Opinion
Docket No. 89, Calendar No. 34,470.
Submitted October 15, 1929.
Decided January 24, 1930.
Appeal from Wayne; Cross (Orien S.), J., presiding. Submitted October 15, 1929. (Docket No. 89, Calendar No. 34,470.) Decided January 24, 1930.
Bill by Elias Skibe against Frona Johnson and Edward Goodspeed to set aside a judgment rendered in justice's court. From a decree for plaintiff, defendant Johnson appeals. Reversed, and decree entered dismissing bill of complaint.
Peirson Peirson and M.E. Tripp, for appellants.
This is a bill to set aside a judgment rendered in justice's court in the city of Detroit.
The testimony is undisputed that, on August 20, 1925, an adjourned day of the case in justice's court, counsel for the parties orally agreed to a continuance, that upon suggestion of Mr. Burleigh, attorney for defendants herein, Mr. Lane, attorney for this plaintiff, went to Mr. Burleigh's office, drafted a stipulation of continuance, signed it, and left it with a clerk for Mr. Burleigh to sign and file. The stipulation was not filed, but, on the same day, Mr. Burleigh's partner or associate took judgment in favor of these defendants and against this plaintiff for $500 and costs. Plaintiff and his attorney first knew of the judgment about two weeks after it was rendered, when an officer appeared with an execution.
In his bill, plaintiff alleged irreparable injury unless an injunction be issued restraining levy of execution until he could move for leave to appeal, the time for appeal as of right having expired. The court granted a temporary injunction on that basis. The cash injunction bond was conditioned on leave to appeal being granted. The bill was filed September 10, 1925. Hearing was had September 18, 1928. No motion for leave to appeal was made and no excuse offered for not making it.
The surreptitious taking of judgment in violation of an agreement for continuance is a fraud. 34 C. J. p. 477. Equity has jurisdiction to set aside a justice's judgment for fraud. Burpee v. Smith, Walk. Ch. 327; Garey v. Morley Brothers, 234 Mich. 675; 34 C. J. p. 440; 35 C. J. p. 680. But the jurisdiction is to be sparingly used. Blazewicz v. Weberski, 234 Mich. 431. The jurisdiction will not be exercised where plaintiff has been negligent in conserving his rights at law ( Weisman v. Newton Beef Co., 154 Mich. 511; Kramer v. Schulte, 154 Mich. 632), nor where he has an adequate remedy at law (34 C. J. p. 434, 35 C. J. p. 681), as by appeal, error, or certiorari (34 C. J. p. 436).
If plaintiff had presented a motion for leave to appeal and had established the facts which he has here substantiated, the motion would have been granted. Capwell v. Baxter, 58 Mich. 571 . The remedy at law was adequate. No reason was offered for failure to pursue it. On the contrary, the equities are against plaintiff in this respect. His failure to move for leave to appeal, after obtaining an injunction for that purpose, was a virtual breach of faith with the court.
The decree is reversed, and one will be entered dismissing the bill of complaint, with permission to defendants to proceed upon the injunction bond, and with costs.
WIEST, C.J., and BUTZEL, CLARK, POTTER, SHARPE, and NORTH, JJ., concurred. McDONALD, J., took no part in this decision.