*1 409 YEDINAK v. YEDINAK. op the Court. Courts—Chancery-—Jurisdiction—Statutes.
1. Divorce — state, chancery The of circuit courts statutory. proceedings, purely divorce is 2. Divorce —Courts—Jurisdiction—Parties—Statutes. permitted controlling A the statutes obligations only rights to determine the and between parties, wife, and of third who husband the exclusion alleged only brought can in as where defendants conspired husband to transfer alimony claim to defraud to the wife’s with intent
her. 3. Divorce —Courts—Jurisdiction—Parties—Court Rules. grant not Court Rules of 1963 do General litigate than courts others 1963, 205, proceedings (GCR and wife in divorce husband 206, 721). Rules. 4. Divorce —Creditors—Lien—Court general on creditor Imposition of a lien favor of a confer divorce action would or wife both husband existing, a previously right not on creditor a adoption General at time of result not foreseen Court Rules of 1963.
[4] [1,11] 24 Am
[7,9,12]
[2]
24 Am
[5]
[3, 6, 8,10]
[8]
24 Am Jur
24
942.
Am33
Am
Am
Jur,
Jur
Jur
Am Jur
References
Jur
2d,
2d,
Liens §§
2d,
2d,
Divorce
Divorce
Jur
Divorce and
Divorce and
2d,
2d,
18-23.
Divorce
Divorce and
Separation
Separation
Points
Separation
Separation
Separation
Separation
in Headnotes
§§
§§
942, 946.
727, 728.
§
§§
241.
§§
§§
942.
943,
937, 938,
946.
Separate Opinion. J., and.Adams, T. C. Brennan, E. J. Courts—Parties—Adjudication—Intervention. 8. Divorce — may adjudicate Trial courts not in a divorce action the persons parties action, not to that and where two brothers of to divorce action asserted claims in that of defendant money divorce action loaned and services rendered to for being parties by without made intervention or in- defendant terpleader, adjudicate position trial the court was in no possible the claims the brothers or to circumvent of to the claims. defenses of Legislature — — — — 9. Divorce Courts Jurisdiction Inter- — — Equity. vention Statutes jurisdiction proceedings purely Circuit court over divorce is statutory legislature, courts, and it is not persons determine to what extent other than husband may proceedings, exceptions intervene divorce but wife recognized by Supreme this rule have been Court where con- spiracy parties one to the divorce action defraud of appears public good shown or where it so to the Court that the requires; hence, the statement v. Yedinak. strictly statutory proceedings is court in divorce not en- tirely why correct, nor is it clear a court should not exercise customary equity powers long as its divorce actions as in statutory doing provisions per- so there is no conflict taining to divorce. Judgment—Remand— 10. Divorce —Claims Third Parties — Property Settlement. judgment provisions Divorce that brothers of defendant proceedings payment were entitled to claims money performed loaned and services to assist defendant build a house sale that real estate should be stricken portion settlement where claimants from parties were not pro- had not intervened in the divorce ceeding properly court, were not and case before should be remanded redetermination settle- ment in present accordance with court rules as between the parties or as between them and claimant brothers in the properly joined event (GCB 721). Separate Opinion. Black, *3 Courts—Equity—Statutes—Court 11. Rules. Divorce — good why There is no reason circuit courts not exercise should general equity powers long actions, in divorce so as disregard statutory provisions pertaining do not divorce, adoption since the the Bevised Judicature Act of 1961 and the General Court Buies 1963. of of Parties—Property 12. Divorce — Settlement —Creditors. action, claiming Brothers in a divorce as creditors of defendant performed work on the house husband of defendant for of wife, joined necessary parties action, and be in the should judgment property provision and the settlement should of to bind them as well as and the husband framed wife. Appeal from of Division John Appeals, Court P. H. and Fitzgerald, J., Bowles, W. and J. Gillis J. JJ., Ottawa, (Raymond L.), Smith Sub- affirming No. (Calendar 12, Docket mitted October 1969. No. Decided 1970. 52,151.) April 13,
12 Mich reversed. App 383 Opinion op the Court. Mari Complaint by Joan against Philip J. Yedinak for divorce. for Judgment plaintiff. from Appeals Plaintiff to Court of appealed prop- distribution of erty provisions judgment. Affirmed. Plaintiff appeals. Reversed and remanded. Seheuerle,
Robert J. plaintiff. (R. Scholten & Fant Neal Stanton, of counsel), defendant. (for reversal). I cannot sign the
Dethmers, opinions of esteemed my brothers and Black Adams written in I this case. agree them that Appeals Court circuit court need some re- insofar as some versing provisions of the judgment of divorce settlement are con- relating cerned. I do not agree remand determination defendant’s brothers plaintiff wife and I defendant husband. would affirm property settlement
divorce as entered the circuit court, affirmed by the Court of forth in Appeals set substance in Mr. Justice Adams’ insofar as opinion, division be- tween plaintiff and defendant concerned, but de- lete therefrom numbered paragraphs (4) (3) which make the awards to defendant’s broth- money ers, for which, Justice Adams the court de- writes, termined that were to liens on brothers entitled parties’ property.
