People ex rel. Roediger v. Drain Commissioner

40 Mich. 745, 1879 Mich. LEXIS 678

• Court: Michigan Supreme Court
• Decided: April 25, 1879
• Status: Published

Opinion

Campbell, C. J.

Relators upon an affidavit made in their joint behalf1 as husband and wife obtained a~ certioran to review the proceedings of respondent in reloeating a certain ditch, whereby they claim damage accrued. The chief grounds of objection related to the absence of any adequate record.

It now appears that the commissioner was delayed in making up his record by other engagements, and that John N. Eoediger knew of most if not all the proceedings, and took a contract to dig, and did dig, part of the ditch. The action of relators here is joint, and it is to be presumed their interest was the common-law tenure of husband and wife, wherein the husband was always the proper person to represent the estate. We are not called on to decide how far he may bind his wife now, because in this case the proceeding is on behalf of both, and she cannot stand in any better position than her husband in this court. As a matter of fact there is reason to believe she knew as much as he did. But we do not care to inquire closely into this, which would be conjectural. Neither shall we look into the law questions.

It is very certain that unless in a case where the remedy is one which courts have no right to refuse, such conduct in a relator as appears in this record should prevent him from being heard to complain. The proceeding by certiorari is subject to discretion, and should not.be allowed to be enforced where the equities are so much against it as they are here. Matter of Lantis, 9 Mich., 324; Farrell v. Taylor, 12 Mich., 113.

The writ must be quashed with costs as improvidently granted.

The other Justices concurred.