Kougoulas v. Sorlas

233 N.W. 414, 252 Mich. 557, 1930 Mich. LEXIS 887

• Court: Michigan Supreme Court
• Decided: December 2, 1930
• Docket: Docket No. 75, Calendar No. 35,234.
• Status: Published

Opinion

Sharpe, J.

The bill of complaint alleges that the plaintiff was arrested on November 24, 1925, on a warrant issued on complaint of defendant Sorias, in which he was charged with the larceny by trick of $7,460, contrary to section 15298, 3 Comp. Laws 1915; that on the recommendation of Van Bing, assistant prosecuting attorney, this charge was dismissed; that he was rearrested under a new com plaint and warrant containing the same charge on June 30, 1926; that he was bound over to the recorder’s court of the city of Detroit for trial, was tried, and convicted, and placed on probation on condition that he pay to the probation officer, to be turned over to Sorias, $15 per week; that he made such payments until he had paid in all $2,385, when he was discharged; that he was innocent of such charge, and that his conviction was secured by perjured testimony secured by Sorias. Much of the testimony is set forth in the bill, and argument made that some of it was inadmissible, and that he did not have a fair trial.

In his prayer for relief he asks that the criminal proceedings be “declared to be null and void,” and that the clerk of the recorder’s court be directed to expunge it from the record, and that he be “exonerated from all taint or criminality;” that the defendant Sorias be ordered to repay to him the $2,385, and that he and the defendant Nichols, the assistant prosecutor who tried the case, be ordered to pay him “such sums as he was obliged to pay out in defending himself whether in the shape of attorneys’ fees or witness fees.”

The bill was dismissed, on motion of the defendants, for the reason, among others, that it did not “set up an equitable cause of action,” and plaintiff has appealed.

"When tried on the criminal charge, plaintiff had the benefit of able counsel of his own selection, and no review thereof was had or sought in this court. The recorder’s court had jurisdiction of the offense charged and of the person of the plaintiff, and its judgment may not be reviewed by a bill in equity. As was said by Mr. Justice Butzel in Turbessi v. Oliver Iron Min. Co., 250 Mich. 110, 112 (69 A. L. R. 1059):

“The judgment of conviction is res adjudicaba and a complete defense to the present suit. Were this not the rule, every one- convicted of a felony might, after serving a term of imprisonment, collaterally attack the judgment of the court convicting him. There would be no end to litigation and frequently at a time when proper evidence might no longer be available. ’ ’

The decree is affirmed, with costs to appellees.

Wiest, C. J., and Butzel, Clark, McDonald, Potter, North, and F-ead, JJ., concurred.