Smith v. Reed

Michigan Supreme Court

Smith v. Reed

24 Mich. 240, 1872 Mich. LEXIS 7

CourtMichigan Supreme Court

DecidedJanuary 5, 1872

StatusPublished

Cited by3 cases

This text of 24 Mich. 240 (Smith v. Reed) 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

Smith v. Reed, 24 Mich. 240, 1872 Mich. LEXIS 7 (Mich. 1872).

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Opinion

Pjer Curiam.

This was a common-law certiorari to bring up to this court the proceedings before a circuit court commissioner upon a complaint by Reed against Smith, under the statute giving a summary remedy to landlords for the recovery of possession from a tenant holding over. Judgment of restitution was rendered against Smith, and it is the proceedings in this case which are sought to be here reviewed.

A motion is made by Reed, the complainant below, to dismiss the certiorari as improvidently issued. The statutes give two specific remedies to the defendant below for' the review of such proceedings: First, by appeal to the circuit court; and second, by the statute of 1869, p. 10, a certiorari to remove the cause to the same court. - Both these remedies are adequate and complete, but both would have required the defendant below to have executed a bond to complainant with surety to secure accruing rent, etc.; and we can see no other possible reason for resorting to the common-law certiorari, but to avoid giving this bond. While we do [241]*241not say that this court might not have the power in its discretion under special circumstances to review the case upon a common-law certiorari, it is clearly not bound to do so. And wo think it would be an abuse of judicial discretion to entertain the jurisdiction for any such purpose. See Farrell v. Taylor, 12 Mich, 113.

The motion must therefore be granted.

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Pjer Curiam.

This was a common-law certiorari to bring up to this court the proceedings before a circuit court commissioner upon a complaint by Reed against Smith, under the statute giving a summary remedy to landlords for the recovery of possession from a tenant holding over. Judgment of restitution was rendered against Smith, and it is the proceedings in this case which are sought to be here reviewed.

A motion is made by Reed, the complainant below, to dismiss the certiorari as improvidently issued. The statutes give two specific remedies to the defendant below for' the review of such proceedings: First, by appeal to the circuit court; and second, by the statute of 1869, p. 10, a certiorari to remove the cause to the same court. - Both these remedies are adequate and complete, but both would have required the defendant below to have executed a bond to complainant with surety to secure accruing rent, etc.; and we can see no other possible reason for resorting to the common-law certiorari, but to avoid giving this bond. While we do [241]*241not say that this court might not have the power in its discretion under special circumstances to review the case upon a common-law certiorari, it is clearly not bound to do so. And wo think it would be an abuse of judicial discretion to entertain the jurisdiction for any such purpose. See Farrell v. Taylor, 12 Mich, 113.

The motion must therefore be granted.

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Bluebook (online)

24 Mich. 240, 1872 Mich. LEXIS 7, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-reed-mich-1872.

Opinion

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