136 Mich. 169 | Mich. | 1904
The testimony upon which this case was heard in the lower court was taken before a circuit court commissioner. From a decree in favor of complainant, defendant appeals to this court.
The testimony taken before the commissioner was not settled as required by Act No. 186, Pub. Acts 1895 (section 10188, 3 Comp. Laws), and a large number of books and exhibits which constituted a part of the testimony taken before the commissioner were not transmitted with said testimony. Because said testimony was not settled as required by said statute, and because said exhibits and books were not transmitted with the appeal, complainant moves to strike said testimony from the files in this court, and to dismiss said appeal. Defendant insists that said act is unconstitutional, and, if not, that, properly construed, it did not require the testimony in this case to be settled". He also moves for an order extending'the time to make and settle the case.
The act in question provides ‘ ‘ for the examination of witnesses in open court in causes in chancery, and for the settlement of the evidence taken upon such examination and hearing; and for the settlement of a case where the
Does the act require that testimony taken before a circuit court commissioner shall be settled by the judgó as a condition to a review upon that testimony in this court ? Prior to the passage of this act, it was not necessary to have such testimony settled by the judge, as is shown by section 552, 1 Comp. Laws. Has the act changed that practice ? That. depends upon the construction of this language:
“And provided further, that in all cases, and whether the same shall be so tried in open court, or the testimony shall have been taken by deposition or before a circuit court commissioner, either party shall be entitled to make and settle a case setting forth in substance all the evidence taken or read at the hearing, following as far as practicable the making of cases for review at law before the judge who tried the same, at such time and in such manner as is now provided by rule for the settlement of bills of exceptions in cases at law. And ouch case, so made and filed within sixty days after the entry of the final order or decree therein, shall be deemed and held to be the evidence therein for all purposes of review on appeal to the Supreme Court. * * * And upon the case so made and filed as herein authorized, an appeal may be taken to the Supreme Court by any of the parties to such suit; as in ordinary chancery causes.”
Is this language mandatory or permissive ? We think it permits, but does not require, testimony taken before a commissioner to be settled before the court as a condition
It results from these views that appellee’s motion to strike the testimony from the files and to dismiss the appeal must be denied, unless the failure to transmit the records and books is sufficient ground for granting the motion. We are clearly of the opinion that it is not. The remedy for that failure is to have them transmitted.
Nor do we think that the motion of appellant for an extension of time to settle the case should be granted. Under the construction we place upon this act, he had his choice of two methods. He could have the testimony settled by. the court, or transmitted by the register in chancery. He has chosen the latter of these two methods.' To permit him to change his choice now would occasion delay, which might be injurious to complainant’s interests.
Both motions will therefore be denied. No costs will be awarded.