I do not agree with Mr. apparent Justice Black’s disapproval he making what terms the “rehash of former decisions” which Mr. is contained in Justice *4 Adams’ opinion. I deem an compilation excellent Michigan decisions until now at law, and least, to the effect that “the the circuit jurisdiction of courts in in this chancery state, proceed- in divorce Yedinak v. op the Court.
ings, statutory.” strictly uniformly is It was held long per- line of that cases that divorce were decrees by controlling only mitted statutes to determine rights obligations between the husband and parties, only wife, to the exclusion of third who can brought alleged be they in as defendants where it is that conspired with the husband to transfer property subject alimony to the wife’s claim for pertaining intent defraud her. The statutes proceedings permitted no this Court more, constantly permit so, said and thus declined to it. reasoning statutory This and these authorities, controlling were decisional, that considered end past this Court me. and still are ofOne in the mentioned line of cases above Byrne Byrne (1946), authorities is 315 Mich.441. opinion In his in the case instant Justice Adams Byrne controlling agree. writes “is here.” I It seems to me, however, that has followed he not it in paragraph concluding provides insofar as he remand and redetermination of settlement to include those if brothers joined parties.
Both Justices Black and Adams have written that good why no there is reason our circuit courts should powers not exercise their in divorce long doing, they disregard actions so in so do as, not provisions statutory pertaining to divorce. This question. begging to me to seems As held in opinion, the cases cited in Mr. Justice Adams’ what permitted sought is to be done here is not those statutory disregard is and, hence, done thereof. by my
Now it is
law
said
brothers that the
long
rule as
enunciated
the above-mentioned
line
Michigan
of a
decisions that the
longer
strictly statutory,
in a
divorce action
*5
383 the
of
Court.
suggested
has
that
that rule
been
correct.
It
adoption,
abrogated by
con-
under its
this Court’s
rule-making powers,
205,
of
GrCR
stitutional
and
permissive
pertaining
possibly
to
or neces-
sary joinder
parties
or
circumstances,
of
certain
procedures.
having
are then
do with
We
Rule
to
An-
connection Gervais v.
examine
invited to
napolis
(1966),
And the trial court’s then Justice Adams imposition upon of liens of the collection in favor of insure defendant’s brothers money judgments Oh, awarded to them. owing happy day when debtor creditors, spouse her or is or them sues sued right give rise a new-found for this would then previously existing name- creditors, not ly, or husband on to have lien by men- created wife both! A wonder is thus scarcely could have been which tioned court rules adoption. If defend- foreseen at the time of their alleged rights arising an out of brothers have ant’s v. Yedinak. Opinion op the Court. agreement pay oral Mm to an them, adequate judgment against remedy at law to secure a Ashbaugh him. In 300 Mich v. Sinclair impress equi- held an this Court by implication real table lien estate cannot arise adequate remedy party having and that a an at law equitable is not lien. entitled *6 pleadings It said that while the make no men- alleged rights tion of the of defendant’s brothers, parties, by counsel for the statements made in court questions during put per- trial and to witnesses, subject mitted the to become one for the court’s de- termination. In Maslen v. Anderson Mich 477, it was said and held that cannot by confer over matter, consent, upon a tribunal from which the law has withheld it. quotes
Justice Adams
from
What this court has all held is that beyond pro- of a court of divorce ceedings grant to others than the proceedings husband and wife because statutory strictly governing and the statutes divorce provide agree willing I do not for it. am not that longer theory on the this that is no correct that adoption, prop- through Court, the device of rule has amending erly engaged legislative in the function statutory pro- strictly so that these statutes Opinion by Adams, pre- equity may ceedings do court in now what it viously under the statutes as could not do old this amended them. existed before Court par- joinder generally, It will be observed, appropriate which their re- situations in ties is spective obligations rights out of the arise same or like circum- occurrence contract, transaction, question fact is common stances, and law (See all. mentioned rules and to the claims of them annotations.) alleged any, rights, if of de- Here the agreement out an oral fendant’s brothers arise pay and duties of defendant to them. respect other, each defendant proper subjects which for consideration are the statutes, the court, determination under marriage proceedings spring cove- from relationship in and to which defendant’s nants and part Hence, had whatsoever. brothers joinder cause is unthink- reason of them this also, able. and remanded the circuit court
Reversed *7 entry of of divorce consistent with opinion. plaintiff. Costs JJ., M. and G-. T. T. Kavanagh, Kavanagh,
Kelly, concurred with J. Dethmers, (for reversal).
