Gemberling v. Lazarus

Michigan Supreme Court

Gemberling v. Lazarus

58 N.W. 1005, 100 Mich. 324, 1894 Mich. LEXIS 808

CourtMichigan Supreme Court

DecidedMay 18, 1894

StatusPublished

Cited by7 cases

This text of 58 N.W. 1005 (Gemberling v. Lazarus) 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

Gemberling v. Lazarus, 58 N.W. 1005, 100 Mich. 324, 1894 Mich. LEXIS 808 (Mich. 1894).

Pincite

Opinion

Long, J.

This cause was tried before the court without a jury, and no exceptions were taken to any of the rulings of the trial judge; and no written findings of fact or law were requested, and none were made. All the testimony is returned into this Court, and upon which counsel for defendant asks this Court to review the action of the [325]*325trial court. "We have repeatedly declined to do this. If a review is desired in this Court, where a trial has been had before the court below without a jury, written findings of fact and law must be asked for and had, and exceptions taken thereto. The case is ruled by Township of Cumming v. Schick, 94 Mich. 222, and Haines v. Saviers, 93 Id. 440.

It is claimed, however, that a motion for a new trial having been made and overruled, and those proceedings having been incorporated in the bill of exceptions, the cause should be heard here upon that motion. Act No. 134, Laws of 1893, provides that, where a motion for a new trial has been previously refused by the trial judge, the party appealing may incorporate in the bill of exceptions a record of all proceedings had on said motion for a new trial, including the reasons given by the trial judge in refusing to grant said new trial, and exceptions may be taken and error assigned on the decision of the circuit judge in refusing such motion, and the same shall be reviewed by the Supreme Court.

1. It may be said that it does not appear that any exceptions were taken to the reasons given or decision made by the circuit judge in refusing to grant a new trial.

2. The motion for a new trial was decided January 5, 1893. The writ of error in the cause was issued May 12. The act above referred to, under which the right was claimed, was approved May 27, 1893, and did not take effect until the lapse of 90 days from the last day of sitting of the Legislature; so that the act was not in effect at the time the motion for a new trial was decided, or when the writ of error was issued in this cause.

Judgment is affirmed.

The other Justices concurred.

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Long, J.

This cause was tried before the court without a jury, and no exceptions were taken to any of the rulings of the trial judge; and no written findings of fact or law were requested, and none were made. All the testimony is returned into this Court, and upon which counsel for defendant asks this Court to review the action of the [325]*325trial court. "We have repeatedly declined to do this. If a review is desired in this Court, where a trial has been had before the court below without a jury, written findings of fact and law must be asked for and had, and exceptions taken thereto. The case is ruled by Township of Cumming v. Schick, 94 Mich. 222, and Haines v. Saviers, 93 Id. 440.

It is claimed, however, that a motion for a new trial having been made and overruled, and those proceedings having been incorporated in the bill of exceptions, the cause should be heard here upon that motion. Act No. 134, Laws of 1893, provides that, where a motion for a new trial has been previously refused by the trial judge, the party appealing may incorporate in the bill of exceptions a record of all proceedings had on said motion for a new trial, including the reasons given by the trial judge in refusing to grant said new trial, and exceptions may be taken and error assigned on the decision of the circuit judge in refusing such motion, and the same shall be reviewed by the Supreme Court.

1. It may be said that it does not appear that any exceptions were taken to the reasons given or decision made by the circuit judge in refusing to grant a new trial.

2. The motion for a new trial was decided January 5, 1893. The writ of error in the cause was issued May 12. The act above referred to, under which the right was claimed, was approved May 27, 1893, and did not take effect until the lapse of 90 days from the last day of sitting of the Legislature; so that the act was not in effect at the time the motion for a new trial was decided, or when the writ of error was issued in this cause.

Judgment is affirmed.

The other Justices concurred.

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Bluebook (online)

58 N.W. 1005, 100 Mich. 324, 1894 Mich. LEXIS 808, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gemberling-v-lazarus-mich-1894.

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