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tory one, also justifies the construction given in these cases. We cannot construe this exemption so as to include the 41 acres without doing violence to plain, unambiguous language. We are of the opinion that of the premises were exempt as a homestead, and as the homestead has been converted into a fund now in court by stipulation, it follows that of the fund are exempt from legal process.
It is also insisted that plaintiff has waived her exemption by a failure to claim it: We cannot agree with counsel in this contention. If the land had been levied upon while she owned it, she would not have been obliged to make a selection of her homestead until an appraisal was made and presented to her by the officer making the levy. Riggs v. Sterling, 60 Mich. 643 (27 N. W. 705, 1 Am. St. Rep. 554). As soon as the proceeds of the sale were attacked, she filed this bill claiming her homestead rights. We do not see how she could have claimed her exemption sooner. She claimed it at the first opportunity she had after she knew that defendant Horton was taking steps to subject the proceeds of her home to the payment of his claim.
The decree will be modified, as herein indicated, and affirmed, with costs to the defendant.
MCALVAY, BROOKE, BLAIR, and STONE, JJ., concurred.
HARTZ v. WAYNE CIRCUIT JUDGE.
1. MANDAMUS-CERTIORARI-APPEAL AND ERROR.
A finding of the circuit court, on certiorari, for the purpose of reviewing proceedings to lay out a highway, that no error was shown that would require a reversal of the action of the defendant highway commissioner, constitutes a final judgment, reviewable on error or certiorari in the Supreme Court.
2. SAME-ADEQUATE REMEDY-JUDGMENT.
Mandamus is not the proper remedy to revise a final judgment on matters of record, which may be returned and examined on certiorari.
Mandamus by John C. Hartz against James O. Murfin, circuit judge of Wayne county, to compel the respondent to vacate an order dismissing a writ of certiorari and to quash certain proceedings of Berton D. Brown, highway commissioner, to open a highway. Submitted November 29, 1910. (Calendar No. 24,272.) Writ denied December 22, 1910.
Keena, Lightner & Oxtoby, for relator.
C. C. Yerkes, for respondent.
STONE, J. In this cause petitioner seeks to review by mandamus the action of the circuit judge in dismissing proceedings pending in the circuit court upon certiorari issued to the commissioner of highways of the township of Plymouth, and the clerk of said township, whereby petitioner sought to review certain proceedings had for the purpose of opening a highway in said township. An order to show cause was granted herein, and the respondent has answered.
It appears that the circuit judge disposed of the certiorari case upon its merits, as will appear by the following excerpt from his written finding:
"A re-examination of the record and of the case, is convincing that no error affirmatively appears such as requires a reversal. For that reason the writ of certiorari may be dismissed."
It is very clear that this was a final judgment upon the merits of the case.
Counsel for respondent contends that petitioner is in error in attempting to bring the case to this court by mandamus, and that his proper remedy, if any, is by writ of error, or certiorari.
It is settled by a long line of decisions in this State that mandamus is not the proper proceeding where the relief sought is the revision of a final judgment of matters of record, and where everything necessary to a determination may be returned on a writ of certiorari. Wiley v. Allegan Circuit Judge, 29 Mich. 487; Mabley v. Judge of Superior Court, 32 Mich. 190; O'Brien v. Tallman, 36 Mich. 13; Stall v. Diamond, 37 Mich. 429; Olson v. Muskegon Circuit Judge, 49 Mich. 85 (13 N. W. 369); Reed v. St. Clair Circuit Judge, 122 Mich. 153 (80 N. W. 985); Dages v. Sanilac Circuit Judge, 122 Mich. 490 (81 N. W. 355).
In the last-cited case it was held that mandamus will not lie to compel a circuit judge to vacate an order quashing, with costs, a writ of replevin, since the order is final, and reviewable on error. To the same effect is Cattermole v. Ionia Circuit Judge, 136 Mich. 274 (99 N. W. 1), relating to an order quashing a writ of capias ad respondendum.
Unless the writ of certiorari is to lose its office, it should be resorted to here. The writ will be denied on this ground.
BIRD, C. J., and OSTRANDER, HOOKER, and MOORE, JJ., concurred.
MOINTIRE v. CARR.
1. COMPROMISE AND SETTLEMENT-TENDER-Pleading-CONTRACTS. In an action of assumpsit for breach of a contract, an offer of compromise which was shown by the evidence, and which was a substantial compliance with the contract alleged in plaintiff's declaration, but was not treated by the party making the offer as a tender, and was made only for the purpose of avoiding litigation, being accepted by plaintiff and then withdrawn by defendant, did not constitute a tender, or a sufficient defense to plaintiff's cause of action.
2. CONTRACTS-ASSUMPSIT-PLEADING-CORPORATE STOCK. Allegations of a declaration state a cause of action where the pleading shows that defendant agreed with plaintiff to form a corporation and transfer certain stock to plaintiff, and give him an interest in other stock in consideration of his associating himself in the enterprise, that plaintiff entered upon the performance of his part of the agreement, and that the business had been conducted profitably, but defendant had refused and neglected, although often requested, to perform the said contract.
Error to Saginaw; Kendrick, J. Submitted November 28, 1910. (Docket No. 92.) Decided December 22, 1910.
Assumpsit by Arthur F. McIntire against Henry W. Carr, for breach of contract. A judgment for defendant upon a motion and objection to the introduction of evidence under the pleadings, is reviewed by the plaintiff on writ of error. Reversed.
John A. McKay (James H. Davitt, of counsel), for appellant.
Beach, O'Keefe & Rockwith, for appellee.
MOORE, J. From a directed verdict the plaintiff has brought the case here by writ of error. We quote from the first count of the declaration of the plaintiff :
"For that whereas the said plaintiff is and has heretofore for 15 months or thereabouts been a resident of the city of Saginaw, in said county, where, on or about, to wit, the 8th day of August, 1907, he entered the employment of the Saginaw Milling Company, a Michigan corporation, having its head office at Saginaw, Michigan, and engaged in a general flour and other milling business, and in the business of buying, selling and dealing in grain, hay, beans, vegetables and other farm products, and leasing, owning and operating elevators at various places in Michigan for carrying on its said business, and at the time this plaintiff entered the employment of said Saginaw Milling Company Henry W. Carr, the said defendant, was its general manager and had been such general manager for a number of years previous, to wit, fourteen years, and this plaintiff became assistant to the general manager, and continued in the employment of said Saginaw Milling Company as assistant to the said defendant, Henry W. Carr, until on or about, to wit, the 13th day of April, 1908, when, relying upon the inducements and promises hereinafter fully set forth, held out and made to him by said Henry W. Carr, who had resigned his position of general manager of said Saginaw Milling Company, to engage on his own account in the business of grain and mechandise broker, buying and selling on commission, grain, hay, and other farm products and furnishing to elevators, shippers and others, farm and other supplies, consisting of coal, salt, cement, brick, tile, lime, etc., * * * which said inducement and promises of said defendant, by which he prevailed upon this plaintiff to resign his position with said Saginaw Milling Company and forego the prospects which it offered and had held out to him, and to co-operate and associate himself with said defendant, were, that in consideration of the plaintiff's cooperating with the defendant and associating himself in said business with the defendant, and in consideration of and in return for the assistance, knowledge, experience and good will of the plaintiff, which were all of a practical character and value in the organization of said new business, said defendant promised and undertook to organize said business as a corporation with a total capital stock of $50,000, and to transfer to this plaintiff certain interests therein, to wit, capital stock therein to the par value of $1,000, of the value of $1,000, the income on $5,000 par value of said capital stock for two years of the