Adams, J.
I parties for The were mar- sued divorce. Plaintiff May was sole 1956. Defendant ried then marriage, parcel After the owner real estate. placed the names was They in mo- resided á the entireties. as tenants thq premises. Four thousand dollars bile home on Yedinak Opinion by Adams, for was borrowed tbe of a purchase pre-cut house. Plaintiff $2,500. contributed and defendant $300
Labor for the home was constructing provided by and friends. Defendant defendant, brothers, he contended borrowed from his $2,500 brother, Yedinak, William marriage after May plaintiff. Plaintiff no asserted such a knowledge loan. Defendant Yedinak admitted William there was only an oral at agreement repayment some future date. No payments made and no were demand was made for before institution repayment of the divorce action. Plaintiff contended she first learned of claimed debt two months prior to trial. Defendant and William Yedinak contended she knew the from debt about the the $2,500 time was borrowed.
The trial court found that William Yedinak was entitled to a lien on the real $2,500 estate for tha,t such lien should be sale paid upon ultimate of it.
George Yedinak, another brother defendant, performed much of on the labor He the house. acted as foreman. He put basement footings, laid blocks, installed the furnace, wiring, plumbing, helped frame the house. Defendant contended that he agreed Yedinak a pay George “reasonable amount of money” for his efforts. con- Plaintiff tended she had no knowledge of an agreement. was agreement oral. Yedinak George testified he never made demand for payment until two months prior to trial. No payments were ever made. He a claim submitted There $1,610. evidence the others who worked on project made claims or were paid their labor.
The trial court determined that George was entitled to a lien on the for $1,600 and that such lien should be satisfied upon sale of the *8 real estate. by Adams, J. parties, to the real estate court awarded
The in com- tenants interests, one-half in undivided upon provision it be sold with the further mon, upon age reaching 18 or youngest child remarriage. plaintiff’s to the brothers awards The proceeds sale. Plain- paid from the were to be Appeals that Court 387). appealed of (12 to the Court tiff App judge We Mich the trial affirmed 790). (381 granted Mich leave pretrial complaint, statement, answer, Neither the any any pleading, of a mention contains other asserting brothers were the husband’s claim that any mention of property, nor is there liens any From husband’s brothers. indebtedness to the begin- at the wife’s counsel a statement made apparently in- ning had been counsel of the trial, prior far as to trial. As claims formed these were asserted time the claims the first shows, record proceedings at trial. the divorce Byrne Byrne was an ac- Mich ground separate of ex- on the maintenance tion for cruelty, repeated to hill later amended treme and filed a Defendant and board. divorce from bed ground of extreme for divorce on cross-bill cruelty. granted repeated an absolute Plaintiff was appeal, Upon appealed. it was divorce. Defendant adjudicating court erred the trial contended that arising liability a Dr. Dursum of defendant to joint Dursum had advanced Dr. out of a venture. money to do and, from time to time to defendant Michigan. Belding, at bank in had so, borrowed from bank was due to the there trial, At the time on approximately record The $1,620. Dr. Dursum liability legal appeal on the establish did not obligation. part plaintiff connection with judge es- all of the real trial awarded exception personalty of a truck with the tate *9 419 v. Opinion by Adams, J. given It ordered, how- to defendant. which was days decree 30 after the became that within ever, Belding pay plaintiff should to bank final, remaining of Dr. Dur- due on the note $1,620 sum of sum. (p 447):
