused when another
The application is denied.
Concurrence Opinion
I concur in the result reached by the Chief Justice, but I do not concur in the view that certiorari would lie at an earlier stage in the proceedings. It is true that after a dismissal of this case, upon the ground that the amount involved was not sufficient to confer jurisdiction, the question was reviewed upon certiorari and the “judgment” reversed, and a “new trial ordered.” No objection was taken to the regularity of the proceeding, and the question was not discussed.
The practice cannot therefore be considered established by that case. We have said in the case of People’s Ice Co. v. Steamer Excelsior, 43 Mich. 336, a case which arose under this law, that— '
“The proceedings are special and different in some respects from either legal or equitable cases. Where there is no common-law form of review, or where if there is one it is not resorted to, the conditions and form of appeal depend entirely upon statute,' and cannot be changed or aided by any judicial action.”
If we could consider this either an equity suit or an. action at law, certiorari would not lie, except if an action at law it might be resorted to under Act No. 310, Pub. Acts 1905. It may be said that this is an act in derogation of the common law, and one — like its prototype in chancery causes — which fosters dilatory proceeding, — a thing that is deprecated by our Constitution and laws,— without any considerable meritorious compensation. It should be strictly construed, and not applied to cases not * ‘ actions at law ” to which by its express terms it is limited. This is not an action at law, “but a special proceeding differing from an action at law.” People’s Ice Co. v. Steamer Excelsior, supra. A decision of this question is not necessary in the disposition of this cause,
Writ denied.