202 Mich. 61 | Mich. | 1918
Dayton W. Closser recovered judgment in ejectment against relator August 2, 1913. The judgment was affirmed in this court October 2, 1914. Closser v. McBride, 182 Mich. 594. On May 1, 1917, relator applied for a new trial on payment of costs which motion the court denied. This proceeding is brought to set aside the order denying relator’s motion for a new trial, and to have an order entered granting the motion.
We quote from relator’s brief:
“The statute, 3 Comp. Laws, § 10981, provides for a new trial in ejectment as a matter of right within three years after judgment. See Clareview Park Improvement Co. v. Wayne Circuit Judge, 172 Mich. 172.
*62 “The three years begin to run from the date of affirmance in the Supreme Court. Boyce v. Osceola Circuit Judge, 79 Mich. 154.
“Under the old law there could be no question of relator’s right to a new trial. The judicature act took effect January 1, 1916, and before the expiration of the three years given relator under the old law for a new trial. The judicature act took effect also before the application for a new trial was. made.”
The circuit judge thought it governed this case.
Relator contends:
“1. That the judicature act is prospective in its application and does not affect relator’s right.
“2. That by express provisions of the judicature act relator’s rights are governed by the law in force at the time his right accrued,” citing Harrison v. Metz, 17 Mich. 377; Ludwig v. Stewart, 32 Mich. 27; McKisson v. Davenport, 83 Mich. 211; Stambaugh v. Snoblin, 32 Mich. 296; Hathaway v. Milling Co., 139 Mich. 708; McKenzie v. A. P. Cook Co., 113 Mich. 452.
Defendant claims that the right as a matter of course to a second trial in. ejectment was repealed by the judicature act (Act No. 314, Pub. Acts 1915, 3 Comp. Laws 1915, § 13197), section 30, chapter 29 of which reads:
“Except as hereinafter provided, new trials may be granted in ejectment cases for the same reasons, and in the same manner as in personal actions; but no new trial shall be granted as a matter of course.”
We quote from the brief:
“Statutes which relate only to the remedy, without creating, enlarging or destroying the right, operate on existing causes of action. Judd v. Judd, 125 Mich. 228; Lohrstorfer v. Lohrstorfer, 140 Mich. 551; Gibson v. Hibbard, 13 Mich. 214; C. H. Little Co. v. L. L. Hazen Co., 185 Mich. 316; Beebe v. Birkett, 108 Mich. 234; State Savings Bank of Detroit v. Matthews, 123 Mich. 56.”
An examination of each of these cases, will show them distinguishable from the instant case.
“If we compare the law as amended with it as it was before the amendment occurred, we will find it does not change the time of possession either of the mortgagor or of the mortgagee. It changes the form of the decree. It shortens the time after the suit is brought when sale may be made, but it adds a period of redemption after the sale which did not exist before. We do not think it can be said that there is any such material change in the relation of the mortgagor to the mortgagee, or to the rights of each, as to amount to an impairment of the obligation of contracts.”
Clearly this is a different case than the one before us. Immediately before the time the judicature act took effect plaintiff was entitled as of course to a new trial upon the payment of costs. If he had a meritorious case this was a valuable right which we think is saved by section 9, chapter 9, of the judicature act (3 Comp. Laws 1915, § 12319), which reads:
“All actions and rights shall be governed and determined according to the law under which the right accrued, in respect to the limitations of such actions or rights of entry.”
The circuit judge should have granted relator’s motion for a new trial. The writ of mandamus will issue as prayed, with costs to relator.
