Boynton v. Kent Circuit Judge

Michigan Supreme Court

Boynton v. Kent Circuit Judge

128 N.W. 738, 163 Mich. 500, 1910 Mich. LEXIS 638

CourtMichigan Supreme Court

DecidedDecember 7, 1910

DocketCalendar No. 24,270

StatusPublished

Cited by2 cases

This text of 128 N.W. 738 (Boynton v. Kent 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

Boynton v. Kent Circuit Judge, 128 N.W. 738, 163 Mich. 500, 1910 Mich. LEXIS 638 (Mich. 1910).

Pincite

Opinion

Hooker, J.

The relator was defendant in an action upon a promissory note. His appearance was duly entered, and his default for not pleading was properly and seasonably entered. A motion to set aside the default based on his affidavit was denied, and this application is made for a mandamus to compel the circuit judge to vacate and set aside said order, and to make an order vacating the default.

The court heard this application upon affidavits. The plaintiff’s affidavit was the usual formal one, throwing no light upon the questions of fact or law in dispute. Defendant’s affidavit shows how the claim arose, etc., and none of these circumstances were denied. The court exercised his judgment in the matter, believing the plaintiff and disbelieving the defendant, as he expressly states. Where, as in this case, the action of the trial court is the exercise of honest judgment on a question of fact, he cannot be chargeable with abuse of discretion. The case is similar to Carton v. Day, 157 Mich. 48 (121 N. W. 295). The writ is denied.

Moore, McAlvay, Brooke, and Blair, JJ., concurred.

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Hooker, J.

The relator was defendant in an action upon a promissory note. His appearance was duly entered, and his default for not pleading was properly and seasonably entered. A motion to set aside the default based on his affidavit was denied, and this application is made for a mandamus to compel the circuit judge to vacate and set aside said order, and to make an order vacating the default.

The court heard this application upon affidavits. The plaintiff’s affidavit was the usual formal one, throwing no light upon the questions of fact or law in dispute. Defendant’s affidavit shows how the claim arose, etc., and none of these circumstances were denied. The court exercised his judgment in the matter, believing the plaintiff and disbelieving the defendant, as he expressly states. Where, as in this case, the action of the trial court is the exercise of honest judgment on a question of fact, he cannot be chargeable with abuse of discretion. The case is similar to Carton v. Day, 157 Mich. 48 (121 N. W. 295). The writ is denied.

Moore, McAlvay, Brooke, and Blair, JJ., concurred.

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Bluebook (online)

128 N.W. 738, 163 Mich. 500, 1910 Mich. LEXIS 638, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boynton-v-kent-circuit-judge-mich-1910.

Opinion

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