Michigan Trust Co. v. Hoffman

Per Curiam.

Appointed by the probate court under Act No. 253, Public Acts of 1899 (4 How. Stat. [2d Ed.] § 10710 et seq.), trustee of an estate belonging to himself and his brother, the estate being created by the will of their father, Clayton H. Hoffman filed certain accounts in probate court at the instance of the administrator of his brother’s estate and the guardian of his infant child. After a hearing in probate court, an appeal from the order entered was taken to the circuit court. In the circuit court the cause was tried by the court without a jury. A finding was requested and was made and filed. Appellants, the administrator and guardian, filed exceptions and moved to amend the finding. One additional finding was made; in other respects the motion was denied. Exceptions were filed to the refusal to amend the finding as requested. A judgment was entered, and the record is brought into this court for review upon assignments of error 33 in number.

An examination of the brief for appellants and of the errors assigned suggests the inquiry whether there is any point properly open to review in this court. Neither party presented to the trial court points of law to be passed upon as the rule permitted them to do.

It is alleged as error that the facts found do not support the judgment. It is not alleged, either in exceptions or assignments of error, that any finding is wholly unsupported by evidence. It is alleged in some of the exceptions, and restated in the assignments of error, that certain findings “are contrary to the fact and the evidence in said cause.” To this allegation there is added, in some instances: “And is erroneous in law.” It is assigned as error (assignments 19-29) that the court refused to amend the finding as requested, but these and most of the other assignments rest ultimately upon what the facts are found to be. No objection is made to the form or extent of the findings. Circuit Court Rule 26 reads, in part, as follows:

“(d) The finding of the facts by the court shall be treated in all respects as a special verdict, and error may be alleged that the same does not support the judgment, as on a special verdict.”

It is only where there is a total want of evidence or where the finding is contrary to the undisputed evidence that the facts found by the trial court can be overturned. Upon this point the decisions of this court have been many times repeated. See notes to Stevens’ Rules of Practice (2d Ed.).

The first two assignments of error are based upon rulings admitting testimony. We do not find either discussed in the brief. The assignment that the facts found do not support the judgment, which is open for our consideration, does not appear to be discussed in the brief.

We therefore affirm the judgment.