150 Mich. 256 | Mich. | 1907
Henry H. Liekly and Henry E. Tuttle are the only names signed to the affidavit for the writ of certiorari. They profess to represent a large number of interested persons, some of them named in the affidavit, who are not, except by recital, brought upon the record. No legal significance appears to be claimed for the allegation and none is perceived. The return denies that the plaintiffs are other than those above named. The record contains what is called a bill of exceptions of some 30 pages, the matter therein consisting of argument and colloquy occurring at the hearing, and errors are assigned as follows:
“The court erred in overruling their objections to the hearing of said cause on the date the same was heard.
“The court erred in overruling their motion for the amended return.
“ The court erred in rendering the judgment rendered dismissing the said writ of certiorari.
“The court erred in refusing to quash the said drain proceedings.”
The writ was returned on November 26th, and on that day notice was given that the cause would be brought to hearing on December 1st, the statute permitting a hearing “upon five days’ notice given to the opposite party.” 2 Comp. Laws, § 4346. On November 30th, counsel for plaintiffs moved for an amended return, specifying 65 particular amendments desired, many of them apparently
The second assignment of error is too general. It is said in the brief that an inspection of the petition and return will show that the points raised could not be properly presented without an amended return, and we are referred to the discussion which took place at the circuit. It is not pointed out that any record is omitted from the return. The brief directs attention to no specific amendment which should have been ordered. The contention that issues of fact may be framed upon the. affidavit and return and tried at the circuit is without merit.
The third and fourth assignments of error are not special and, if consideration of the case was limited by them, would deserve no further attention. In view of the decisions of this court in Berry v. Lowe, 10 Mich. 9; Burnham v. Van Gelder, 32 Mich. 490; Chicago, etc., R. Co. v. Campbell, 47 Mich. 265; Wilson v. McCrillies, 50 Mich. 347, and of apparent lack of uniformity in the practice, it is proper to say that errors assigned in the affidavit for the writ of certiorari will be considered sufficiently assigned for the purposes of a review by this court, upon writ of error, of a judgment rendered in the circuit court involving errors so assigned. We have examined the alleged errors relied upon by counsel for appellants in the brief. It appears that the petition for the drain is sufficient to confer jurisdiction; that plaintiffs were served with the citation issued by the probate court upon the application for appointment of commissioners; that they are two of those who declined to release the
Plaintiffs in certiorari assert that it was error, as matter of law, to find the commissioner to be disqualified. We are therefore required to consider whether, giving all of the provisions of the statute effect so far as it is reasonably possible to do so, we can say, as matter, of law, that the county drain commissioner was not disqualified.
We find no error and the judgment of the circuit court is affirmed.