216 N.W. 373 | Mich. | 1927
This bill was filed to determine and admeasure the dower rights of plaintiff in lands owned by defendants. Upon the hearing it developed, and practically without dispute, that plaintiff's husband lived and did business under different names; that under the name of Walter Derwichowski he held title in fee to the premises in question, and, representing himself to be a single man, alone conveyed the property to defendants. Such conveyance was executed under these circumstances: Plaintiff's husband had traded farm lands to defendants for their city property; they became dissatisfied, and, claiming that they had been defrauded, instituted an action in which acapias had issued and been served; a settlement was agreed upon by which each was to restore to the other the property received in the exchange; plaintiff's husband was unable to carry out his agreement because he was unable to repurchase the city property from those to whom he had sold it, and the agreement was modified by substituting the property in question in its place as the best thing that could be done. It also appeared that plaintiff had instituted divorce proceedings, in which she claimed an interest in the property and had filed notice lispendens before defendants received their deed.
After the case had been heard and the trial judge had announced his decision, but before the signing of the decree, defendants employed their present counsel and a motion for rehearing was made accompanied by a sworn amended answer. Defendants' present counsel conceded in the court below, and do here, that upon the record as made and the theory upon which the case was tried, the trial judge correctly decided the *121 case, so it will be unnecessary to consider the correctness of his decision on the case as originally made. But it is insisted that upon testimony which can be produced and the theory which they now advance, defendants should prevail. It will, therefore, be necessary for us only to determine whether there should have been a rehearing. If not, there must be an affirmance.
Motions for rehearing unless for an erroneous conclusion on the original hearing are addressed to the sound discretion of the trial judge. In the interest of justice they may and should be granted (J. L. Hudson Co. v. No-Name Hat Co.,
Defendants' present counsel insist that the evidence which can be produced on a rehearing and which is outlined in affidavits, some of them by disinterested parties, would entitle defendants to relief under section 11573, 3 Comp. Laws 1915. It is quite doubtful if the showing made would sustain such claim; but it is quite patent that to entitle defendants to relief under that section there must be at least some modification of their testimony given on the original hearing. It is quite doubtful if the affidavits establish a trust relation even if we overlook the statute of uses and trusts, and it is quite clear that defendants' testimony given on the original hearing has no such tendency. *122 The question presented to the trial judge required the exercise of judicial discretion. We cannot on this record say that it has not been fairly exercised.
Decree affirmed, with costs of this court.
SHARPE, C.J., and BIRD, NORTH, FLANNIGAN, WIEST, CLARK, and McDONALD, JJ., concurred.