This Court said appellant it is insisted that the trial “On behalf attempted adjudicate should not have to court question liability of to Dr. Dur- as to the defendant arising joint out of their venture. This claim sum to is meritorious. Whether is indebted defendant and, so, Dr. Dursum the amount indebted- such if ness, are them. matters to be determined between Testifying plaintiff’s as Dur- behalf, a Dr. witness nothing sum said far I am concerned is ‘As as there Byrne pay pay.’ for statement to may unless he wants to While this regarded ambiguous, somewhat as support nevertheless, it to lend tends defendant’s claim that the matter is not one that ad- should be judicated proceeding. in this The decree will be by provision striking requiring modified plaintiff bank.” out the payment Belding to make to the $1,620 (Emphasis added.) Byrne was decided unanimous court of seven justices participating controlling In here. Byrne, attempted judge this as in case, the trial adjudicate persons par- who were not ties to the divorce action. Neither of defendant’s party by brothers was in court as a or intervention impleader, proceeding. or other The court was position adjudicate nonparties in the claims of possible or to circumvent the defenses of such claims, as the CL (Stat § § §§ 557.53and 557.54 Ann 1957 Rev 26.183, 26.184), or the statute of limitations. case is proceedings. remanded for further Mich 409. Adams,
II remand, judge of the trial For the guidance the jurisdiction whether decide necessary to it is limited strictly a divorce court in as and wife husband with only statutes powers exercise the court may Perkins In Perkins court. a chancery 167): (p Court said Mich no inherent courts chancery “But debts to secure real estate liens against declare *10 Ben- person: the against established may which be have 22. And they 12 Mich (1863), v. Nichols nett per- to decree courts of equity as power no inherent Harr Pettier, Ch v. all: Pettier at alimony manent incident power, a statutory power 19. The (Mich) for divorce. applications over jurisdiction the regu- powers the entire statute prescribes on subject.” lations the Court Mich v. (1877),
In Baugh Baugh 62): (pp 61, said statutory, is purely over divorce
“The jurisdiction
fit to allow
has not seen
legislative authority
and the
in such suits. The
hut the
to intervene
parties
any
as
only persons recognized
wife are the
husband and
* *
*
parties.
to what ex-
to determine
“It is for the legislature
of intervention
the
public policy requires
power
tent
suits.
the
to divorce
any
be vested in
hut
might
why
some reasons
certainly
There are
whether their
represented,
children
hut
wise to have
permit-
would be furthered
ultimate prosperity
in their behalf between
to intervene
ting strangers
he con-
which would probably
is a
parents,
question
is taken to
any
before
very carefully
sidered
no right
In
meantime the courts
it.
permit
such intervention.”
to sanction any
v. Opinion by
Adams,
(1910),
In
Anderson
Peck Peck 66 Mich Peck v. Uhl (1887), 66 Mich 592. Such courts have inherent power permanent to decree ali- courts mony supra, citing all. Perkins, at Pel- Perkins (Mich) give Peltier, tier v. Harr Ch 19. Our statutes power grant alimony court wife for the support give of herself and minor children, and to against lien of the husband secure payment give same; hut do not payment to decree the sum to the upon reaching majority, children or to create payment a lien to secure the thereof.” In Judson v. Judson 171 Mich 185, suit brought support in this state for based granted by decree of divorce a Minnesota court. *11 (p 189): This Court said “It is the contention of her counsel under the that, comity provision of courts and the constitutional given that full faith and credit shall he in each State public judicial proceedings to the acts, records, every other ‘she is State, entitled have this hill supplemental pro- sustained as to the Minnesota ceedings, just granted if the divorce had been this State.’
324 Mich for discussion of the [*] See Newton 344, 352, v. Security holding in Flynn National Bank Maslen. Flynn (1962), Battle Creek 367 Mich (1949), 383 422
Opinion by Adams, J. repeatedly “It has been held that our circuit courts jurisdiction chancery no common-law in di- in vorce have by proceedings, authority but are limited conferred statute.” (1927),
In
“[T]he trial concluded that court di- special proceedings, statutory vorce suits are to limited litigating domestic relations between husband and parties, only can wife, to the exclusion of third who brought alleged be they in as defendants where it is conspired with husband to transfer plaintiff’s alimony for claim with appellant seeking intent to defraud her. Here party divorce case to recover from third her own money which she her husband claims secured and squandered party, on the third a matter outside the jurisdiction of court in a suit between husband and wife for divorce.”
