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THE MUSKEGON BOOMING COMPANY V. ALBERT DICKERMAN, CIRCUIT JUDGE OF MUSKEGON COUNTY.

New trial-Deposition—Mandamus.

Mandamus will not lie to vacate an order directing that a commission issue to take the deposition of a witness on a motion for a new trial, under How. Stat. § 7766, which provides that when there shall be a motion or other proceeding in any court of record, in which it shall be necessary for either party to have the deposition of any witness who shall have refused voluntarily to make his deposition, the court may direct a commission to be issued to one or more persons, inhabitants of the county in which the witness resides, to take his testimony.1

Mandamus. Order to show cause denied June 13, 1893.

Relator, who was the defendant in a suit in the circuit court of Muskegon county, recovered a judgment therein. The plaintiffs made a motion for a new trial, and, after noticing the motion for hearing, presented a petition to the court, setting forth said facts, and averring that for the purposes of the motion it was necessary to have the deposition of one Brakeman, who had refused voluntarily to make his deposition in that behalf, and praying the court to direct a commission to be issued to one Soper, an inhabitant of the county of Muskegon, to take the testimony of Brakeman, who resided in the same county. An order was made that a commission issue, and the relator applied for a mandamus to compel respondent to vacate the order, he having refused to do so on motion.

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PER CURIAM. An order to show cause is denied. Man

'See note to Stringer v. Dean, 61 Mich. 202.

damus will not lie to vacate an order for the issuance of a commission to take the deposition of a witness on a motion for a new trial, under How. Stat. § 7766.

GERRIT RANKANS V. PHILIP PADGHAM, CIRCUIT JUDGE
OF OTTAWA COUNTY.

Security for costs-Non-resident plaintiff-Default-Judgment.

Where a non-resident plaintiff files security for costs upon an 'order therefor made upon the application of the defendant, the default of the defendant in not pleading, entered upon the same day the security is filed, is prematurely entered, and mandamus will lie to vacate a judgment based thereon, and to set aside the default.

Mandamus. Argued June 13, 1893. Granted June 14,

1893.

Relator appeared specially in a suit commenced against him by a non-resident plaintiff by declaration, and moved to strike the declaration from the files for the reason that security for costs had not been indorsed, as required by the statute. The motion was denied upon plaintiff's filing security for costs. Thirty days had elapsed since the declaration was served, but proof of service was filed on the day the motion was denied. Defendant's default for want of an appearance and plea was entered on the same day that the security for costs was filed, and made absolute under the rule, and judgment was rendered in favor of the plaintiff. Defendant moved to set aside the judgment and open the default, on the ground that the time to plead did not begin to run until the security for costs was

97 623

101 378

filed. The motion was denied, and relator applied for mandamus to compel respondent to grant it.

Farr & Soule, for relator.

Walter I. Lillie, for respondent.

PER CURIAM. Where a non-resident plaintiff gives security for costs upon an order therefor made upon application of the defendant, defendant's default for not pleading, entered upon the same day that the security is filed, is prematurely entered, and mandamus will lie to vacate a judgment based thereon, and to set aside the default.

CHARLES K. BACKUS V. MILTON E. CARLETON, TREASURER OF WAYNE COUNTY.

Mandamus-Application to circuit court.

Where a circuit judge illegally refuses to hear an application for mandamus under Circuit Court Rule No. 107,' giving circuit courts jurisdiction in mandamus proceedings, application should be made to the Supreme Court for an order to compel him to do so.

Mandamus. Order to show cause denied October 3, 1893.

Relator, desiring to record a land contract, applied to respondent for a certificate as to taxes, under section 135, Act No. 206, Laws of 1893, for which a fee of 40 cents was demanded, which relator refused to pay, and applied to the circuit court of Wayne county for a mandamus to compel respondent to furnish the certificate gratuitously.

1 See 94 Mich.

An answer was filed, and the proceedings were dismissed by Judge Hosmer, on the ground that a public question was involved, which should be speedily and finally settled, and that the application should have been made to the Supreme Court; and thereupon the present application was made.

Henry A. Chaney, for relator.

PER CURIAM. An order to show cause is denied. If a circuit judge illegally refuses to hear an application for mandamus, the relator should apply to the Supreme Court for an order to compel him to do so.

WILLIAM LOVE AND ALBERT H. SCHOFIELD V. SAMUEL W. VANCE, CIRCUIT JUDGE OF ST. CLAIR COUNTY.

Contempt-Failure to pay costs-Mandamus.

Mandamus will not lie to vacate an order of a circuit judge adjudging a party to a suit guilty of contempt in refusing to pay the costs awarded against him on a continuance, certiorari being the proper remedy.

Mandamus. Argued October 24, 1893. Denied November 1, 1893.

Relators were adjudged guilty of contempt for refusing to pay the costs awarded against them on a continuance, and applied for a mandamus to vacate the contempt order.

John M. Kane and Thomas Wellman, for relators.

97 MICH.-40.

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Northup & O'Donnell, for respondent.

PER CURIAM. The writ is denied, certiorari being the proper remedy.

MERRITT W. UNDERWOOD V. JOHN H. PALMER, CIRCUIT JUDGE OF NEWAYGO COUNTY.

Attorney at law-Suspension from practice-Mandamus.

Mandamus is not the proper remedy to review an order suspending an attorney at law from the practice of his profession.

Mandamus.

1893.

Order to show cause denied November 14,

Relator applied for mandamus to compel the respondent to vacate an order suspending him from practice as an attorney at law for one year.

Merritt W. Underwood, in pro. per.

PER CURIAM.

An order to show cause is denied.

Mandamus is not the proper remedy.

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