*1 115 1961] v. Streeter. v. ROGOSKI STREETER. Depositions.
1. Continuance — jury for a of a sufficient within continuance which plaintiff to take to enable be introduced at proper, elapsed the trial was but when such time has no continuance be claimed. Change—Prejudice—Publicity—Will 2. Venue — Contest. Showing necessity change attempt made as to of venue before held, drawing jury insufficient, will contest at under evi- presented testatrix, practicing physician, dence left a large estate, there was attendant claimed to be proponent, guardian unfavorable to appointed that the court will, special ad litem to employed contest counsel was prosecuting attorney, to work with the and that it does not appear any prejudice there was animus or those concerned, being matter of of venue entitled to again appears consideration if it a fair-minded is not proceeds obtainable at time ease to trial. Change 3. Mandamus — of Venue. An order a motion for of venue will not be set in a proceeding unless the factual situation presented is such as to no raise reasonable as to the right to such relief. ’Speculation—Mandamus—Justice. i. Venue — speculation Resort not be may may had to as to what happen on the party trial of the case which a moves for a being necessary in mandamus legal right to show a clear of sueh motion the actual facts necessitate a justice. the interests of References for Points in Headnotes Jur, Jur, 12 Am 1] 2] 3, Continuances 28.§ 56 Am Venue 56. § Jur, 56 Am Venue § Rogo ski, Alexis Mandamus Powers, of Lunette I. de- last will and testament judge against Streeter, a ceased, assigned Muskegon, I. Halford grant of continu- *2 pending jury in- ance of venue in case and volving Temporary order hold- contest. entered will abeyance. April ing 25, trial 1961. 28, 1961, Submitted (Calendar 49,238.) No. denied Writs June pending proceeding. and cause for remanded further Opinions September filed 22, Cary, plaintiff.
Oscar E. Waer C. for John Prosecuting Harry Muskegon Knudsen, Attor- ney, for defendant. proceeding This has re- Per Curiam. litigation Muskegon pending in the coun-
sulted from ty validity circuit court with reference general of The Powers, will nature of Lunette I. deceased. litigation indicated in the decision such Estate, In re Mich 222. of this Powers Court instant was the Plaintiff circuit of the will in and the defendant try jury. judge assigned the case before was proponent, having trial, date been set for Counsel for might be moved for a for time as continuance such depositions taking necessary be of to enable the on the trial. A motion also sub- introduced was being claimed on mitted for a behalf of of publicity given proponent of because by newspapers, trial fair to the before otherwise, case county. had in could be propo- thereupon were denied, motions petition requir- nent filed ing this Court á orders why judge to show cause the defendant granting the continuance writ should issue granting sought to direct the motion v. Streeter. An venue. order was issued this Court reciting March 24,1961, date that no action under by with reference to the motion for Court required directing of venue the defendant show cause on or why at but time, April 4, 1961,
before an order should not be entered a con- length might required tinuance such permit taking, returning filing depositions plaintiff’s petition. referred to It provided was be should case abeyance pending held in the further this duly Court. Return to the order to show cause was pleadings made and the motion was submitted on the and briefs filed in the matter.
Proceeding assumption that a sufficient length taking of time had allow intervened to causing of the desired them to be duly in the circuit filed order was court, entered setting under date of 28, June 1961, *3 provision prior the the order with reference vacating to the trial of the and the case show plain- cause. It was further set forth therein that tiff’s for ofwrit mandamus to the of the motion of venue was denied, and the case was remanded to the circuit proceedings. court The order entered opinion indicated would be filed later with reference to the matters at issue. granted by The order to show cause was ground
Court on the that counsel for opportunity entitled to a reasonable to take the de- duly sired have and them returned and prior filed to the commencement of the trial. period elapsed, sufficient therefor has and no further purpose reasonably continuance for the can stated be claimed. As noted, order issued was based assumption, on that no further discussion there- necessary. of is length argued plaintiff at some have
Counsel change motion for venue in their brief that their granted court, the trial have been should directing. issue its writ so that this Court should newspapers emphasis on the claim that is laid Some county circulating published have plaintiff, given publicity case, unfavorable to the impartial jury a fair and that for such reason called to had. is also trial the Attention be supervisors county has fact that board of employment special counsel authorized the county attorney prosecuting with the of said work contesting probate Powers. will of Mrs. made have tended It is insisted that the references to create op- impression county are officials probating posed that the action will, county appointing judges might guardian said will be con- ad litem to contest opinion the as an indication that in their will strued should not be allowed. following
Apparently
will contest
cus-
tomary pattern of such cases. The estate involved
quite large,
in her
the testatrix
lifetime was
physician,
quite naturally
practicing
some meas-
expected.
