Von Hoene v. Barber

184 N.W. 526, 215 Mich. 538, 1921 Mich. LEXIS 790

• Court: Michigan Supreme Court
• Decided: October 3, 1921
• Docket: Docket No. 53
• Status: Published

Opinions

Moore, J.

This is a chancery proceeding originally commenced against defendants Barber and Theile. Later the other defendants were allowed to intervene.

On January 12, 1921, the following order of the circuit judge was filed:'

“At a session of said court held in the Wayne county building, Detroit, Wayne county, Michigan, on the 6th day of December, 1920.

. “Present, Hon. Howard Wiest, circuit judge.

“This cause having come on to be heard upon the bill of complaint of the plaintiffs, the answer of the defendants, the petition by way of interventions of Edward and Adela Griesbach, and the answer thereto of the plaintiffs, and the court having examined the contract admitted by all parties to have been executed with reference to the subject-matter, and the court having heard the statements of counsel for the respective parties to this cause, examined their briefs and being informed, in the premises,

“It is adjudged and decreed that the plaintiffs in this cause have no vendee’s lien upon the property in the bill of complaint described as follows: Lot No. 465, St. Clair Park subdivision of the city of Detroit, county of Wayne and State of Michigan, and known as Nos. 615 and 617 Emerson avenue. And the claim of the plaintiffs to a lien thereupon is wholly disallowed.

“It is further adjudged .and decreed that in the bill of complaint of the plaintiffs and their answer to the petition of the interveners, and in the pleadings, there is no averment or averments which confer upon this court any chancery jurisdiction, and in accordance with the statute in such case made and provided, said cause may be, and the same hereby is, forthwith transferred from the chancery to the law side of this court, there to be proceeded with, after such alteration in the pleadings as shall be essential, as though the original chancery cause had been set for trial and proceeded to trial after an adjournment to allow necessary amendments.

“It is further ordered that on or before January 25, 1921, the plaintiffs shall make such changes in the bill of complaint as they shall deem necessary to constitute a declaration against such of the defendants as they desire to sue upon the law side of this court, and that within five days of the service of such a declaration upon said defendants, or their respective attorneys, they shall respectively plead thereto.”

The case is brought here by appeal.

The cláim of appellants is stated as follows in the brief of counsel:

“To recapitulate our argument, we ask that the decree of the court below be reversed and the case set for hearing, and the petition of the interveners be dismissed:

“(1) Because the interveners have no standing either by common law nor under our statute.

“ (2) Because if entitled to remain in court they cannot be heard to object to the propriety of this proceeding.

“ (3) _ Because the plaintiff’s case is one in which they are entitled to equitable relief, and can have adequate redress only in a court of chancery.”

Group one and two may be considered together. The lower court was evidently of the opinion that the order of intervention was authorized by the following:

“In an action either at law, or in equity, any one claiming an interest in the litigation may, at any time, be permitted to assert his right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding.” 3 Comp. Laws 1915, § 12362.

Counsel now say that the intervener cannot question the propriety of the main proceeding. The order allowing intervention was made November 18, 1920. No motion was made to transfer the case to the law side of the court until December 6, 1920. This motion was made not only by the interveners but was also made by defendant Barbara Theile. It is unnecessary to decide whether the motion to transfer the case could be made by the interveners alone because one of the original defendants made the motion also.

The section of the statute involved is section 12351, 3 Comp. Laws 1915, which reads in part:

“If at any time it appear that a suit commenced in equity should have been brought as an action on the law side of the court * * * it shall be forthwith transferred to the proper side.” * * *

If the transfer was properly made upon the motion of defendant Theile, — as we think it was — it would carry the entire case to the law side of the court.

It is urged that the transfer should be made only upon the application of the plaintiff. This, contention overlooks the fact that when a defendant is a party to a litigation he is just as much interested in having it finally decided as is the plaintiff. The con= tention also overlooks the interest the public has in having its courts freed from the necessity and expense of two or more lawsuits, when one will answer every purpose. The language of the statute is broad enough to safeguard the rights of all parties interested in the litigation. The language is clear, explicit and unambiguous and should be given effect. Lake Superior Brass Foundry Co. v. Houghton Circuit Judge, 209 Mich. 380; Courtney v. Youngs, 202 Mich. 384.

Can the plaintiff have adequate redress only in a court of chancery? It has already appeared that the trial court was of the opinion that there was no averment or averments in the pleadings which would confer upon the court chancery jurisdiction. The bill of complaint is not contained in the record. There does appear therein what purports to be an abstract thereof. Shorn of its legal verbiage it is stated that defendant Theile employed defendant Barber to sell certain real estate in Detroit; we quote:

"To induce the plaintiffs to purchase said premises, represented to the plaintiff Jenny Von Hoene, on November 13, 1919, that he was so employed, that the two-family flat -on the said premises was what is known as solid brick as distinguished from brick veneer, well knowing that the plaintiffs desired only to purchase a solid brick; that the plaintiffs relied upon these representations, were induced thereby to agree to purchase, and paid the said Barber $500 on the purchase price, and that the said, building was a brick veneer and not a solid brick building, whereby the plaintiffs were defrauded, and prayed that the defendants answer come to account with the plaintiffs; that the plaintiffs be decreed to have a vendee’s lien for the amount so paid, their damages and costs, and have execution therefor, and for general relief, attaching a copy of the preliminary contract as an exhibit.”

It is not made to appear that plaintiffs have not a complete and adequate remedy at law, nor is it averred that defendants Barber and Theile are not abundantly able to pay any judgment that plaintiffs may obtain against them.

The order of the trial judge is afflrmed, with costs.

Steere, C. J., and .Fellows, Stone, and Bird, JJ., concurred with Moore, J. Wiest, J., did not sit.