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may be entered upon the opinion although only three concur, and if no motion for rehearing be made it stands as valid as any judgment or decree. We have even held that four out of seven not only may make a valid judgment, but that it is stare decisis. Dolph v. Norton, 158 Mich. 422 (123 N. W. 13). If it may be done while the dissenting justices are members of the court and against their protest by a bare majority of one, there would seem no reason why it cannot be done by three after two of the concurring judges have been removed by death, resignation, or expiration of term.
The settling of a decree is apparently considered so far ministerial that it is usually done by a single judge, viz., the writer of the opinion, and is expected to follow the opinion. He may or may not call in one or more of those who sat, but in any case where it is proposed to change the opinion, or disregard its provisions, a rehearing, formal or informal, before a quorum, is deemed necessary.
The statute gives the right to a rehearing only when the five sitting justices do not all concur in the opinion:
"Whenever there shall be filed a dissenting opinion in a case heard by a quorum of five judges only, the parties therein shall have a right to a rehearing before the entire bench upon making a proper application therefor." Act 250, Pub. Acts 1903.
Were the rule as contended for by counsel asking the rehearing, a sudden death of a judge might make many rehearings necessary. The motion should be denied.
OSTRANDER, C. J., and BIRD, MCALVAY, MOORE, BROOKE, BLAIR, and STONE, JJ., concurred.
OLDS MOTOR WORKS v. WAYNE CIRCUIT JUDGE.
MANDAMUS-APPEAL AND ERROR-BILL OF PARTICULARS-MOTION FOR MORE SPECIFIC BILL.
The denial by a trial court of defendant's motion for a more specific bill of particulars is reviewable by writ of error, not by mandamus; since the former remedy is adequate.
Mandamus by the Olds Motor Works to compel James O. Murfin, one of the circuit judges of Wayne county, to set aside an order denying relator's motion for a more specific bill of particulars, in an action of assumpsit; and to enter an order requiring the same. Submitted December 30, 1910. (Calendar No. 24,342.) Writ denied February 1, 1911.
Standish Backus, for relator.
Prentis & Mulford, for respondent.
BIRD, J. Relator makes this application for a writ of mandamus to compel a more specific bill of particulars to be filed in the case of William T. Taylor v. Olds Motor Works, which is now pending in the Wayne circuit court. Taylor began suit in assumpsit against the defendant, the Olds Motor Works, to recover the balance which he claims is due him upon a contract of employment. He filed his declaration, which contained the common counts and four special counts. A bill of particulars was filed in response to defendant's demand. After the same was filed, a motion was made by relator for a more specific bill of particulars. The trial judge denied the motion. Plaintiff then asked this court for a writ of mandamus to compel the circuit judge to set aside his order and enter one in accordance with the prayer of his motion.
In view of the repeated refusals of this court to review by writ of mandamus interlocutory orders, where the
remedy by writ of error was adequate, we feel obliged to decline to consider this application upon its merits. In arriving at this conclusion, we have considered the two cases cited by relator (Anti-Kalsomine Co. v. Kent Circuit Judge, 119 Mich. 434 [78 N. W. 467]; Hamilton v. Ingham Circut Judge, 84 Mich. 393 [47 N. W. 681]) in which a like question was reviewed by mandamus; but in those cases the question of the remedy was neither raised nor discussed. But the foregoing rule has been declared so frequently in recent cases that we feel it should be followed. Some of the cases in which the rule is declared are Lyle v. Cass Circuit Judge, 157 Mich. 33 (121 N. W. 306); Geddis v. Wayne Circuit Judge, 151 Mich. 122 (114 N. W. 874); Reynolds v. Mecosta Circuit Judge, 148 Mich. 470 (111 N. W. 1038); City of Flint v. Genesee Circuit Judge, 146 Mich. 439 (109 N. W. 769); Cosgrove v. Wayne Circuit Judge, 144 Mich. 682 (108 N. W. 361); Hitchcock v. Wayne Circuit Judge, 144 Mich. 362 (107 N. W. 1123); Sharp v. Montcalm Circuit Judge, 144 Mich. 328 (107 N. W. 874); Jones v. Wayne Circuit Judge, 141 Mich. 408 (104 N. W. 692); Valley City Desk Co. v. Kent Circuit Judge, 139 Mich. 194 (102 N. W. 651); Hopper v. Livingston Probate Judge, 137 Mich. 124 (100 N. W. 266); Skutt v. Kent Circuit Judge, 136 Mich. 477 (99 N. W. 405); Cattermole v. Ionia Circuit Judge, 136 Mich. 274 (99 N. W. 1); Steel v. Clinton Circuit Judge, 133 Mich. 695 (95 N. W. 993); Poupard v. Judge of Recorder's Court, 129 Mich. 662 (89 N. W. 577); Dages v. Sanilac Circuit Judge, 122 Mich. 490 (81 N. W. 355); St. Clair Tunnel Co. v. St. Clair Circuit Judge, 114 Mich. 417 (72 N. W. 249); Michigan Mut. Fire Ins. Co. v. Wayne Circuit Judge, 112 Mich. 270 (70 N. W. 582). The application for the writ is denied.
