Citation Numbers: 54 Mich. 318
Judges: Cooley, Other
Filed Date: 6/25/1884
Status: Precedential
Modified Date: 9/8/2022
The application in this case is for a mandamus to require the judge of the Allegan circuit court to recall an execution issued on a decree in chancery.
It appears by the petition and the judge’s return that on • June 16, 1879, Columbia H. Long filed in the circuit court for the county of Allegan, in chancery, her bill for an accounting of the partnership affairs between herself and Theodore Castor and Spencer Strong. Answer was filed to the bill and issue taken upon it, and such proceedings were afterwards had that the case was referred to a circuit court commissioner to take and state an account. The commis
March 14, 1884, while the testimony in the case, together with the ledger, journals, and day-books of the partnership, containing the original entries of purchases and sales, the original inventory of the stock of goods and of the stock remaining after eighteen months’ business, were all in the office of the commissioner, the building in which the office was situate took fire and they were all destroyed.
March 28, 1884, complainant had his costs duly taxed. lie then had the decree enrolled and took out execution, which was levied upon property of the defendant, April 17. The defendant Castor then made affidavit and moved to set aside ■the execution. His affidavit states that the decree in the case was rendered in vacation, “ and filed with the register of this •court on, to wit, the 16th day of February, 1884, which fact deponent has learned since the levy aforesaid that no written notice of the decree has been served by the register or by •complainant’s solicitor; that he is advised he has forty days from the time of notice of such decree in which to appeal from the decree; and that he is desirous of taking an appeal, and intends so to do if not prevented by the acts of com
The circuit judge could not be required to vacate the order made by him on May 1, unless it was erroneous when made;; and it was not erroneous when made unless the defendant had at that time taken an appeal. The mere fact that defendant Castor intended to take an appeal did not preclude the complainant from taking an execution. The motion must therefore be denied. Whether the filing of an appeal bond, May 14 was in time is a question which does not arise now,, as the action of the circuit judge which was complained of was prior to that date.