Russell v. Wayne Circuit Judge

136 Mich. 624 | Mich. | 1904

Grant, J.

The relator had a suit pending in the circuit court for the county „of Wayne against the Penberthy Injector Company and S. Olin Johnson. The action was based upon the negligence of the defendants, through which it is claimed that relator’s decedent lost his life. Relator filed a petition with the respondent, charging the defendant Johnson with contempt of court in attempting to intimidate some of the witnesses, or proposed witnesses, in the case. The petition was based wholly upon information and belief, and was accompanied by affidavits. The order to show cause was issued, and answer of Mr. Johnson duly filed. The relator demanded interrogatories. The respondent appointed Mr. Allan H. Frazer, ex-prosecuting attorney and an officer of the court, to examine into the case and file interrogatories. Mr. S. E. Engle, on behalf of the relator, presented to the court 78 interrogatories. Mr. Frazer examined the affidavits, and prepared 26 interrogatories, covering specifically the charges made by the affidavits. Mr. Johnson answered all these interrogatories. The court declined to examine the interrogatories on behalf of the relator, and accepted those proposed by Mr. Frazer. The relator, by this proceeding, seeks to compel the respondent to consider and allow the interrogatories propounded by him.

The respondent returns that the proceeding was treated by the relator as a criminal, not a civil, one. The relator neither in his petition nor in any affidavits claimed damages as a result of the contempt. The intimidation of witnesses is naturally a criminal matter, — one in which the damages are to the public and the courts as well as to litigants.

The affidavits, not the petition, conferred jurisdiction upon the court. Without the affidavits the proceeding would have been quashed. In re Wood, 82 Mich. 82 (45 N. W. 1113). Allegations in the petition not supported by the affidavits will be ignored. When one charges another with the serious crime of interfering with the due course of justice by corrupting or intimidating witnesses, he must have positive evidence to present to the court upon which to base the charge. Rumors will not do. Allegations upon information and belief are not sufficient to put the party charged upon answer.

This proceeding was brought under 3 Comp. Laws, § 10891. The charges made by the affidavits were before the court. The court ordered an attorney to prepare interrogatories based upon those affidavits. The attorney did so, and reported them to the court. The court examined the. affidavits and interrogatories, and determined that those presented by Mr. Frazer were sufficient. The practice was proper, and a full compliance with the statute. We have examined the interrogatories, both those proposed and those submitted and answered. We think those submitted covered the entire ground.

The mandamus is denied.

Moore, C. J., and Hooker, J., concurred. Carpenter and Montgomery, JJ., took no part in the decision.