ure of
should be
examina-
Our
support
tion of the
ments of
made in
of the aver-
plaintiff’s petition
suggest
does
any
prejudice
animus or
of those con-
any degree cerned
been
with
cer-
has
established
tainty.
a conclusion,
We cannot base
on the factual
jury
showing here
cannot
made, fair-minded
Muskegon county
obtained in
that such
permit
will
bers
itself to be
what its mem-
influenced
newspaper
have
in a
or have
read
heard
*4
in
stated
conversation.
circum-
casual
Under such
proceed
stances the
trial and if
case should
to
then
appears
of the character to which the
parties
question
are
cannot be obtained the
entitled
v. Streeter.
again,
of a
be raised
based
existing.
situation then
Questions of this character have been
this
before
prior litigation
general
in
Court
and the
seems
rule
recognized
to be well
that an order
a motion
of venue will
be set
a man
pre
damus
unless the factual situation
question
sented is such as to raise no reasonable
right
Rapids
to such relief.
In
& In
Grand
Cheboygan
Judge,
diana R. Co. v.
Circuit
159 Mich
210,
on the
declined
frame an
issue
be tried
alleged prejudice against
company
county.
Cheboygan
railroad
In Walz
Co.,
v. Peninsular Fire Ins.
were back *5 364 120 prosecution in the an effort to hinder civil
of the companies pressed the were hard cases, bribery charged, had been et cetera. evidence, Defendant supporting the to moved reports copies press by the of the of motion such plain- proceedings, a of list of stockholders criminal tiff chiefly city, affidavits of the residents bank, asserting that fair trial of counsel could not be had in the others county. There a counter was city. showing the The of residents of affidavits throughout time motion denied. From to suggestion sides on both the trial at the number of counsel spectators of in attendance at the daily average attend- in was noted the record. 9.” ance made was observations in case was It decision said be noted that the rehearing Fire Ins. in Walz v. Peninsular affirmedon Co., Mich nature, others like cited,
We think cases uniformly position indicate the that this Court has sought from an order taken in cases where relief is of a trial court a motion speculation to venue. Resort to what be had may may happen the trial legal motion clear case which such right is made. estab- of the motion must satisfactory showing facts actual lished in the interests venue necessitate requirement principle justice. sound Such recognized generally rule with the accordance require governing granting of mandamus issuance a motion of the character involved proceeding. heretofore en- In order the instant tered the writ of mandamus was for the support thereof made denied because right plaintiff’s to the extraordi- not establish did sought. nary writ Bogoski v. Streeter. J., C. Talbot Dethmers, Carr, Kelly, Smith, concurred. JJ.,
Edwards, Kavanagh, Souris, (concurring). Our of June 28, Black, finally manifestly dilatory petition 1961,*denied continuance and *6 By venue. our order to misfortunate show cause, upon petition propo 21, 1961, issued March request below, nent’s for continuance “until some day subsequent May 28, has 1961,” exceeded his sanguine expectation. most
In these collected I circumstances see no need for relating changes consideration of mooted rules venue. Whether will or will not be able to some new find cause for of venue is speculation, outright and that we should leave for justiciable pressing more work of nature. (Attorney In the words of Mr. Justice Wiest Gen Bridge eral, Eaves, ex rel. v. State Commission, 277 386), upon 373, Mich I stand our order of June 28th join expatiation.” “and, do not in the therefore, circuit court of terminated It An opinion covering the matter damus to [*] “In this cause the trial until further and set of the ease is ordered further aside, prior plaintiff's order to show cause is and the vacated. denied; county order of of aof set forth herein will be filed later.” and the case is remanded to the motion for a this Court proceedings holding for a writ of man- premises abeyance therein.