Mondou v. Lincoln Mut. Casualty Co. , 283 Mich. 353 ( 1938 )

Plaintiff sued the principal defendant, Rousse, for damages alleged to have resulted from being hit by defendant Rousse's automobile. She recovered judgment.

The Lincoln Mutual Casualty Company carried insurance on defendant Rousse's automobile which, at the time of the injury to plaintiff, was being driven by an unlicensed driver. The garnishee defendant, Lincoln Mutual Casualty Company, defended the principal case and denied liability on the ground it was not, under the terms of the policy, liable to plaintiff, the automobile of the principal defendant having been driven at the time of the injury by an unlicensed driver.

Plaintiff claims the garnishee defendant is liable. The trial court so held, and the defendant Lincoln Mutual Casualty Company appeals.

The trial court filed an opinion herein dated May 13, 1937. Claim of appeal was filed, dated June 1, 1937, "from the decree entered on the 13th day of May, 1937." Judgment was entered June 3, 1937. There was no claim of appeal filed from the judgment, but only "from the decree entered on the 13th day of May, 1937." No decree was entered on that date, or on any other date. The only thing the record shows done May 13, 1937, was the dating of the trial court's opinion filed May 15, 1937. The claim of appeal was from something which preceded final judgment.

The rules of court refer to the method of review but do not restrict, enlarge or change the right or scope of review provided by law except as explicitly set out in the rules. Court Rule No. 55 (1933); Jenkins v. Stewart, 271 Mich. 522.

An appeal is perfected on filing a claim of appeal with the court, tribunal or officer whose action is to be reviewed. When the appeal is so perfected, the Supreme Court shall have jurisdiction of the case. Court Rule No. 56, § 1, subds. (a) and (b) (1933); Hoffman v. Security Trust Co. ofDetroit, 256 Mich. 383; Weber v. Enoch C. Roberts Iron Ore Co.,270 Mich. 38.

The garnishee defendant having filed a claim of appeal as above mentioned, such appeal transferred jurisdiction to this court if it has jurisdiction of this case. The statement by the garnishee defendant that it "appeals from the judgment in favor of the plaintiff" in its reasons and grounds for appeal and bill of exceptions, settled under Court Rule No. 66 (1933), cannot operate to modify the claim of appeal or confer jurisdiction upon this court where it had none by the claim of appeal.

No appeal lies from an opinion of the trial court. Appeals at law are a substitute for the constitutional writ of error and, in the absence of express authorization, an appeal at law will lie only from a final judgment. People, ex rel. Green, v. EatonProbate Judge, 40 Mich. 244; Brady v. Railroad Co., 73 Mich. 457; Steel v. Clinton Circuit Judge, 133 Mich. 695; Delaney v. Michigan Elm Hoop Lumber Co., 144 Mich. 351; Barribeau v.City of Detroit, 146 Mich. 392; In re Vetter's Estate,162 Mich. 109; Bancroft v. Board of Regents of University ofMichigan, 192 Mich. 168; Backus v. Trumbull Motor Car Co.,194 Mich. 199; Lewis v. Bricker, 232 Mich. 388; Jirasek v. WayneCircuit Judge, 248 Mich. 676. The rights of the parties must be determined as of the date of the claim of appeal and by the claim of appeal filed by appellant. One may not file an appeal first and obtain judgment afterward. This is in accordance with the established rules of pleading. Hovey v. Sebring, 24 Mich. 232 (9 Am. Rep. 122); Blackwood v. Brown, 29 Mich. 483;Moyer v. Scott, 30 Mich. 345; Carpenter v. Harris, 51 Mich. 223; Schwier v. Atlas AssuranceCo., 227 Mich. 104; Waubun Beach Ass'n v. Wilson, 274 Mich. 598 (103 A.L.R. 983); 1 C. J. p. 1149; 1 C.J.S. p. 1393; 1 R. C. L. p. 340. Where an appeal is taken from something not appealable, or is taken before the right of appeal accrues, it should be dismissed for want of jurisdiction. 4 C.J.S. pp. 936, 937.

It may be said the jurisdictional question is not raised by appellee. A court is a tribunal, not an arbitrator. Consent of the parties cannot confer jurisdiction on the court. Its acts without jurisdiction are not judicial acts. Beach v. Botsford, 1 Doug. (Mich.) 199 (40 Am. Dec. 45); Clark v. Holmes, 1. Doug. (Mich.) 390; Spear v. Carter, 1 Mich. 19 (48 Am. Dec. 688); Wilson v. Davis, 1 Mich. 156;Farrand v. Bentley, 6 Mich. 281; Allen v. Carpenter, 15 Mich. 25;Moore v. Ellis, 18 Mich. 77; Youngblood v. Sexton, 32 Mich. 406 (20 Am. Rep. 654); Thompson v. Michigan Mutual BenefitAss'n, 52 Mich. 522; Kirkwood v. Hoxie, 95 Mich. 62 (35 Am. St. Rep. 549); Peninsular Savings Bank v. Ward, 118 Mich. 87; Hull v. Hull, 149 Mich. 500; Bradfield v.Bradfield, 154 Mich. 115 (129 Am. St. Rep. 468); Maslen v.Anderson, 163 Mich. 477; People v. Meloche, 186 Mich. 536;Carpenter v. Dennison, 208 Mich. 441. The question of jurisdiction of the subject-matter may be raised at any time.Greenvault v. Farmers' Mechanics' Bank of Michigan, 2 Doug. (Mich.) 498; Farrand v. Bentley, supra; Attorney General, exrel. Lockwood, v. Moliter, 26 Mich. 444; Adams v.Hubbard, 30 Mich. 104; Woodruff v. Ives, 34 Mich. 320; Horton v. Howard, 79 Mich. 642 (19 Am. St. Rep. 198);Tromble v. Hoffman, 130 Mich. 676; Attorney General, ex rel.Wolverine Fish Co., v. A. Booth Co., 143 Mich. 89; 15 C. J. p. 847.

The objection that a court is without jurisdiction cannot be waived by the parties. 17 Am. Eng. Enc. Law (2d Ed.), p. 1062. It is the duty of the court to raise the question of jurisdiction on its own motion.

"On every writ of error or appeal, the first and fundamental question is that of jurisdiction, first, of this court, and then of the court from which the record comes. This question the court is bound to ask and answer for itself, even when not otherwise suggested, and without respect to the relation of the parties to it." Mansfield C. L. M. R. Co. v. Swan,111 U.S. 379, 382 (4 Sup. Ct. 510).

"If the record discloses a controversy of which the court cannot properly take cognizance, its duty is to proceed no further and to dismiss the suit." Morris v. Gilmer,129 U.S. 315, 325 (9 Sup. Ct. 289).

"A court may of its own motion, even though the question is not raised by the pleadings or is not suggested by counsel, recognize the want of jurisdiction, and it is its duty to act accordingly by staying proceedings, dismissing the action, or otherwise noticing the defect, at any stage of the proceedings." 15 C. J. p. 852.

The claim of appeal here was "from the decree entered on the 13th day of May, 1937." Judgment was entered June 3, 1937. No claim of appeal was made from that judgment. There is nothing before this court to review. In principle, this case is governed by Brown v. Adler, 282 Mich. 264.

Appeal should be dismissed, with costs.

SHARPE, J., concurred with POTTER, J. FEAD, J., took no part in this decision.