Marshall v. Saginaw Circuit Judge , 1909 Mich. LEXIS 584 ( 1909 )

McAlvay, J.

Relator, as plaintiff, in an action for damages for personal injuries, on May 21, 1908, in the circuit court for Saginaw county, obtained a verdict for $2,000 against the Saginaw Valley Traction Company, as defendant, upon which verdict a judgment was duly-entered May 25, 1908. This judgment was in due legal form,-and also contained the following provision:

“And it is further ordered that the said defendant have twenty (20) days in which to move for a new trial, or to settle a bill of exceptions, and that all further proceedings in said cause be stayed during'said time, except taxation of costs.”

On May 26th defendant made a motion for a new trial, noticed to be heard June 1, 1908. This motion, by agreement, was set down for argument and heard July 1, 1908. On August 3, 1908, the court made an order granting a new trial unless plaintiff should, within 10 days, remit $500 of the verdict rendered in the case. On August 8th, plaintiff filed a remittitur, pursuant to said order. On August 18, 1908, defendant filed a statutory bond as in form provided by section 10355, 3 Comp. Laws. On August 24th, defendant made a motion for an extension of time of 60 days to settle a bill of exceptions, and noticed for hearing August 31st. No showing by affidavit was made in support of such motion. This motion was resisted because of the absence of such affidavit and for other reasons in writing duly filed. It was argued September 15th, and granted; the time to settle a bill of exceptions being extended until October 25, 1908. Relator asks for a writ of mandamus to set aside and vacate the order extending the time for settling a bill of exceptions, alleging that it was without jurisdiction and void, for the reason that defendant filed no bond as required by section 10355, 3 Comp. Laws, and that it was not made upon good cause shown by affidavit. The question here involved was recently passed upon by this court in Harper v. Wayne Circuit Judge, 155 Mich. 543, to which reference is had. That case is controlling of the case at bar. The writ is therefore denied.

Blair, C. J., and Grant, Montgomery, and Ostrander, JJ., concurred.