In Rex v. Rex 331 Mich (p 409): divorce, Court said requires plaintiff place capital “The decree corporations stock which owns, he and from company which he derives his income, a trust to hold in trust his 3 2 of sons, whom are now years age, more than and the third is now near operate majority. The decree is to as such a appellant trust if instrument fails to execute the appellant same. The also decree orders to deliver to company policies the trust ing 2 life insurance amount- cross-plaintiff $25,000, to be held in trust for All and the sons. of said in the decree requiring up setting appellant’s trusts illegal and void and must be deleted. is cir- cases authority cumscribed statute and there is no such *12 v. 423 by Adams, J. granting has in a as been court in vested attempted. thus proceedings strictly in divorce “Jurisdiction payment statutory. direct cannot decree reaching majority, or even to children payment. minority, during lien for such a create provisions in divorce decree, a held that We have payment providing of a sum the consent, even majority, the children at and sums to wife’s mother void.” In 66 Mich this Court v. Peck (1887), Peck exception possible time had stated a for the first (p 591): above cases the rule as enunciated persons only have been where third “The cases permitted in an action to be made defendants conspired persons have those where such divorce are subject property the husband to transfer persons, complainant’s alimony claim for to such defraud out her interest with intent to her of her marital held reason Van v. Damon Wis same. Damon 510; 28 (1871), Paige, v. Duzer Van Duzer 366.” (1837), supple- a In 237 Mich Hass Hass (1927), set aside mental bill was filed in divorce action to a of certain as fraudulent the transfer as husband to his two brothers named de- defendant appeared at and defended fendants. The brothers affirmed of the trial the trial. This Court saying (p grant relief, court to 674): litigants; parties him “All of the were before had and of the he assignment he matter, and was of the belief that conspiracy was fraudulent and furtherance plaintiff to defraud three brothers between rights and her interest therein.” Security In Bank Battle Newton v. National complaint was filed 324 Mich Creek Opinion by Adams, *13 chancery challenging property settlement incorporated for the benefit of a son which had been years into a divorce decree entered 28 earlier in an plaintiff action in which was the defendant. This Court stated: proceed upon theory
“Plaintiff seems to the that the trust in this case was the result of the decree of divorce, and that such it inwas excess statutory powers. reality court’s The trust was in property the result of the settlement between the parties, right which had a to make, which * * * confirm, right (p 353) the court had a might plaintiff’s “There be some merit in if suit depended solely it on the decree. He makes no at- tempt voluntary agreement to excuse his for the settlement of agree- all his matters, in the signed by age, ment him. He was of full and makes incompetence no assertion of mental or duress. He up any adequate fails to set claim of fraud or mis- take. The decree as to matters which he repudiate now seeks to is a consent decree. And if ground necessary preclude additional were plaintiff obtaining from now relief from an equity satisfactorily he court, has not excused delay years of 28 invoking before (p 357) in his behalf.” Stephenson Stephenson
In v. 334Mich a divorce plaintiff denying action, this Court, while relief, did against consider the merits of her claim two added charged defendant who were along with her conspiring defendant husband of property rights. defraud Berg Berg (1953), In v. proceeding 336 Mich rehearing for a ground a divorce action on that defendant wife, who had been confined as crim- inally properly represented had insane, not been original 288): (p divorce, this Court said v. Yedinak. Opinion by Adams, J.
“It is claimed
the petitioner,
that
sister
is not
defendant,
It
proper party.
must be con
(Baugh
Baugh,
ceded that as a
rule
su
pra)
the husband
wife
are
only parties
be
in a divorce case. There
recognized
exceptions.
The prosecuting
attorney may
required
appear
a decree in
oppose
any divorce
in which
case
appears to the court
so
public good
requires.
1948, 552.45
Ann
(Stat
§
CL
25.121).
§
State
commissioner of revenue is ex
the public
officio
guardian
every patient committed to a
in
State
whom
stitution, upon
service of process is required
in any proceeding against any patient detained in a
State
Arm
institution.
CL
(Stat
§ 330.21b
1951 Cum Supp
14.811 [1]).
§
Third persons may
be made
defendants
an action for divorce where
*14
it is charged that such persons have conspired with
the husband with intent
to defraud the wife out of
her
in
Peck v. Peck
interest
property.
