105 Mich. 540 | Mich. | 1895
Relators are the owners of 160 acres of land. Upon 100 acres was a mortgage of $5,500, and upon the 60 acres one of about $2,000. They borrowed of one William Vincent $7,000 for the purpose of paying off these mortgages, securing this loan by a mortgage upon the same property. Sherwood agreed to pay the other $500 so as to leave Vincent’s mortgage the first lien. Relators claim that they agreed with Vincent that they might cut and remove sufficient timber to pay the remaining $500 due upon the mortgages. Vincent denies such an agreement, and claims that Mr. Sherwood told
It appears that a large amount of testimony was taken upon the various issues involved in these petitions, and the court found that no agreement to permit Sherwood to cut the timber was made between him and Vincent, and that Vincent had no knowledge of any such arrangement made between Sherwood, Hawley, and Temple, and that Temple had no authority to make such an arrangement. He further found that the chattel mortgage was given to indemnify Hawley against loss for the payment of the notes, and not for loss by misappropriating the proceeds from the sale of the timber, and failing to apply them as agreed. This appears to be an attempt to obtain a decision upon the merits in a chancery case by mandamus rather than by appeal. The facts are all found against the relators. If the evidence justifies the facts, the order of the court is right. Mandamus is not the proper remedy to review such an order. Appeal is the only proper remedy.
The issuance and retention of the injunction were within the discretion of the respondent, and, under the facts as he found them, he not only did not abuse his discretion, but was fully justified in both granting and retaining the injunction.
This case well illustrates both the inconvenience and the impropriety of the attempt to review such cases in this manner. The papers presented'for our examination, including the testimony, cover nearly 200 pages of typewritten matter.
The writ is denied, with costs.