164 Mich. 467 | Mich. | 1911
I am of the opinion that a majority of the five judges who sat in this case may settle the formal decree whether others than those who sat may participate or not, which we do not decide, and whether the entry of a formal decree is more than a ministerial matter, if essential at all under article 6, § 10, Const. 1850 (article 7, § 7, of the Constitution of 1909), which we need not decide. This court was made a tribunal of eight justices by Act No. 250, Pub. Acts 1903. Previous to that time there were five, of whom three constituted a quorum (1 Comp. Laws, § 185), and two being a majority of the quorum their concurrence in an opinion was an adjudication. See 11 Cyc. p. 759. Three of five judges have sat in this court many times, notably during the long illness of the late Mr. Justice Long. We append a list of some of said cases: Pokrefky v. Detroit Firemen's Fund Ass'n, 131 Mich. 40 (90 N. W. 689); In re Osborn, 131 Mich. 118 (90 N. W. 1029); Briggs v. McKinley, 131 Mich. 154 (91 N. W. 156); Carpenter v. Wood, 131 Mich. 314 (91 N. W. 162); Barber v. Eberle’s Estate, 131 Mich. 317 (91 N. W. 123); White v. Schaberg, 131 Mich. 319 (91 N. W. 168); De Mary v. Burtenshaw’s Estate, 131 Mich. 326 (91 N. W. 647); In re Angell, 131 Mich. 345 (91 N. W. 611). In the case of Chase v. Boughton, 93 Mich. 285 (54 N. W. 44), one of three dissented, yet the principles there laiddown seem to have been considered stare decisis, the case having been cited in George v. Electric Light Co., 105 Mich. 5 (62 N. W. 985); Hall v. Nester, 122 Mich. 146 (80 N. W. 982); Perry v. Reed, 147 Mich. 147 (110 N. W. 529); and Fuller v. Bilz, 161 Mich. 589 (126 N. W. 712). By these provisions of the statute five now constitute a quorum, and when three of the five concur in an opinion it disposes of the case, and judgment
The settling of a decree is apparently considered so far ministerial that it is usually done by a single judge, viz., the writer of the opinion, and is expected to follow the opinion. He may or may not call in one or more of those who sat, but in any case where it is proposed to change the opinion, or disregard its provisions, a rehearing, formal or informal, before a quorum, is deemed necessary.
The statute gives the right to a rehearing only when the five sitting justices do not all concur in the opinion:
“Whenever there shall be filed a dissenting opinion in a case heard by a quorum of five judges only, the parties therein shall have a right to a rehearing before the entire bench upon making a proper application therefor.” Act 250, Pub. Acts 1903.
Were the rule as contended for by counsel asking the rehearing, a sudden death of a judge might make many rehearings necessary. The motion should be denied.
