154 Mich. 485 | Mich. | 1908
This is an application for a mandamus to require the respondent to proceed to punish George H. Purchase and Elmer C. Glenn for contempt of court. The alleged contempt was a failure to pay over the amount of a certain decree pronounced by the circuit court in chancery in a case in which the relator in this proceeding
“And thereupon it is ordered and directed, and the court hereby orders and directs said Purchase and Glenn severally or jointly to pay said $7,610;31 trust funds to the register of this court within 10 days from this date, and orders said register on receipt of said funds to deposit them to the credit of this cause in the First National Bank of Ann Arbor, there to await the further order of this court.”
Upon the application for an order to commit for contempt for failure to comply with the provisions of this decree, the circuit judge ruled that the case was one in which an execution might by law issue for the collection of the debt, and that in view of the provisions of section 10891, 3 Comp. Laws, the remedy of proceedings as for contempt is not open.
The petitioner relies upon Carnahan v. Carnahan,
But it is said that there was a finding here by the circuit judge that this fund remained in the hands of the defendants Purchase and Glenn. The return indicates, and the whole record discloses, that the sense of this finding was that Purchase and Glenn had not accounted for the money, and that it was in that sense that it still remains in their hands. There is no claim that there was any showing that there was any specific money anywhere upon which it would be possible for either Glenn or Purchase to give a check or an assignment, or that they had control of any money at the time of the hearing in this case, except that it appeared that they were as to this fund trustees ex mala fides. We think something more than this was necessary to be shown to bring the case