219 N.W. 650 | Mich. | 1928
This is a petition for writ of mandamus to compel the defendant to set aside an order made by him in the Wayne county circuit court, dismissing plaintiff's declaration and denying him leave to amend.
Plaintiff brought an action of ejectment. The defendant therein made a motion to dismiss the declaration because it did not have attached thereto a statement of title as required by section 13184, 3 Comp. Laws 1915. After argument, the court granted the motion. Plaintiff moved orally to amend the declaration, but made no profert of amendment. His counsel then stated that his claim of title was through Charles L. Lapham and Julia Lapham, parents of plaintiff. Counsel for the defendant suggested to the court and opposing counsel that the title claimed by plaintiff had been litigated in a former chancery suit brought by plaintiff against his mother in the Wayne county circuit court and also in the case ofLapham v. Lapham, reported in
On October 1, 1927, the court entered an order dismissing the declaration, and —
"It is further ordered that the plaintiff's verbal motion to amend said declaration be denied and the said cause be dismissed with costs of ten ($10) dollars to the defendant."
No further proceedings appear to have been taken until January 17, 1928, when petition for mandamus was filed in this court. The order of the court was a final judgment which disposed of the action, and for the review of which a writ of error would lie, and would be the proper remedy. Section 13736, 3 Comp. Laws 1915; Jewell v. Lamoreaux,
It is settled that a writ of mandamus will not be granted where a writ of error will afford adequate relief. City ofFlint v. Genesee Circuit Judge,
It is also fundamental that the writ of mandamus is not one of right, but is one of discretion. Klatt v. Wayne CircuitJudge,
Moreover, he has permitted expiration of the time for settlement of a bill of exceptions. Mandamus cannot be used as a storage reservoir of review.
The writ is denied, with costs to defendant.
NORTH, FELLOWS, WIEST, CLARK, McDONALD, POTTER, and SHARPE, JJ., concurred. *157