O'Brien v. Judge of Recorder's Court , 234 Mich. 554 ( 1926 )

Proceedings pursuant to its charter were taken by the city of Detroit before the defendant to condemn certain lands owned by O'Brien and Trossel (hereafter called the plaintiffs) and others for the purpose of opening, widening, and extending what is known as the Vernor highway. A jury was impaneled on May 25, 1924, and made an award on December 19, 1924, finding a necessity for the improvement and fixing the compensation to be paid to the several owners. This award, as to the plaintiffs, was set aside on stipulation and a new trial granted as to the compensation to be awarded. A second jury was impaneled on March 11, 1925, and made its award on July 24, 1925, fixing the compensation to which plaintiffs were entitled at $45,843.23 and $85,100, respectively. On July 25th, the city filed a motion for a new trial. An order granting same as to both plaintiffs was made by defendant on October 8th. By separate petitions plaintiffs ask that defendant be required by mandamus to set aside this order. Orders to show cause were issued, to which defendant has made returns.

In his returns defendant insists that as a judge of the recorder's court he has the inherent power to set aside and vacate a verdict rendered in his court for any "good and sufficient cause which may come to him in his capacity as judge of said court." A consideration of the question discloses that the members of this court are not in agreement as to the answer which should be given thereto. As we are all of the opinion that the action of the defendant should be sustained, and as it is important that the cases should be speedily disposed of by us, we refrain from a discussion of this question.

The award as to both plaintiffs was in the same proceeding. It was the duty of the jury to fix the compensation fairly and equitably as to both of them. If the jury were in any way affected by matters deemed by the court to be improper in determining the value of Trossel's property, it can but be inferred that it also affected the award as to O'Brien.

It appeared that one of the jurors was a half-brother of the wife of Trossel's brother. On his voir dire examination he stated that he was not a relative of Trossel. While this answer was strictly true, the defendant felt that the juror, in fairness to the parties, should have disclosed the facts.

The motion was supported by an affidavit, in which the witness deposed that the verdict was excessive. It is true that the affiant was a witness for the city on the trial and testified as to the value of the property to be taken. We are impressed that the facts presented to the defendant necessitated the exercise of a judicial discretion on his part in granting or denying the motion. His determination, based thereon, that a new trial should be granted, will not be interfered with by us on mandamus. People v. Branch CircuitJudge, 17 Mich. 67; Detroit Tug Wrecking Co. v. Wayne CircuitJudge, 75 Mich. 360; Reynolds v. Newaygo Circuit Judge,109 Mich. 403; Fort Wayne, etc., R. Co. v. Wayne Circuit Judge,110 Mich. 173; Hayes v. Ionia Circuit Judge, 125 Mich. 277; GeneralNecessities Corp. v. Wayne Circuit Judge, 214 Mich. 138;Breisacher v. Judge of Recorder's Court, 223 Mich. 254.

The writs are denied. Defendant will have costs.

BIRD, C.J., and SNOW, STEERE, FELLOWS, WIEST, CLARK, and McDONALD, JJ., concurred.