HOOKER, MOORE, MCALVAY, and BROOKE, JJ., concurred.
In re SATT.
- COMMITMENT - VERDICT
1. CRIMINAL LAW IRREGULARITIES. While a commitment of petitioner in habeas corpus insufficiently described his offense as "uttering and publishing a forged and counterfeit instrument at," etc., and while the verdict of the jury contained the same phraseology, which was not amplified or corrected by the judgment entry, the want of a complete recital of the offense of which he was found guilty, under a sufficient information, does not war. rant his release on habeas corpus.
2. SAME-APPEAL AND ERROR-HABEAS CORPUS.
Such irregularities do not nullify the judgment and are only reviewable in a court of errors.
3. SAME-PROBATIONS-SENTENCE-DISCRETION OF TRIAL COURT. Where respondent was released on probation under Act No. 91, Pub. Acts 1903, as amended by Act No. 32, Pub. Acts 1905, and left the State, although by permission of one of the judges of the court which convicted him, a sentence thereafter imposed, on the ground that he had violated his parole, without specifying that he had violated his parole by leaving the State, was not a nullity.
Habeas corpus by Louis Satt against James Russell, warden of the branch of the State's prison at Marquette, to determine the legality of petitioner's detention. Writ issued December 3, 1910. Submitted January 3, 1911. (Calendar No. 24,395.) Decided and prisoner remanded into custody February 1, 1911.
Louis Satt, in pro. per.
Franz C. Kuhn, Attorney General (George S. Law, Assistant Attorney General, of counsel), for the people.
OSTRANDER, C. J. The return made by the warden shows that the petitioner is in custody by virtue of a commitment issued out of the recorder's court of the city of
Detroit, and a copy of the commitment is exhibited. It recites that on November 10, 1908, upon his plea of not guilty and after trial, respondent was convicted "of having on the 17th day of September, A. D. 1908, committed the crime of uttering and publishing a forged and counterfeit instrument at the city of Detroit, county of Wayne, Michigan," and on August 30, 1909, said court determined and adjudged that he should be committed to the State's prison at Marquette for a period of not less than 7 years and not more than 14 years. Petitioner having produced a certified copy of the record of his trial and conviction, and the attorney general having agreed that the correct record is exhibited, we have examined it. In re Lewis, 124 Mich. 199 (82 N. W. 816). The examination discloses that petitioner was informed against for an offense described in 3 Comp. Laws, § 11660, upon conviction of which the sentence which was imposed may be lawfully imposed. It also discloses that the jury found the petitioner guilty "of uttering and publishing a forged and counterfeit instrument." The judgment entry does not contain any recital correcting, or in any manner aiding, the record of the verdict. In fact, the petitioner was at first enlarged upon probation, in charge of a probation officer, to appear for sentence on March 3, 1910. This, by an order made March 3, 1909. The judgment entry is: At a session of the recorder's court of the city of Detroit, held in and for said city, at the courtroom of said court, on Monday the 30th day of August in the year of our Lord, nineteen hundred and nine.
"Present: Hon. James Phelan, recorder of the city of Detroit, and Hon. William F. Connolly, judge of the recorder's court of the city of Detroit.
"File No. 13,945.
"The People of the State of Michigan
"Said defendant having violated the terms of his parole is this day brought into court for sentence, and having