Stone v. Person

105 Mich. 234

• Court: Michigan Supreme Court
• Decided: May 7, 1895
• Status: Published

Opinion

Per Curiam.

The voluntary intervention by Mrs. Buck, and the filing of her petition in the pending chancery suit of Sherwood, Commissioner, v. Central Michigan Savings Banh, without having first obtained leave to do so, were undoubtedly irregular and unauthorized. The correct practice is pointed out in Citizens’ Savings Bank v. Circuit Judge, 98 Mich. 173. The circuit judge might, and perhaps should, have dismissed or stricken from the files her petition. But he declined to do so, and the question now is, shall this Court by mandamus compel it to be done? If Mrs. Buck had applied for leave to intervene and to file her petition, such leave could, and probably would, have been granted. That course should have been pursued. But, while the practice is not to be encouraged, it is undoubtedly competent, generally, for the chancery court, by order nunc pro tunc, to authorize and validate the intervention and the filing of such petition by a claimant. We are satisfied that the order of the circuit court for the county of Ingham, in chancery, sustaining petitioner’s demurrer, and the subsequent order of March 16 last, denying the application to strike the petition of Mrs. Buck from the files, should be treated as equivalent in all respects to such order nunc pro' tunc.

It follows that the mandamus prayed for cannot issue. Belator’s application, therefore, for an order to show . cause, must be denied.