City of Detroit v. Goodman

Michigan Court of Appeals

City of Detroit v. Goodman

170 N.W.2d 478, 18 Mich. App. 106, 1969 Mich. App. LEXIS 1037

CourtMichigan Court of Appeals

DecidedJune 25, 1969

DocketDocket No. 4,937

StatusPublished

This text of 170 N.W.2d 478 (City of Detroit v. Goodman) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

City of Detroit v. Goodman, 170 N.W.2d 478, 18 Mich. App. 106, 1969 Mich. App. LEXIS 1037 (Mich. Ct. App. 1969).

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Opinions

McGregor, P. J.

Plaintiff became the owner of defendants’ property by way of condemnation, but defendants did not vacate the premises for six months and did not pay monthly rent pursuant to notice given by plaintiff shortly after the condemnation in June, 1962. Plaintiff filed an assumpsit action in the Detroit Common Pleas Court for use [108]*108and occupation of the premises; however, the court dismissed the action after argument, on defendants’ motion for directed verdict, reasoning that since defendants did not specifically agree to pay rent, plaintiff’s only remedy was by a writ of assistance to secure possession of the property. The Wayne county circuit court affirmed, stating that a writ of assistance in Recorder’s Court was the exclusive remedy. The relevant portion of the Detroit Charter, Title VIII, Chapter I, § 16, contains the following language:

“In case of resistance or refusal on the part of anyone to the council or its agents and servants entering upon and talcing possession of such private property for the use and purpose for which it was taken at any time after the amount of the compensation aforesaid is actually in the treasury ready to be paid to those entitled thereto, the council, by the corporation counsel, may apply to the court, and shall be entitled on making sufficient showing, to a writ of assistance to put the city in possession of the property.” (Emphasis added.)

The issue presented is whether a writ of assistance in Recorder’s Court was plaintiff’s exclusive remedy, and, therefore, the Common Pleas Court was without jurisdiction to consider the assumpsit action.

Our r.eply to that question is no. Plaintiff, as title holder of the condemned property, could file in assumpsit and on the common counts for use and occupation of the land. Our interpretation of the charter provision, specifically the word “may”, does not deem a writ of assistance the exclusive remedy in this matter. Plaintiff was pursuing an available remedy in the Common Pleas Court and therefore, the dismissal was error.

[109]*109Reversed and remanded for proceedings consistent with this opinion.

Fitzgerald, J., concurred.

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McGregor, P. J.

Plaintiff became the owner of defendants’ property by way of condemnation, but defendants did not vacate the premises for six months and did not pay monthly rent pursuant to notice given by plaintiff shortly after the condemnation in June, 1962. Plaintiff filed an assumpsit action in the Detroit Common Pleas Court for use [108]*108and occupation of the premises; however, the court dismissed the action after argument, on defendants’ motion for directed verdict, reasoning that since defendants did not specifically agree to pay rent, plaintiff’s only remedy was by a writ of assistance to secure possession of the property. The Wayne county circuit court affirmed, stating that a writ of assistance in Recorder’s Court was the exclusive remedy. The relevant portion of the Detroit Charter, Title VIII, Chapter I, § 16, contains the following language:

“In case of resistance or refusal on the part of anyone to the council or its agents and servants entering upon and talcing possession of such private property for the use and purpose for which it was taken at any time after the amount of the compensation aforesaid is actually in the treasury ready to be paid to those entitled thereto, the council, by the corporation counsel, may apply to the court, and shall be entitled on making sufficient showing, to a writ of assistance to put the city in possession of the property.” (Emphasis added.)

The issue presented is whether a writ of assistance in Recorder’s Court was plaintiff’s exclusive remedy, and, therefore, the Common Pleas Court was without jurisdiction to consider the assumpsit action.

Our r.eply to that question is no. Plaintiff, as title holder of the condemned property, could file in assumpsit and on the common counts for use and occupation of the land. Our interpretation of the charter provision, specifically the word “may”, does not deem a writ of assistance the exclusive remedy in this matter. Plaintiff was pursuing an available remedy in the Common Pleas Court and therefore, the dismissal was error.

[109]*109Reversed and remanded for proceedings consistent with this opinion.

Fitzgerald, J., concurred.

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Bluebook (online)

170 N.W.2d 478, 18 Mich. App. 106, 1969 Mich. App. LEXIS 1037, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-detroit-v-goodman-michctapp-1969.