American Eutectic Welding Alloys Sales Co. v. Grier , 363 Mich. 175 ( 1961 )

Black, J.

Mr. Justice Smith writes:

“Under the view we have taken of the case it is-pointless to discuss the difference, if any there be in reality, at this stage in the judicial process, between (1) an appeal as of right, and (2) an application for leave to appeal involving ‘a construction of the Constitution or of any statute of this State, or any matters of great public importance * * */ which application we are required to grant.” (The emphasis is that of the present writer.)

My learned Brother leans directly on an old statute, the most recent amendment of which was forced by the declaration of separational independence found in People v. Stanley, 344 Mich 530. The amendment reads (CLS 1956, § 650.1 [Stat Ann 1959 Cum Supp § 27.2591]) :

“Sec. 1. Writs of error upon any final judgment or determination, where the judgment exceeds in amount $500.00, or where judgment has been rendered upon a directed verdict for defendant in cases involving a claim of more than $500.00, may issue, of course, out of the Supreme Court, in vacation as well as in term, and shall be returnable to the same Court; and in all other cases such writ may issue in the discretion of the Supreme Court or any justice thereof upon proper application: Provided, however, That if said case involves a construction of the Constitution or of any statute of this State, or any matters of great public importance or involves the contest of a will, such application need only show such fact and, when filed, the writ of error shall issue of course.”

So we are “required” to grant all applications— whatever their conclusionary form or want of judicial verification¹- — counsel may choose to make under this statute. Who “requires” such processual obedience by this Court? Lo, it is the legislative branch. I disagree.

This is the tale of 2 reviews of twice-unsuccessful motions for summary judgment in each of the captioned cases. It would end, if my Brother’s opinion prevails, with the floodgates opened wide for appeals of right in law cases and an abject surrender of judicial power to the legislature. With the legislature thus dictating the course and extent of appellate judicial process, it would not be difficult to foretell continued gleeful death in the legislature of any measure designed to provide overdue intermediate assistance for this highest Court of a State. Our only available means of relief, from today’s and tomorrow’s overload (that of requiring application and grant of leave to review all matters we may lawfully review), would be lost this day if our majority should decide to haul down the constitutional flag article 7 has entrusted to our membership.

It is hardly necessary to add that a continuously overloaded appellate court does not do as good precedential work as otherwise it might do. “The whole swarm of rulings” predicted by Mr. Justice Graves (see full quotation, infra ) would be brought here for review, once the word is professionally passed that appeal by statutorily “required” writ of error is available generally to all who are willing to write, into a “claim” of appeal, that a question of constitutional or statutory construction, or “of great public importance,” is involved. This surely would mean open advent of the cussed and discussed “one-man opinion.”⁴

These suits originated in Detroit common pleas. They are based on awards made by a New York arbitrator, allegedly on authority of separate and like contracts made in New York by and between the plaintiff and each defendant. Each award was confirmed by judgment of a New York trial court. The confirmed award to plaintiff against defendant Grier amounted to $749.60. The confirmed award to plaintiff against defendant Trecot was in the sum of $908.20. No process was served on the defendants in or from New York State save only as eontentiously indicated in the respective opinions of Judge Neuenfelt in circuit and Justice Smith here.

The cases having come to issue in common pleas, plaintiff filed motions for summary judgment against each defendant. Judge Yokes of common pleas denied both motions. Plaintiff duly applied to the circuit court for leave to appeal from the orders of denial. The circuit court granted leave in each instance. In circuit plaintiff moved again for summary judgment against each defendant. That court denied both motions and ordered remand for further proceedings under section 21 of Court Rule No 77 (1945). Plaintiff, deigning no application for leave this time, arrives upon claim of right by a captioned “claim of appeal” reading (in each case) as follows:

“American Eutectic Welding Alloys Sales Co., Inc., a foreign corporation, plaintiff, claims an appeal from the order entered March 4,1960, by the Honorable Lila M. Neuenfelt, judge of the circuit court for the county of Wayne, denying summary judgment. Appellant takes general appeal pursuant to PA 1953, No 4, as amended, and other applicable laws and statutes of the State of Michigan in such cases made and provided. Appellant shows that the effect of the order appealed from is to deny full faith and credit to a judgment of the supreme court of the State of New York upon which plaintiff’s cause of action is based.”

