Macomber v. Cottrell

Moore, C. J.

This is an application for leave to substitute Esther Macomber as complainant and to amend the decree heretofore entered, and for other relief. The application is opposed for various reasons, and among these it is made to appear by affidavits that since the decree was entered, after due notice, the estate has been distributed, and the administrators de bonis non with the will annexed have been discharged.

This seems to be another phase of a very protracted litigation where a large estate is involved. A reading of the opinions therein rendered, which are found in Macomber v. Cottrell, 162 Mich. 91 (127 N. W. 402), Id., 162 Mich. 718 (128 N. W. 796), and Id., 171 Mich. 371 (139 N. W. 68), will afford a complete understanding of the questions involved.

One of the contentions of the solicitors for complainant is stated in the brief as follows :

“Section 549, subsec. 143, 1 Comp. Laws, as amended by Public Act No. 299 of 1909, p. 701, provides ‘ that when an appeal is taken from an order sustaining or overruling a general demurrer, the case shall, upon decision thereof by the Supreme Court, be remanded to the circuit court in chancery, and the complainant may amend his bill of complaint, within such time as the Supreme Court may prescribe and the cause shall then be disposed of as though no appeal had been taken.’ It would seem that the foregoing statute is mandatory, and that any decree not in harmony therewith is a nullity, and should be disregarded by the court.”

A claim, substantially the same, was made before in this case. In discussing it Justice Hooker, speaking for the court, said:

“We are of the opinion that it (the statute relied upon) should be construed to be declaratory of the pre-existing practice in circuit courts and its application to cases in this court upon appeal, the question being heard de novo, and that it was not the intention to make the giving an opportunity to amend mandatory in all cases. The rule has never been so construed although the language seems to be equally broad. We see no reason for giving the statute a different construction from that given the rule. We must, therefore, overrule the first ground (the ground now taken in the solicitor’s brief) relied on.” Macomber v. Cottrell, 162 Mich. 719 (128 N. W. 797).

Every phase of the case as presented by the motion has been passed upon by this court.

The motion is denied, with costs.

Steers, McAlvay, Brooke, Stone, and Ostrander, JJ., concurred with Moore, O. J.