In Re Brewer

228 N.W. 762, 250 Mich. 450

• Court: Michigan Supreme Court
• Decided: January 24, 1930
• Docket: Docket No. 115, Calendar No. 34,210.
• Status: Published

Opinions

Potter, J.

May 27,1927, plaintiff filed a petition in the circuit court for Kent county to vacate a part of the plat called Indian Trail. The application was to vacate lots 40 to 57 inclusive, and the walks, so-called, lying between 40 and 41, 46 and 47, 51 and 52, and that part of the street called Indian Trail lying opposite the northwesterly side of lots 40 to 57 inclusive. Service was had and objections filed by a number of landowners. The case was tried and the application dismissed December 28, 1927. Petition for certiorari was presented and the case is here upon the return to the writ. Defendants filed a petition asking the dismissal of the certiorari proceedings upon the grounds: First, the appellant had an adequate remedy by appeal, but, having lost it, he has lost the right to a writ of certiorari; and, second, the appellant has been guilty of laches and therefore is not entitled to a writ of certiorari.

The rule is well settled that a writ of certiorari will not issue in those cases in which there is a plain, speedy, and adequate remedy by appeal, writ of error, or exceptions. In those cases in which the applicant for certiorari has lost his right to appeal through inadvertence, accident, or mistake, it is sometimes held that he may have a remedy by cer, tiorari on a showing of probable merits and freedom from fault. But where a party has negligently suffered the time to elapse within which an appeal might have been taken or a writ of error sued out, or has disregarded any other remedy to which he was entitled, and such neglect is not sufficiently -excused, or where he has failed seasonably to take advantage of the ordinary remedies afforded to him, certiorari will not lie.

“The writ of certiorari is a discretionary writ, and not a writ of right, and this court has consistently followed the rule that where another remedy is available and adequate, the writ will not be granted, except under peculiar circumstances, where the denial would involve a failure of justice. ’ ’ People v. James, 155 Mich. 548.

“If the error complained of could have been em- . bodied in a bill of exceptions, a writ of certiorari would have been denied.” People v. James, supra.

“From an early day it has been held by this court that the remedy by certiorari should not be favored, and would generally be refused when another adequate remedy existed.” Detroit Lumber Co. v. Auxiliary Yacht “Petrel,” 155 Mich. 350.

“While it is true that certiorari should not be favored where any other remedy is adequate, yet it will undoubtedly lie for want of jurisdiction. But in cases involving the interference with important works, the writ ought not to be allowed unless applied for as soon as practicable. The time for appeal is limited to twenty days, and we shall not feel disposed to sustain a certiorari granted after a longer time, unless under circumstances clearly explaining and accounting for the delay.” Dunlap v. Railway Co., 46 Mich. 190.

The writ will be denied, with costs to defendants.

Wiest, C. J., and Butzel, Clark, Sharpe, North, and Fead, JJ., concurred. McDonald, J., took no part in this decision.