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I. S. Canfield, for relator.
Elmer G. Smith, O'Brien & Francis and L. G. Dafoe, for respondent.
STONE, J. From the statement of facts by relator's counsel, and from the answer of the respondent, we gather the following facts: The relator, as plaintiff, obtained judgment in the circuit court against the Alpena Cedar Company, defendant, on Saturday, October 16, 1909. On Monday, October 18, 1909, an order was entered in the cause giving said defendant until the first day of the next March term of said court in which to move for a new trial, or settle a bill of exceptions, and staying proceedings upon said judgment upon condition that said defendant file an approved statutory stay bond within 20 days from the entry of said judgment. The statutory stay bond was duly filed. Upon the first day of the next March term of said court, to wit, on March 15, 1910, a motion for a new trial which had been duly entered and noticed was heard, and was denied on March 16, 1910, upon which last-named day an order was entered giving defendant 30 days further time to prepare and settle a bill of exceptions. Defendant prepared and served a proposed bill of exceptions, with a transcript of the testimony, upon counsel for relator on April 13, 1910, with a notice for settlement of the same before respondent on April 21, 1910. The proposed bill of exceptions was not settled on said April 21st, because relator's counsel had been unable to prepare his amendments thereto, and the settlement of the bill seems to have been indefinitely deferred by counsel. Prior to May 15, 1910, counsel for relator had prepared a number of amendments, and was proceeding with the preparation of further amendments, when one of defendant's counsel came to his office and borrowed and took away the proposed bill of exceptions and transcript of testimony, and kept the same until about September 9, 1910, when they were returned. It is a disputed question whether between May 15 and Sep
tember 9, 1910, defendant's counsel called the attention of relator's counsel to said matter.
On October 4, 1910, notice was served upon relator's counsel for settlement of said bill of exceptions on October 10, 1910, before respondent. On October 10th counsel for relator and for said defendant appeared before the respondent, when counsel for defendant presented a proposed bill of exceptions, with proof of service of the same on counsel for relator upon October 4, 1910. The settlement of such proposed bill of exceptions was then objected to by counsel for relator upon the ground, and for the reason, that no authority then existed to settle the same. No action was taken by respondent on that day. But on October 11, 1910, being the first day of the October term of said court, one of the counsel for said defendant called up the matter of the settlement of his said proposed bill of exceptions in open court, and, pending the consideration of the matter, served upon counsel for relator a motion for an order extending the time for the settlement of said bill of exceptions, which motion was noticed for hearing on October 15, 1910. Upon the 12th day of October, 1910, a writ of error was duly issued from this court, returnable November 11, 1910. A copy of the said motion with an affidavit upon which said motion is based, and also an affidavit in behalf of relator in opposition to said motion, appear in this record. Said motion came on to be heard before respondent in open court on said October 15, 1910. At the conclusion of the hearing, the respondent made an extending the time for the settlement of said bill of exceptions for 15 days from and including the day of the entry thereof. Upon the same day counsel for relator made and entered a motion to set aside said order extending the time for settlement of such proposed bill of exceptions, and, by consent of counsel, the same was brought on for hearing upon the same day, and was denied by the respondent. Whereupon, relator applied by petition to this court, and obtained an order requiring the respond
ent to show cause why the said order of October 15, 1910, granting said defendant 15 days from and after that day to settle a bill of exceptions, should not be set aside. The respondent has answered said petition.
An extension of time to move for a new trial or settle a bill of exceptions having been granted at the term at which the judgment was entered, it was valid for at least 80 days. Roach v. Wayne Circuit Judge, 117 Mich. 242 (75 N. W. 465). The motion for a new trial having been denied on March 16, 1910, the defendant in the case had a reasonable time thereafter for the settlement of a bill of exceptions. Harper v. Wayne Circuit Judge, 155 Mich. 543 (119 N. W. 913). He was granted 30 days by the respondent.
