City of Detroit v. Donovan ( 1896 )

The facts as established by the answer of the respondent wére:

a — That on March 12, 1894, a verdict for $3,000 was rendered in the Wayne circuit court in favor of Thomas State, administrator of the estate of Josephine State, deceased, and against relator in a personal injury case; that under date of March 28, 1894, an entry appears on the calendar of said court of “Judgment entered” in said ease; that on June 4, 1894, costs were taxed upon stipulation of the attorneys, in which taxation no charge was made in favor of plaintiff for the judgment fee.

b — That the time in which to settle a bill of exceptions was several times extended on motion of the defendant; that on October 10, 1894, a bill of exceptions was settled, signed, and filed in the case; that on February 26,1895, a writ of error, returnable April 6, 1895, was issued; that on September 23, 1895, judgment was duly entered nunc pro tuno as of March 28,1894, there having been no entry of judgment in the journal of the court before that time.

e — That the verdict was a small one for the iniury sustained; that it was right and just that the same should bear interest; that this point was considered when judgment was entered; that plaintiff acted in good faith in the matter and was misled by the said calendar entry, and would have entered judgment himself at date of said entry had he not been misled thereby; that it is not uncommon in the practice of said circuit court that the defeated party pays the judgment fee and enters the judgment against himself.

d — That the defendant delayed to more in the case from the date of the writ of error until December 31, 1895, when the motion to vacate said judgment was made; that about December 4,1895, plaintiff had given notice of a motion to dismiss said writ of error for want of prosecution, no return having been made or assignments of error filed; that said motion was never heard; that defendant’s attorney had, before the making of said motion to vacate said judgment, voluntarily dismissed said writ, not for. the reason that it had been prematurely issued, but that no return had been made or assignments of error filed; that the grounds upon which said motion to dismiss was based were good and valid, and the defendant was guilty of laches in the prosecution of its appeal.

e — That the attorney for the defendant not only knew that plaintiff was about to apply for judgment, but advised him to do so; that on October 1, 1895, plaintiff’s attorney informed defendant’s attorney that said judgment had been entered; that defendant’s attorney took no steps in the matter until more than three months thereafter; that he acquiesced in what had been done; that from said advice and delay and acquiescence he authorized and approved said judgment as it was entered; that it is not the practice in said circuit court for the prevailing party to give notice to the other party when he enters judgment.

/ — That defendant must have known at least as early as October 10, 1894, when the bill of exceptions was settled, that no judgment had been entered; that defendant’s attorney knew on June 4, 1894, .when the costs were taxed that plaintiff made no claim for the judgment fee, and therefore that he had not paid it nor entered judgment himself; that as a matter of fact plaintiff did not know that judgment had not been entered until September 1, 1895, when his attorney was so informed by defendant’s attorney; that there was then some talk of settlement between said attorneys; that plaintiff acted with reasonable diligence, under the circumstances, in entering said judgment.

g — That the petition for mandamus does not set forth the showing made before respondent upon the motion to vacate said judgment.

[Judgment by consent was entered April 6, 1896, with interest from date of original judgment entry. Editor.]

Motion to Modify Order.

A motion to modify the order vacating the judgment so as to allow it to stand as of the date when it was actually-entered was denied. In a per curiam opinion found in 66 N. W. Rep. 667, the Court say:

“The claim is made that unless the order is modified so as to allow it to stand as of the date it was actually entered, plaintiff will lose his interest on the judgment from the date of the verdict to the time of the entry of the judgment. We see no difficulty in the securing of the interest in the entry of a new judgment.”