Benson v. Wayne Circuit Judge

Michigan Supreme Court

Benson v. Wayne Circuit Judge

240 N.W. 43, 256 Mich. 436, 1932 Mich. LEXIS 710

CourtMichigan Supreme Court

DecidedOctober 20, 1931

DocketCalendar 34,685

StatusPublished

This text of 240 N.W. 43 (Benson v. Wayne Circuit Judge) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Benson v. Wayne Circuit Judge, 240 N.W. 43, 256 Mich. 436, 1932 Mich. LEXIS 710 (Mich. 1931).

Pincite

Opinion

*437 Fead, J.

In his return on appeal to circuit court, a justice of the peace failed to state or return any pleadings, oral or written, as required by 3 Comp. Laws 1929, § 16233. Plaintiff here, appellant there, knew at once of the omission, took no steps to procure an amended return under 3 Comp. Laws 1929, §§ 16236, 16237, but a month later, four days before the case was to be heard, moved the circuit court to permit pleadings to be filed. There was a dispute whether there had been any pleadings in justice’s court. On motion of the appellee, the court entered judgment dismissing the appeal for want of a proper return. Eight months later, plaintiff filed petition for writ of mandamus to compel the court to set aside the judgment. The order to show cause was issued two years ago and is now brought, on for hearing.

Plaintiff neglected to invoke the clear and definite remedy provided by statute by way of amended return. He has not been diligent in pursuing his action. There was no abuse of discretion, and no outstanding considerations of justice require issue of the discretionary writ of mandamus.

Writ denied, with costs.

Clark, C. J., and McDonald, Potter, Sharpe, North, Wiest, and Butzel, JJ., Concurred.

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*437 Fead, J.

In his return on appeal to circuit court, a justice of the peace failed to state or return any pleadings, oral or written, as required by 3 Comp. Laws 1929, § 16233. Plaintiff here, appellant there, knew at once of the omission, took no steps to procure an amended return under 3 Comp. Laws 1929, §§ 16236, 16237, but a month later, four days before the case was to be heard, moved the circuit court to permit pleadings to be filed. There was a dispute whether there had been any pleadings in justice’s court. On motion of the appellee, the court entered judgment dismissing the appeal for want of a proper return. Eight months later, plaintiff filed petition for writ of mandamus to compel the court to set aside the judgment. The order to show cause was issued two years ago and is now brought, on for hearing.

Plaintiff neglected to invoke the clear and definite remedy provided by statute by way of amended return. He has not been diligent in pursuing his action. There was no abuse of discretion, and no outstanding considerations of justice require issue of the discretionary writ of mandamus.

Writ denied, with costs.

Clark, C. J., and McDonald, Potter, Sharpe, North, Wiest, and Butzel, JJ., Concurred.

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Bluebook (online)

240 N.W. 43, 256 Mich. 436, 1932 Mich. LEXIS 710, Counsel Stack Legal Research, https://law.counselstack.com/opinion/benson-v-wayne-circuit-judge-mich-1931.