Benson v. Wayne Circuit Judge ( 1931 )

In his return on appeal to circuit court, a justice of the peace failed to state or return any pleadings, oral or written, as required by 3 Comp. Laws 1929, § 16233. Plaintiff here, appellant there, knew at once of the omission, took no steps to procure an amended return under 3 Comp. Laws 1929, §§ 16236, 16237, but a month later, four days before the case was to be heard, moved the circuit court to permit pleadings to be filed. There was a dispute whether there had been any pleadings in justice's court. On motion of the appellee, the court entered judgment dismissing the appeal for want of a proper return. Eight months later, plaintiff filed petition for writ of mandamus to compel the court to set aside the judgment. The order to show cause was issued two years ago and is now brought on for hearing.

Plaintiff neglected to invoke the clear and definite remedy provided by statute by way of amended return. He has not been diligent in pursuing his action. There was no abuse of discretion, and no outstanding considerations of justice require issue of the discretionary writ of mandamus.

Writ denied, with costs.

CLARK, C.J., and McDONALD, POTTER, SHARPE, NORTH, WIEST, and BUTZEL, JJ., concurred.