66
(1887),
Mich 586.”
Flynn v. Flynn (1962),
Finally, this Court divided 4r-3 on the question as to the au- of a thority in an judge divorce to enter for a decree incorporating property settlement creat- a life ing estate to parties the with remainders over to their children. Justice Otis M. Smith, writing the (p stated majority, 633): agree
“We
with the circuit
at
court,
least
to this
extent,
there
that
was no
authority
disposing
entireties property to
other
persons
parties
than
thereto who
were
and defendant
in the di-
vorce case. We construed the section of the statute
Allen v. Allen
cited
above
Cases from California, New Illinois, Louisiana, Oregon, England York, Texas, are Wisconsin, support cited in of the rule.
The rule is in 24 stated Am Jur 2d, Divorce Separation, p § 431, as 278, follows: v. by Adams, only sought a divorce, to secure not it “Where rights property adjudication of an have also to but generally property, held that it is division or a claiming persons having interest third proper to such are involved in the determin- a desires If the action. property, nec- ing in or her parties. indispensable it is held essary Indeed, bring may in party action the divorce either property involved, in persons in interested third adjudicated may di- in the claims their order that party to the divorce If neither vorce action. persons in the brings who claim an interest in third persons such third suit, in the involved rights. may to establish intervene themselves right person’s be heard extends However, such property, protection only in the his interest to the plaintiff’s right question to a of the and not to
divorce.” Separation, 24 Am Divorce and
See, also, 2d, Jur § 937, p (Stat §27.662), §612.10 referred Ann 1948,
CL
Flynn, supra,
opinion in
Justice Black in his
repealed
judicature
act.
It was
the revised
replaced by
Necessary Joinder of
GCR
205—
as construed
See, also,
1963, 206,
Parties.
GCR
Annapolis Homes, Inc.
Court
Gervais
Domestic
does not to divorce. Appeals and trial
The Court court are re- judgment versed. The of the for divorce heading “Property under Settlement,” are stricken. The case is remanded redetermination question settlement in accordance present parties 1963 GCR as between the or as George between them and William Yedinak and they joined properly event as parties. appellant. Costs to
T. E. C. J., concurred with Adams, J. Brennan, (for remand). perceive good I rea- Black, son say for rehash of former decisions as which, Security v. Newton Bank National Battle Creek (1949), Flynn Flynn (1962), 324 Mich v. 367 respecting Mich 625, left doubt the circuit court’s equities to determine in a divorce case as Judge Smith has done this case. With advent of unitary Revised Judicature Act and General good Court Rules of now no 1963, there reason why gen- our circuit courts should not exercise equity powers just long eral in divorce actions so disregard provisions per- statutory do not taining particularly to divorce. See GCR Annapolis and 721, and comment in v. Gervais Homes, Inc. Mich 678-680, purposeful changes which the new have ef- rules joinder parties. fected in the area ques- I would remand for redetermination tion of present settlement as between the George and also William Yedinak and Upon judge remand the trial should re- quire George brought William in as parties, necessary under 1963,205.1, GCR and should People Municipal Judge. Flint new see that Settlement” division of “Property the court’s is so couched toas bind William to the decretal George which, result upon is intended redetermination, the court. Costs if *17 final should abide the result. PEOPLE v. FLINT MUNICIPAL JUDGE. Writs—Superintending 1. Mandamus — Control. Superintending control now embraces the functions of the (GCR former writ [2]). of mandamus 711.3 Superintending — Magistrate — — 2. Mandamus Control Clear Duty. Superintending require magistrate control lies perform a magistrate function legal duty where the has a clear act. — Superintending — — 3. Mandamus Control Record Discre- — Legal Duty. tion Clear A superintending eourt neither substitutes its discretion magistrate directly for that of the nor does it act premises; rather it examines the record made before magistrate to determine whether there such an abuse of discretion as perform would amount to a failure legal duty, clear perform legal and if a failure to a clear duty found, superintending magistrate court orders the perform duty. Superintending Appeal 4. Mandamus — and Error— Control — New Action. A complaint superintending appeal control is not an from an action but is a whole new lawsuit. References for Points in Headnotes Jur, Jur, 258, 13-31. 35 Am Mandamus [1 4] §§ — [5, [7] 34 Am Mandamus §§ Jur, 35 Am Mandamus 249-308. §§