Opinion
Docket No. 94.
Submitted January 30, 1924.
Decided March 5, 1924.
Error to Wayne; Miller (Guy A.), J. Submitted January 30, 1924. (Docket No. 94.) Decided March 5, 1924.
Assumpsit by Vokes Schaffer against William W. Moore and another on promissory notes. Judgment for plaintiff on a directed verdict. Defendants bring error. Affirmed.
Welsh Bebout, for appellants.
Renaud, Hulett Wing, for appellee.
This case was brought to collect $8,576.37, and interest, evidenced by 7 promissory notes given by defendants to plaintiff, copies of which notes were attached to the declaration. The defendants entered the plea of the general issue with notice of special defenses. September 20, 1923, the case came on for trial before Judge Guy A. Miller. At the close of all of the testimony he directed a verdict in favor of the plaintiff in the sum of $10,032.94. The case is brought into this court by writ of error.
There are more than 100 calendar entries in the case. It will be necessary to refer to but few of them.
In May, 1923, Judge Ira W. Jayne entered an order from which we quote:
"The petition of the above named plaintiff praying that this court order stricken from the files and records in said cause the affidavit of merits and the amended affidavit of merits heretofore filed herein; also, all the special defenses pleaded therein under the general issue both in the original plea and in the amended plea, and the said plaintiff being present in court by its attorneys Wilds Wing, and said defendants being present in court by their attorneys Welsh Bebout, and the said attorneys for the said defendants having no objection to the said court entering an order as prayed in plaintiff's petition.
"It is therefore ordered that the affidavit of merits and the amended affidavit of merits heretofore filed herein, and all the special defenses pleaded under the general issue, both in the original plea and in the amended plea, be and the same are hereby stricken from the files and records in said cause.
"And it is further ordered that the plea of general issue shall be and remain the sole and only plea interposed or filed by said defendants in said action."
Later an amended plea was filed substantially like the first one. This was done without vacating the order above quoted and without obtaining permission of the court to do so. Later a motion was made before Judge Guy A. Miller to allow the plea to stand or at least to allow it to be refiled. This motion was overruled and the directed verdict followed.
We quote from the brief of appellants' counsel:
"In conclusion it is the contention of defendants and appellants that the trial court erred in two particulars:
"1. In refusing to set aside the order of May 5, 1923.
"2. In striking defendants' amended answer from the files and refusing to allow the same to be refiled as of date of trial."
Counsel for appellee contend that as the order of May 5, 1923, is a consent order it cannot be disturbed. They further contend that Judge Miller could not set aside an order made by Judge Jayne without showing Judge Jayne was absent or unable to act.
Section 12139, 3 Comp. Laws 1915, reads:
"No stay of proceedings shall be directed or ordered by any one of the circuit judges in any cause or proceeding, excepting when the order or decree under which the proceedings are stayed shall have been made by such judge, except that where the judge making such order or decree on which the proceedings are sought to be stayed, shall be absent or unable to act; then an order staying proceedings on such order or decree may be made by either of the said circuit judges, and no order or decree shall be set aside or vacated except by the judge making the same, unless such judge shall be absent or unable to act."
This statute was recently passed upon by this court in the case of Jageriskey v. Kelemen, 222 Mich. 575. We think this case is controlling.
Judgment is affirmed, with costs to the appellee.
CLARK, C.J., and McDONALD, BIRD, SHARPE, STEERE, FELLOWS, and WIEST, JJ., concurred.