Kent v. Bell

Michigan Supreme Court

Kent v. Bell

118 N.W.2d 486, 368 Mich. 443, 1962 Mich. LEXIS 347

CourtMichigan Supreme Court

DecidedDecember 4, 1962

DocketDocket 29, Calendar 49,625

StatusPublished

Cited by10 cases

This text of 118 N.W.2d 486 (Kent v. Bell) 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

Kent v. Bell, 118 N.W.2d 486, 368 Mich. 443, 1962 Mich. LEXIS 347 (Mich. 1962).

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Opinions

[451]*451Black, J.

(concurring in part). The general rule is that equity cases should be so tried that, if appealed, they may come to this Court for final disposition on a complete and comprehensive record. Culy v. Upham, 135 Mich 131 (106 Am St Rep 388); Crocker v. Crocker, 362 Mich 6; Kenny v. Village of Novi, 367 Mich 75; Lamb v. Jeffrey, 41 Mich 719. The principal reason, of course, is that we hear and determine equity cases anew. Further, and as said in Lamb v. Jeffrey at 721:

“The judge erred in this dismissal. Complainant was entitled to put in his proofs, and have the ease come up on the facts. Hewlett v. Shaw, 9 Mich 346. And in any case where a demurrer to the bill is sustained, the case ought not to be dismissed unless the defects are such as cannot be cured by amendment, or unless the complainant declines to ame^d; neither of which appears in this case.”

Plaintiff, pleading no matter of evidence distinguished from conclusions of fact (this he is told to do by Court Rule No 17, § 2 [1945]), is “entitled to put in Ms proofs.” We should accord him that right rather than encourage more of today’s modishly mechanical style of justice, rendered as that usually is upon hypercritical examination of pleadings rather than the seen and heard word of witnesses testifying before the designated trier or triers of fact. Sure, it is easier and more convenient — below and here — to get rid of cases summarily upon motion and affidavit; or motion alone. But that hardly justifies denial of right to a real day in court or, in lieu thereof, fair opportunity of amendment.

It is proposed now that this plaintiff be tossed out of court, upon motion and with final prejudice, without affording Mm the right to which the statute (CL 1948, § 650.18 [Stat Ann 1943 Rev § 27.2608]) supposedly guarantees for one whose bill of complaint [452]*452is found insufficient. And this is not a case (see Morris v. Massachusetts Mutual Life Ins. Co., 368 Mich 172) where previous opportunities of suggested amendment have gone unheeded. It is one where, as in Lamb, supra, the plaintiff has not as yet “declined to amend.”

This is not a case where some legal or jurisdictional bar to assumption of equity jurisdiction is apparent on face of the bill. It is, in plain sum, a case of allegation that plaintiff should have pleaded his evidence in specific detail on penalty of final dismissal. Thus if a plaintiff pleads too much evidence he is supposed to be due for castigation. If he pleads too little evidence, the trap of dismissal allegedly snaps shut. Either way, if we affirm, another statistic is comfortably added to the list headed “cases disposed of.”

I would reverse and remand for entry of order denying defendants’ motion to dismiss or, in the alternative, affirm with leave to amend (see Melvin v. Reading, 346 Mich 348, 356, 357).

Kavanagh, Souris, and Otis M. Smith, JJ., concurred with Black, J.

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[451]*451Black, J.

(concurring in part). The general rule is that equity cases should be so tried that, if appealed, they may come to this Court for final disposition on a complete and comprehensive record. Culy v. Upham, 135 Mich 131 (106 Am St Rep 388); Crocker v. Crocker, 362 Mich 6; Kenny v. Village of Novi, 367 Mich 75; Lamb v. Jeffrey, 41 Mich 719. The principal reason, of course, is that we hear and determine equity cases anew. Further, and as said in Lamb v. Jeffrey at 721:

“The judge erred in this dismissal. Complainant was entitled to put in his proofs, and have the ease come up on the facts. Hewlett v. Shaw, 9 Mich 346. And in any case where a demurrer to the bill is sustained, the case ought not to be dismissed unless the defects are such as cannot be cured by amendment, or unless the complainant declines to ame^d; neither of which appears in this case.”

Plaintiff, pleading no matter of evidence distinguished from conclusions of fact (this he is told to do by Court Rule No 17, § 2 [1945]), is “entitled to put in Ms proofs.” We should accord him that right rather than encourage more of today’s modishly mechanical style of justice, rendered as that usually is upon hypercritical examination of pleadings rather than the seen and heard word of witnesses testifying before the designated trier or triers of fact. Sure, it is easier and more convenient — below and here — to get rid of cases summarily upon motion and affidavit; or motion alone. But that hardly justifies denial of right to a real day in court or, in lieu thereof, fair opportunity of amendment.

It is proposed now that this plaintiff be tossed out of court, upon motion and with final prejudice, without affording Mm the right to which the statute (CL 1948, § 650.18 [Stat Ann 1943 Rev § 27.2608]) supposedly guarantees for one whose bill of complaint [452]*452is found insufficient. And this is not a case (see Morris v. Massachusetts Mutual Life Ins. Co., 368 Mich 172) where previous opportunities of suggested amendment have gone unheeded. It is one where, as in Lamb, supra, the plaintiff has not as yet “declined to amend.”

This is not a case where some legal or jurisdictional bar to assumption of equity jurisdiction is apparent on face of the bill. It is, in plain sum, a case of allegation that plaintiff should have pleaded his evidence in specific detail on penalty of final dismissal. Thus if a plaintiff pleads too much evidence he is supposed to be due for castigation. If he pleads too little evidence, the trap of dismissal allegedly snaps shut. Either way, if we affirm, another statistic is comfortably added to the list headed “cases disposed of.”

I would reverse and remand for entry of order denying defendants’ motion to dismiss or, in the alternative, affirm with leave to amend (see Melvin v. Reading, 346 Mich 348, 356, 357).

Kavanagh, Souris, and Otis M. Smith, JJ., concurred with Black, J.

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118 N.W.2d 486, 368 Mich. 443, 1962 Mich. LEXIS 347, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kent-v-bell-mich-1962.

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