Opinion
Submitted April 10, 1928. (Calendar No. 33,603.)
Writ denied June 4, 1928. Rehearing denied October 1, 1928.
Mandamus by James Lapham to compel Royal A. Hawley, presiding circuit judge of Wayne county, to set aside an order dismissing a declaration in an action at law. Submitted April 10, 1928. (Calendar No. 33,603.) Writ denied June 4, 1928. Rehearing denied October 1, 1928.
Arthur Jones, for plaintiff.
Carl R. Hospers ( Ignatius J. Salliotte, of counsel), for defendant.
This is a petition for writ of mandamus to compel the defendant to set aside an order made by him in the Wayne county circuit court, dismissing plaintiff's declaration and denying him leave to amend.
Plaintiff brought an action of ejectment. The defendant therein made a motion to dismiss the declaration because it did not have attached thereto a statement of title as required by section 13184, 3 Comp. Laws 1915. After argument, the court granted the motion. Plaintiff moved orally to amend the declaration, but made no profert of amendment. His counsel then stated that his claim of title was through Charles L. Lapham and Julia Lapham, parents of plaintiff. Counsel for the defendant suggested to the court and opposing counsel that the title claimed by plaintiff had been litigated in a former chancery suit brought by plaintiff against his mother in the Wayne county circuit court and also in the case of Lapham v. Lapham, reported in 239 Mich. 237. After reading the decision, plaintiff's counsel announced that he knew of no new facts connected with the case which were not disclosed by the decision. The court refused to permit plaintiff to amend his declaration because the made no profert of an amendment and because the suit was merely an attempted "retrial of matters which had already been conclusively and fully decided by the Supreme Court." Plaintiff has not yet presented the amendments he desires to make to his declaration.
On October 1, 1927, the court entered an order dismissing the declaration, and —
"It is further ordered that the plaintiff's verbal motion to amend said declaration be denied and the said cause be dismissed with costs of ten ($10) dollars to the defendant."
No further proceedings appear to have been taken until January 17, 1928, when petition for mandamus was filed in this court. The order of the court was a final judgment which disposed of the action, and for the review of which a writ of error would lie, and would be the proper remedy. Section 13736, 3 Comp. Laws 1915; Jewell v. Lamoreaux, 30 Mich. 155; Emerson, Talcott Co. v. McCormick Harvesting Machine Co., 51 Mich. 5; Recor v. St. Clair Circuit Judge, 139 Mich. 156; Brotherton Co. v. Jackson, 231 Mich. 604.
It is settled that a writ of mandamus will not be granted where a writ of error will afford adequate relief. City of Flint v. Genesee Circuit Judge, 146 Mich. 439.
It is also fundamental that the writ of mandamus is not one of right, but is one of discretion. Klatt v. Wayne Circuit Judge, 212 Mich. 590. Plaintiff, instead of seasonably pursuing his remedy of writ of error, lay quiescent for a period of more than three months. He offers no excuse nor reason for the inaction. His case does not appeal to the discretion of the court.
Moreover, he has permitted expiration of the time for settlement of a bill of exceptions. Mandamus cannot be used as a storage reservoir of review.
The writ is denied, with costs to defendant.
NORTH, FELLOWS, WIEST, CLARK, McDONALD, POTTER, and SHARPE, JJ., concurred.