People ex rel. Clark v. Circuit Judge of Huron Circuit

40 Mich. 166 | Mich. | 1879

Cooley, J.

This is an application for a mandamus. It appears that many years since, Frederick S. Ayres and others filed their bill in the Huron circuit in chancery for the specific performance by the defendants, among whom were the relators in this case, of a contract for the conveyance of lands, and that pending the suit defendants were enjoined from cutting timber on the lands. In May, 1871, the court of chancery made decree as prayed by complainants. The decree assumed that a portion of the price of the lands had not been paid by complainants, and a reference was ordered to ascertain the amount, and complainants were decreed to pay the same after deducting their taxed costs. Whether the amount was ever determined we are not informed, but it appears that the decree was duly enrolled, and we hear of no further controversy until in September, 1876, when complainants petitioned the circuit judge at chambers for leave to file a supplemental bill in the nature of a bill of review. The reasons given for the application were, first, that complainants had recently discovered that defendants could not make a title to a part of the land embraced in the decree, and therefore it would be unjust to compel complainants to pay for the same; and second, that complainants had recently discovered that while the original suit was pending defendants cut timber on the lands in violation of the injunction. It is assumed in this application that complainants had never performed the decree on their part. The circuit judge made ex parte the order applied for, and the bill was filed. This is an application for mandamus to compel the circuit court in chancery to vacate the order so made by the circuit judge.

The order of the judge was plainly one that could not be made at chambers. Only the court on due notice is authorized to permit a bill of review to be filed. Chancery Eule 101. This disposes of the case, and the writ must issue as prayed.

It is proper to add, however, that complainants made out no case for a bill of review, and the bill filed is not properly what it purports to be. It simply recites the original bill and decree, and then adds that complainants have discovered that defendants cannot make a good title to some of the lands, and that they cut timber on the lands in defiance of the process of the court. The proceedings in the former case are not recited, and no particulars are given to show that complainants have equities. If the general averments in what is called a supplemental bill in the nature of a bill of review are correct, they show only a case of inexcusable negligence on the part of complainants in looking after their own business, and they show nothing more.

The other Justices concurred.