We cannot evade this challenge of the judicial power. Either we have authority — and duty — to insist on due compliance by all appellants with the applicable procedures of 31-year-old Court Rule No 60 (1945), or the legislature has power to suspend those procedures when that body chooses so by a measure “requiring” grant of an “application” for leave to appeal or constitutional writ. Such is the real issue before us, neglect of which is surely due to seat the legislature firmly on the judicial steed. Until now, we have not been unhorsed. “Spurs can only be applied by a rider and the legislature does not occupy the judicial saddle.” (Wiest, J., concurring in Stepanian v. Moskovits, 232 Mich 630, 639.)

I stress in limine this stark fact: No judgment for or against the plaintiff in either of the 2 cases has as yet been entered in either of the 2 courts below. Thus, under the old practice as well as the new, denial prior to trial of an interlocutory motion has never been reviewable by issuance and return of a writ of error.

In Hermesmeyer v. Northwestern Investment Co., 254 Mich 384, the defendant filed motion for summary judgment. The motion was denied, and defendant claimed appeal of right. The Court said:

“No application for leave to appeal was made to this Court, and no such leave has been granted. The appeal must therefore be dismissed. As this question is not raised by counsel for appellees, no costs will be allowed.”

In Quail v. Cole, 260 Mich 642, the appellant claimed appeal of right from another nonfinal order (setting aside default and judgment) in a law case. Relying on this same statute (cited then as CL 1929, § 15491) to avoid the tedium and risk occasioned by an application for leave to appeal, the appellant was met bluntly this way:

“The statute relates to final judgments, and plaintiff has no judgment, but seeks direction, by this Court, to have his judgment reinstated. The mentioned rules, while requiring mandamus to be termed an appeal, do not change the law that it is an original writ, and that it does not issue without application and allowance.

“Leave to prosecute an appeal in the nature of mandamus was necessary and was not obtained. We, therefore, sua sponie, dismiss the appeal.”

That is what we should do here, sua sponie, if for no other reason than that of fairness to the hundreds of counsel who do comply with Court Rule No 60 (1945) when review of before-trial orders in law cases is sought.

Even if the Constitution — not some statute — “required” that we grant applications for writs of error, it seems to me that we should insist that the appeal-bent party submit an application under Court Rule No 60, just for the pro forma appearance of things in the records of a visibly bemused high court. When the language in question first appeared in said section 1 (by the act of 1917⁶), implemental Court Rule No 59 was at once adopted. Until superseded in 1931 by like requirement of Court Rule No 60, said Rule No 59 made clear the position of this Court that the statute required an “application” as a condition of its invocation.

“Rule 59. Any one desiring to secure a writ of error under the provisions of Act No 172 of the Public Acts of 1917, shall, within 30 days from the entry of judgment, prepare a concise statement of what is involved in the case and the points relied upon and notice the same on the opposite party for settlement before the circuit judge. The statement when so settled shall be the basis of the application to this Court.

“To take immediate effect.

“Adopted September 28, 1917.” (199 Mich xxx.)

Now let us assume that this plaintiff has filed formal and Rule No 60-compliant applications for writs of error to review Judge Neuenfelt’s orders. Such applications would be quite out of order because the constitutional writ of error is not and never was employable to review denial of interlocutory motions.

“The plaintiff’s attorney raises the point that the ease is not one which can be reviewed upon writ of error, and in this view we agree. The proceedings were interlocutory, and not final, and resulted in no final judgment against defendant. The province of a writ of error is to bring up for review final judgments or determinations, and it is not employed to bring up interlocutory decisions or discretionary orders made pending litigation. This has been declared in numerous decisions of this Court, some of which are the following: Holbrook v. Cook, 5 Mich 225; Chaffee v. Soldan, 5 Mich 242; Conrad v. Freeland, 18 Mich 255; Adams v. Church, 22 Mich 79; Polhemus v. Ann Arbor Savings Bank, 27 Mich 44; Comstock v. Wayne Circuit Judge, 30 Mich 98; Miller v. Rosier, 31 Mich 475.” Brady v. Toledo, A. A. & N. R. Co., 73 Mich 457.