We are of opinion that after the expiration of the time above granted the respondent had the power, upon sufficient cause shown, after due notice to opposing counsel, to further extend the time for settling the bill of exceptions. In the recent case of Kaiser v. Wayne Circuit Judge, 162 Mich. 247 (127 N. W. 336), it will be noted that the order extending the time was made without cause being shown, and without notice. In 162 Mich. 250 (127 N. W. 922), a motion for rehearing was denied in the last-cited case, and the following language was used by Justice OSTRANDER:
"A rehearing is denied for the reason that the order of the court below extending the time in which to settle a bill of exceptions was properly set aside. But in so far as the opinion limits the right of the court to at any time entertain a motion, supported by affidavits, after due notice to opposing counsel, to extend the time for settling exceptions, we think it should be modified. We are impressed that, in view of some former decisions of the court, a rule upon this subject should be announced only in the form of a rule, to take effect in the future. The opinion therefore will be considered as deciding only the precise question presented by relator's motion."
The above being the last expression of this court upon the subject, it must control us here.
We will not review the judicial discretion of the respondent, the showing being sufficient to call for the exercise of his discretion, and such discretion having been exercised. Sanborn v. St. Clair Circuit Judge, 94 Mich. 526 (54 N. W. 295); Small v. Olds, 151 Mich. 113 (114 N. W. 872).
Writ denied, with costs.
OSTRANDER, C. J., and BIRD, HOOKER, and MOORE, JJ., concurred.
SCOTT v. SULLIVAN.
1. COURTS-Supreme Court—Quorum.
A majority of the five justices of the Supreme Court who decided a case may settle the formal decree.
A rehearing will not be granted because two of five justices who sat in a case have been removed by death, resignation, or expiration of term before the entry of a decree, where no dissenting opinion was filed.
Foreclosure proceedings by Emmet H. Scott against Thomas G. Sullivan and others. A motion for rehearing was filed and denied on May 7, 1910. On motion to vacate the order denying a rehearing and on objections to the settlement of a decree because two of five justices who decided the cause had ceased to hold office. Submitted July 14, 1910. (Calendar No. 23,610.) Denied February 1, 1911.
William G. Fitzpatrick and John J. Speed, for the motion.
Ball & Stone, contra.
HOOKER, J. I am of the opinion that a majority of the five judges who sat in this case may settle the formal decree whether others than those who sat may participate or not, which we do not decide, and whether the entry of a formal decree is more than a ministerial matter, if essential at all under article 6, § 10, Const. 1850 (article 7, § 7, of the Constitution of 1909), which we need not decide. This court was made a tribunal of eight justices by Act No. 250, Pub. Acts 1903. Previous to that time there were five, of whom three constituted a quorum (1 Comp. Laws, § 185), and two being a majority of the quorum their concurrence in an opinion was an adjudication. See 11 Cyc. p. 759. Three of five judges have sat in this court many times, notably during the long illness of the late Mr. Justice LONG. We append a list of some of said cases: Pokrefky v. Detroit Firemen's Fund Ass'n, 131 Mich. 40 (90 N. W. 689); In re Osborn, 131 Mich. 118 (90 N. W. 1029); Briggs v. McKinley, 131 Mich. 154 (91 N. W. 156); Carpenter v. Wood, 131 Mich. 314 (91 N. W. 162); Barber v. Eberle's Estate, 131 Mich. 317 (91 N. W. 123); White v. Schaberg, 131 Mich. 319 (91 N. W. 168); De Mary v. Burtenshaw's Estate, 131 Mich. 326 (91 N. W. 647); In re Angell, 131 Mich. 345 (91 N. W. 611). In the case of Chase v. Boughton, 93 Mich. 285 (54 N. W. 44), one of three dissented, yet the principles there laid down seem to have been considered stare decisis, the case having been cited in George v. Electric Light Co., 105 Mich. 5 (62 N. W. 985); Hall v. Nester, 122 Mich. 146 (80 N. W. 982); Perry v. Reed, 147 Mich. 147 (110 N. W. 529); and Fuller v. Bilz, 161 Mich. 589 (126 N. W. 712). By these provisions of the statute five now constitute a quorum, and when three of the five concur in an opinion it disposes of the case, and judgment