Opinion
Docket No. 21798.
Decided February 2, 1977.
Appeal from Wayne, Charles Kaufman, J. Submitted October 6, 1976, at Detroit. (Docket No. 21798.) Decided February 2, 1977.
Kathy L. Lane was convicted of manslaughter. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Patricia J. Boyle, Principal Attorney, Research, Training Appeals, and Lee William Atkinson, Assistant Prosecuting Attorney, for the people.
Brown, Baltimore Stephens, P.C., for defendant.
Before: V.J. BRENNAN, P.J., and BRONSON and BASHARA, JJ.
The appellant was convicted by a jury of manslaughter, MCLA 750.321; MSA 28.553, and appeals.
The appellant was arrested and charged with felony murder. A preliminary examination was conducted on October 9, 1973, before a Highland Park municipal judge. At the close of the hearing the magistrate dismissed the charges against the appellant.
On February 14, 1974, the people filed a civil action in circuit court against the examining magistrate. The action sought an order for superintending control requiring the magistrate to perform a clear legal duty and bind the appellant over on either the charge of felony murder, or first- or second-degree murder.
A hearing was held and the circuit judge found that the appellant should have been bound over for trial on a first-degree murder charge. The court set aside the order of the magistrate dismissing the charge against appellant, and ordered the magistrate to bind the appellant over for trial.
The appellant raises a number of issues regarding the superintending control action. No appeal was ever taken from that action. It appears that the appellant is impermissibly attempting to collaterally attack the superintending control judgment. Cf. People v Pickett, 391 Mich. 305; 215 N.W.2d 695 (1974), State ex rel Ingham County Prosecutor v American Amusement Co, Inc, 71 Mich. App. 130; 246 N.W.2d 684 (1976). However, because the issues raised are of first impression, they will be discussed in this appeal solely to provide future guidance.
Appellant argues that she was denied due process of law because she was not provided with notice of the superintending control hearing. The record does not bear out appellant's assertions.
A proof of service discloses that the appellant was personally served on February 15, 1974, with a copy of the complaint, an order to show cause, and a notice of hearing. Likewise, appellant's attorney of record was served by mail on February 15, 1974. It does not appear that either the appellant or her attorney attempted to attend the hearing. Under these circumstances we find no deprivation of due process of law.
Appellant's attorney of record filed a petition to withdraw as counsel on March 17, 1974, and it was granted the same day.
Appellant further contends that she should have been joined as a party pursuant to the necessary joinder provisions of GCR 1963, 205.1.
Failure to object to necessary joinder waives the error. 1 Honigman Hawkins, Michigan Court Rules Annotated (2d ed), Committee Notes to GCR 1963, 205, p 545. It was incumbent upon the defendant municipal judge to object to the failure to join parties. Consequently, appellant appears to be arguing under the wrong court rule. She has no standing to contest joinder of parties until she is a party. Thus, intervention would be her remedy. GCR 1963, 209.
The proper method for review of a municipal judge's decision refusing to bind a defendant over after a preliminary examination is to commence a circuit court action for superintending control, GCR 1963, 711. People v Flint Municipal Judge, 383 Mich. 429, 431; 175 N.W.2d 750 (1970). The nature of superintending control was described in People v Flint Municipal Judge, supra, at 432, as follows:
"The process is not, properly speaking, an appeal. It is rather a whole new lawsuit, with different parties and different purposes. People v Yeotis [People v Flint Municipal Judge] is not a criminal case, but is rather an original civil complaint designed to require the defendant municipal judge to perform a clear legal duty." (Emphasis supplied.)
Superintending control contemplates a civil action aligning the people of the State of Michigan versus the municipal judge. It appears that the Supreme Court did not believe that the criminal defendant would necessarily have to be joined as a party to this action.
This conclusion would seem consistent with GCR 1963, 205.1, which requires joinder of those "persons having such interests in the subject matter of an action that their presence in the action is essential to permit the court to render complete relief". The appellant's presence was not essential for the court to render complete relief in this type of action. The circuit court could — without the presence of the appellant — order the municipal judge to bind an appellant over for trial in accordance with the clear legal duty that was placed upon the magistrate at the conclusion of the preliminary examination.
GCR 1963, 205.2 has no application to this matter. It only applies in those cases where persons who ought to be parties cannot be joined. 1 Honigman Hawkins, Michigan Court Rules Annotated (2d ed), Committee Notes to GCR 1963, 205, p 541. Appellant was within the jurisdiction and could have been joined as a party.
That is not to say that the appellant's interests were not adversely affected by such a determination. Clearly they were. However, the appellant, who had notice of this action, was not foreclosed from participation. She could have interevened as of right. GCR 1963, 209.1(3). No such motion was ever made. Consequently, we find no error.
Appellant next contends that certain photographs admitted into evidence were unduly prejudicial and inflammatory. At trial appellant's only objection related to the foundation for admission of the photographs. As such, we only review appellant's claim to determine whether manifest injustice has occurred. People v Riley, 67 Mich. App. 320, 323; 240 N.W.2d 787 (1976). We find none. See generally People v Olsson, 56 Mich. App. 500, 506-507; 224 N.W.2d 691 (1974), lv den, 394 Mich. 772 (1975).
Appellant's final assertion that the trial judge should have granted her motion to dismiss at the close of the appellee's case is without merit.
Affirmed.