“If the granting or refusing of an interlocutory motion can be so worked into the record as to authorize error to be assigned on it, by a mere statement in tbe decision like that made by tbe court below in this instance, then the common-law compo^ sition of the record and the generally admitted scope of a writ of error can be entirely changed by what in time will become a mere form, and the whole swarm of rulings upon pure practice questions and on points rightly and strictly depending on mere judicial discretion will be brought here for review. But we are satisfied that no such jurisdiction is conferred or ought to be.” Polhemus v. Ann Arbor Savings Bank, 27 Mich 44, 51.

The real trouble with meritorious review of these denied motions is that we are left with a complete want of adversary or independent submission of a grave and epochal question of responsiveness of a defendant to process allegedly served in Michigan by mail from another State; a question Justice Smith himself characterizes as “one of first impression in this jurisdiction.” We have no brief from these manifestly disinterested appellees and no brief from counsel amicus. Better, I suggest, that these cases be permitted their regular course in Detroit common pleas in order that an adequate record of fact and due trial come here for proper determination of the ever-present first question in appealed cases; whether the testimonially assembled facts do or do not present the questions of law the appellant would have us decide. Such is the only safe course for a State high court of last resort. What we write now without due care and thorough briefing may errantly decide hundreds and hundreds of cases in law office and lower court before the same question comes here again on sufficient presentation.

To summarise: An order denying motion for summary judgment is not final, either in circuit or common pleas. When, in such instance of denial, a trial of presented issues ensues and judgment is entered against the unsuccessful movant, he may review of right the final judgment and, by that means, test the order of denial. If he desires an earlier test, he must apply for leave under the rule.

Suppose this plaintiff, following entry of these orders in circuit, had unsuccessfully sought leave to appeal therefrom. Would our orders denying leave foreclose ultimate review of that which we at the time determined not to review? The answer is found in Malooly v. York Heating & Ventilating Corp., 270 Mich 240; Great Lakes Realty Corp. v. Peters, 336 Mich 325, and the opinion signed by Justices Smith, Edwards, Voelker, and Black, in Hack v. Concrete Wall Co., 350 Mich 118, 129, 130.

I would dismiss plaintiff’s appeals for want of application and grant of leave. Defendants, having filed no brief, should not be allowed costs.

Dethmbrs, C. J., and Carr, Kelly, and Kavanagh, JJ., concurred with Black, J.

1 See the presently quoted form of application we are “required” to grant.

4 “The greatest bane of appellate courts today, in my judgment, is the so-called ‘one-man’ opinion. I am referring to the situation where an opinion purports to be the decision and reflect the thinking of all of the judges on the appellate court but which in faet represents the view and work essentially of just one of the judges. Of all the defects in our appellate practice it is the most insidious for the simple reason that few lawyers or judges and virtually no laymen are even aware that it exists.” Chief Justice Vanderbilt, writing in 26 Cincinnati L Rev, Improving the Administration of Justice, p 257.

“Criticisms of appellate court decisions sometimes are that they rest on one-man opinions. If the judges are too busy, they may be driven to concentrating on the eases assigned to them for opinion writing, accepting, more or less as of course and without the necessary study and scrutiny, the decisions and opinions of their brothers in the other eases. This makes for one-man decisions, one-man opinions. There is no object in swapping what may be the erroneous decision of a trial judge for what may well be the equally erroneous decision of one appellate judge. What the parties and public want and are entitled to have, on appeal, is the composite judgment of the entire group of wise, skilled, and trained men, possessed of judicial temperament, who have been selected to sit on the court of last resort. In turn, the latter must not be placed on a beltline production basis.” Chief Justice Dethmers, writing in The Annals of American Academy of Political and Soeial Science, March issue, 1960, p 162.

6 PA 1917, No 172, quoted with other amendments of said section 1 in In re Fitch Drain No. 129, 346 Mich 81, 85, 86, 87.