Thompson v. Hurson

Michigan Supreme Court

Thompson v. Hurson

172 N.W. 544, 206 Mich. 139, 1919 Mich. LEXIS 634

CourtMichigan Supreme Court

DecidedMay 29, 1919

DocketDocket No. 42

StatusPublished

Cited by16 cases

This text of 172 N.W. 544 (Thompson v. Hurson) 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

Thompson v. Hurson, 172 N.W. 544, 206 Mich. 139, 1919 Mich. LEXIS 634 (Mich. 1919).

Pincite

Opinion

Fellows, J.

(after stating the facts). Plaintiff nas filed a motion to strike the printed record from the files for the reasons, (a) that there is no certificate of the circuit judge, and (b) that it is not sufficiently full. This motion must be overruled. Where evidence has been taken a case must be settled and signed by the trial judge. Section 22, chap. 50, Act No. 314, Pub. Acts 1915 (3 Comp. Laws 1915, § 13757) ; section 64, chap. 18 (3 Comp. Laws 1915, § 12636) ; Circuit Court Rule No. 66. Where no testimony has been taken, as in the instant case, there is no requirement and no necessity for any certificate of the circuit judge. The case is heard on the record which is authenticated by the clerk. Section 24, chap. 50 (3 Comp. Laws [142]*1421915, § 13759). It is not pointed out in plaintiff’s motion what paper or proceeding necessary to the determination of the question here involved is absent from this printed- record. Supreme Court Rule No. 35 provides:

“The party removing a cause into the Supreme Court by writ of error, appeal, certiorari, case-made, or otherwise, shall prepare a printed record for the use of the court and counsel, which shall contain all the testimony, and so much of the -pleadings, record and proceedings (and no more) as are necessary to present the questions raised.” * * *

Surely thp appellants should not be penalized or criticized because they have complied with the rule of this court and have caused to be printed a record properly presenting the only question raised. Had plaintiff by his motion pointed out anything further that was needed to properly understand the question presented an additional record might have been required. We must dispose of the case on its merits.

The meritorious question in the case is: May the circuit court upon application of a party, without leave of this court to make such application, modify a decree which has been affirmed by this court? It is well understood'that in chancery appeals this court hears the case dea novo and that the decree entered in this court is the final adjudication of the rights of the parties. In the case of Lyon v. Ingham Circuit Judge, 37 Mich. 377, a decreé of the Ingham circuit court in chancery had been affirmed by an equal division of the court. The cause having been remanded, the trial court opened the decree for further hearing. This court, speaking through Chief Justice Cooley, there said:

“The policy of the law is that when a case has once been considered and disposed of by the courts before which it may lawfully be brought, it is disposed of for all time, and the conclusion cannot be attacked in [143]*143any new proceeding except upon certain equitable grounds which are foreign to the present discussion. The court rendering the conclusive judgment may have a discretionary authority to review and revise its own action, but if that court shall have taken the case on appeal, and shall have remanded it after judgment, the court below can have no similar authority, because if it could and should exercise it, it would really be reviewing and revising the action of its superior; which would be absurd.”

But it is insisted by counsel for the plaintiff that under paragraph XIV of the decree above quoted the circuit court reserved further consideration of the case. The' language of that paragraph cannot be construed to empower the circuit court to again consider the questions finally determined by the decree of this court. An accounting had been decreed and property was to be sold under the direction of the circuit court. 'With reference to these matters the circuit court was authorized to proceed. But the rights of the parties had been finally determined by this court, and a decree entered here fixing such rights. There must be a finality to litigation, and when the court of last resort of a State has finally adjudicated the rights of parties it cannot remain for the court to which the case is remanded to determine whether such adjudication shall be enforced.

The order appealed from will be reversed, with costs to appellants.

Bird, C. J., and Moore, Steere, Brooke, Stone, and Kuhn, JJ., concurred. Ostrander, J., did not sit.

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Fellows, J.

(after stating the facts). Plaintiff nas filed a motion to strike the printed record from the files for the reasons, (a) that there is no certificate of the circuit judge, and (b) that it is not sufficiently full. This motion must be overruled. Where evidence has been taken a case must be settled and signed by the trial judge. Section 22, chap. 50, Act No. 314, Pub. Acts 1915 (3 Comp. Laws 1915, § 13757) ; section 64, chap. 18 (3 Comp. Laws 1915, § 12636) ; Circuit Court Rule No. 66. Where no testimony has been taken, as in the instant case, there is no requirement and no necessity for any certificate of the circuit judge. The case is heard on the record which is authenticated by the clerk. Section 24, chap. 50 (3 Comp. Laws [142]*1421915, § 13759). It is not pointed out in plaintiff’s motion what paper or proceeding necessary to the determination of the question here involved is absent from this printed- record. Supreme Court Rule No. 35 provides:

“The party removing a cause into the Supreme Court by writ of error, appeal, certiorari, case-made, or otherwise, shall prepare a printed record for the use of the court and counsel, which shall contain all the testimony, and so much of the -pleadings, record and proceedings (and no more) as are necessary to present the questions raised.” * * *

Surely thp appellants should not be penalized or criticized because they have complied with the rule of this court and have caused to be printed a record properly presenting the only question raised. Had plaintiff by his motion pointed out anything further that was needed to properly understand the question presented an additional record might have been required. We must dispose of the case on its merits.

The meritorious question in the case is: May the circuit court upon application of a party, without leave of this court to make such application, modify a decree which has been affirmed by this court? It is well understood'that in chancery appeals this court hears the case dea novo and that the decree entered in this court is the final adjudication of the rights of the parties. In the case of Lyon v. Ingham Circuit Judge, 37 Mich. 377, a decreé of the Ingham circuit court in chancery had been affirmed by an equal division of the court. The cause having been remanded, the trial court opened the decree for further hearing. This court, speaking through Chief Justice Cooley, there said:

“The policy of the law is that when a case has once been considered and disposed of by the courts before which it may lawfully be brought, it is disposed of for all time, and the conclusion cannot be attacked in [143]*143any new proceeding except upon certain equitable grounds which are foreign to the present discussion. The court rendering the conclusive judgment may have a discretionary authority to review and revise its own action, but if that court shall have taken the case on appeal, and shall have remanded it after judgment, the court below can have no similar authority, because if it could and should exercise it, it would really be reviewing and revising the action of its superior; which would be absurd.”

But it is insisted by counsel for the plaintiff that under paragraph XIV of the decree above quoted the circuit court reserved further consideration of the case. The' language of that paragraph cannot be construed to empower the circuit court to again consider the questions finally determined by the decree of this court. An accounting had been decreed and property was to be sold under the direction of the circuit court. 'With reference to these matters the circuit court was authorized to proceed. But the rights of the parties had been finally determined by this court, and a decree entered here fixing such rights. There must be a finality to litigation, and when the court of last resort of a State has finally adjudicated the rights of parties it cannot remain for the court to which the case is remanded to determine whether such adjudication shall be enforced.

The order appealed from will be reversed, with costs to appellants.

Bird, C. J., and Moore, Steere, Brooke, Stone, and Kuhn, JJ., concurred. Ostrander, J., did not sit.

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172 N.W. 544, 206 Mich. 139, 1919 Mich. LEXIS 634, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thompson-v-hurson-mich-1919.

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