152 Mich. 582 | Mich. | 1908
The Detroit Trust Company, trustee in a mortgage executed by the defendant the Detroit, Flint & Saginaw Railway company, filed its bill in the circuit court for the county of Genesee, in chancery, on November 20, 1906, to foreclose the mortgage. On the same day, by an order of that court, the Detroit Trust Company was appointed receiver for the railway company, filed its bond, and assumed the duties of the position. The Prather Engineering Company was made a party defendant in the foreclosure suit, with the allegation that it had, or claimed to have, some interest in the property of the railway company by reason of the filing of a claim for lien. On the 8th day of the succeeding January, the Prather Engineering Company, with notice and knowledge of the beginning of the foreclosure proceedings, having been served with a copy of the bill of complaint, filed its bill in the circuit court for the county of Saginaw, in chancery, asking for the enforcement of a lien asserted under the statute (3 Comp. Laws, chap. 296), as amended. The trust company and the railway company, which were
“And it appearing that the Supreme Court of this State has denied the application of the complainants as relators for a writ of mandamus directed to Charles H. Wisner, circuit judge of the county of Genesee, commanding him to vacate his order denying the application of said complainants and relators for leave to make Detroit Trust Company, receiver.of the property of Detroit, Flint & Saginaw Railway, as such receiver, a party to this cause. * * * It is hereby ordered that said motion of complainants be and the same is hereby denied, and the complainants, by their solicitors, in open court, admitting the material facts set up in the plea of defendants, the Detroit, Flint & Saginaw Railway and the Detroit Trust Company, to be true, and electing not to take issue upon said plea, it is hereby ordered that the complainants’ bill of complaint be and the same hereby is dismissed,” etc.
This is an appeal by the Prather Engineering Company from that decree.
If the bill is filed in season, an amendment bringing in a proper party may be made after the year has expired (Casserly v. Wayne Circuit Judge, 124 Mich. 157), and an objection that the bill is not verified may be met by amendment after the expiration of the year (Daschke v. Schellenberg, 125 Mich. 216). Complainant filed its bill, but did not make the receiver a party defendant. It has been held that objection to a petition for the enforcement of a mechanic’s lien, which does not implead necessary parties, may be taken in the answer thereto or at the hearing (Kerns v. Flynn, 51 Mich. 573); that the objection that a receiver is made a party without leave may
The decree is affirmed, with costs.