Duell v. Oakland Circuit Judge

Michigan Supreme Court

Duell v. Oakland Circuit Judge

173 N.W. 340, 206 Mich. 680, 1919 Mich. LEXIS 712

CourtMichigan Supreme Court

DecidedJuly 17, 1919

DocketCalendar No. 28,813

StatusPublished

Cited by2 cases

This text of 173 N.W. 340 (Duell v. Oakland 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

Duell v. Oakland Circuit Judge, 173 N.W. 340, 206 Mich. 680, 1919 Mich. LEXIS 712 (Mich. 1919).

Pincite

Opinion

Brooke, J.

(after stating the facts). We are of opinion that the learned circuit judge was clearly in error in declining to reinstate the case upon learning that through an error the clerk or his deputy had failed to file the plea properly. It is asserted by counsel for plaintiff that the statute of limitations prevents the starting of a new suit and therefore that if this decision is allowed to stand he will be denied a trial of his action upon the. merits. It was within the power of the learned circuit judge to correct the wrong done through the inadvertence of the clerk, and, in the exercise of a sound legal discretion, he should have done so.

The mandamus will issue as prayed.

Bird, C. J., and Ostrander, Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred.

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Brooke, J.

(after stating the facts). We are of opinion that the learned circuit judge was clearly in error in declining to reinstate the case upon learning that through an error the clerk or his deputy had failed to file the plea properly. It is asserted by counsel for plaintiff that the statute of limitations prevents the starting of a new suit and therefore that if this decision is allowed to stand he will be denied a trial of his action upon the. merits. It was within the power of the learned circuit judge to correct the wrong done through the inadvertence of the clerk, and, in the exercise of a sound legal discretion, he should have done so.

The mandamus will issue as prayed.

Bird, C. J., and Ostrander, Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred.

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Bluebook (online)

173 N.W. 340, 206 Mich. 680, 1919 Mich. LEXIS 712, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duell-v-oakland-circuit-judge-mich-1919.

Opinion

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