Dawson v. Chippewa Circuit Judge

Michigan Supreme Court

Dawson v. Chippewa Circuit Judge

86 N.W. 801, 127 Mich. 328, 1901 Mich. LEXIS 987

CourtMichigan Supreme Court

DecidedJuly 2, 1901

StatusPublished

Cited by1 cases

This text of 86 N.W. 801 (Dawson v. Chippewa 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

Dawson v. Chippewa Circuit Judge, 86 N.W. 801, 127 Mich. 328, 1901 Mich. LEXIS 987 (Mich. 1901).

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Opinion

Per Curiam.

This is an application for mandamus requiring respondent to vacate an order recalling a writ of possession. The writ was issued in an action of ejectment upon a judgment for plaintiff affirmed in this court (Dawson v. Falls City Boat Club, 125 Mich. 433, 84 N. W. 618), and after remittitur filed in the circuit. Two reasons are urged why the writ of possession should not have been issued: First, that no notice of an application for the writ was filed; and, second, that costs had not yet been taxed.

[329]*329The writ was issuable without notice and as of course, and might be issued in vacation as well as term time. Christler v. Locke, 103 Mich. 86 (61 N. W. 263 ).

Nor was it necessary to wait for taxation of costs before issuing the writ. Section 11201, 3 Comp. Laws, providing that one entitled to a writ of possession may include in the same writ an execution against the property, is permissive, and implies the right to elect to take separate writs.

The fact that in ejectment the defendant has a statutory right to a new trial does not militate against plaintiff’s right to a writ of possession. 3 Comp. Laws, § 10986, recognizes the fact that plaintiff may lawfully have obtained possession before a motion for a new trial, and provides that he may retain such possession pending a new trial.

The writ will issue.'

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Per Curiam.

This is an application for mandamus requiring respondent to vacate an order recalling a writ of possession. The writ was issued in an action of ejectment upon a judgment for plaintiff affirmed in this court (Dawson v. Falls City Boat Club, 125 Mich. 433, 84 N. W. 618), and after remittitur filed in the circuit. Two reasons are urged why the writ of possession should not have been issued: First, that no notice of an application for the writ was filed; and, second, that costs had not yet been taxed.

[329]*329The writ was issuable without notice and as of course, and might be issued in vacation as well as term time. Christler v. Locke, 103 Mich. 86 (61 N. W. 263 ).

Nor was it necessary to wait for taxation of costs before issuing the writ. Section 11201, 3 Comp. Laws, providing that one entitled to a writ of possession may include in the same writ an execution against the property, is permissive, and implies the right to elect to take separate writs.

The fact that in ejectment the defendant has a statutory right to a new trial does not militate against plaintiff’s right to a writ of possession. 3 Comp. Laws, § 10986, recognizes the fact that plaintiff may lawfully have obtained possession before a motion for a new trial, and provides that he may retain such possession pending a new trial.

The writ will issue.'

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Bluebook (online)

86 N.W. 801, 127 Mich. 328, 1901 Mich. LEXIS 987, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dawson-v-chippewa-circuit-judge-mich-1901.

Opinion

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