60 days, to enable the defendant to move for a new trial or to settle a bill of exceptions. Extensions of this order were made, when, on December 27, 1894, a bill of exceptions was settled, and the cause certified to this court. On February 26, 1895, the judgment was affirmed in this court (104 Mich. 252); and on March 2d a remittitur was sent to the clerk of the circuit court, and there filed March 4, 1895. Execution was issued from the circuit court on March 25th, but not placed in the hands of an officer; and on March 29th the defendant caused the amount, together with the costs, to be paid. On December 20th, following, defendant, by his counsel, entered a motion in the circuit court, and gave due notice thereof, for leave to make a motion for a new trial. This motion came on to be heard, and was granted. Relators now ask a mandamus to compel the court below to vacate such order. The affidavits upon which the motion was based, and the return of the circuit judge, are now before us. It is contended by relators that the court below had no power to make the order, for the reason that the case had been removed to this court, and here affirmed. and cases there cited. It appears that the cause, after affirmance here, was remanded to the court below, and a remittitur duly filed in that court. That court, by reason thereof, was again possessed of the case. Wright v. King, 107 Mich. 660, There are cases holding that the trial court has no further jurisdiction of the case than to carry out the mandate of the appellate court. The reason assigned in such cases is that allowing the inferior courts to disregard the adjudication of the supreme court, or to refuse or omit to carry its mandates into execution, would be repugnant to the principles of the Constitution. But in such cases it appears that some mandate had been sent to the inferior court, which it was claimed had been disregarded by the inferior court. Fortenberry v. Frazier, 5 Ark. 200 (39 Am. Dec. 373). In Skillern's Ex'rs v. May's Ex'rs, 6 Cranch, 267, it was said: "It appears that the merits of the case had been finally decided in this court, and that its mandate required only the execution of the decree. The circuit court was bound to carry that decree into execution, although the jurisdiction of that court was not alleged in the pleadings." This case has since been followed in the federal courts. Ex parte Dubuquè & P. R. Co., 1 Wall. 69; Litchfield v. Railroad Co., 7 Wall. 270; Billings v. Smelting Co., 53 Fed. 561. Those were cases, however, in which the supreme court had passed upon the merits, and had entered decrees directing what disposition should be made in the inferior courts of the case upon the merits. The present case was an action at law, and came into this court by writ of error. The merits of the case were not in controversy here, but, finding no error of law, this court affirmed the judgment below. The cause, under our practice, was then remitted to the court below. No directions were given to that court as to the final disposition of the case. In that respect the case differs from those cited. The granting of a new trial upon the merits rests in the sound judgment of the trial court. We are not able to say that, upon the merits, a new trial should not be granted; and, as no direction was given by this court to the court below as to the disposition of the case, we think the trial court had power to grant a new trial, in the absence of laches, if, in its opinion, justice required it. No new trial has been granted, but leave has been granted to make such application. The order made by that court we decline to interfere with. The writ must therefore be denied. The other Justices concurred. SHAFER v. THOMPSON. EQUITY PLEADING—MORTGAGE FORECLOSURE-Defenses. The defense that one who is made a party defendant in a bill to foreclose a mortgage, as claiming to have an interest in the mortgaged premises as "subsequent purchaser, incumbrancer, or otherwise," claims title in fee by virtue of a tax deed, may be set up by plea as well as by filing a disclaimer. Appeal from Montcalm; Davis, J. Submitted April 10, 1896. Decided May 26, 1896. Bill by William F. Shafer against Thomas W. Thompson, Libby Thompson, and William F. Soule to foreclose a mortgage. From a decree dismissing the bill as to defendant Soule, complainant appeals. Affirmed. John T. McCurdy, for complainant. McGarry & Nichols and M. A. Nichols, for defendant Soule. MOORE, J. Complainant filed a bill to foreclose a mortgage given by defendants Thompson and Thompson, and alleged in his bill that defendant Soule has, or claims to have, rights and interests in the premises described in the mortgage as subsequent purchaser or incumbrancer or otherwise. Soule entered his appearance, and filed a plea, in which he claimed he was in possession of the premises described in the mortgage as owner in fee simple by virtue of a tax deed, describing the deed. No replication was filed. The plea was heard. The court made an order dismissing the bill as to defendant Soule, from which complainant appeals. Counsel for both parties are agreed that the rights of defendant Soule under his tax title cannot be litigated in this foreclosure suit; the only difference between them being that the solicitors for defendant Soule insist that it was proper to file a plea just as they did in this case, while the solicitor for complainant insists that the solicitors for Soule should have filed a disclaimer,―citing Comstock v. Comstock, 24 Mich. 39. We have no doubt the interest of defendant Soule would have been protected by filing a disclaimer. May he not accomplish the same object by filing a plea? The complainant did not file a replication, so that the truth of the plea is not at issue (Hurlbut v. Britain, Walk. Ch. 454), but its sufficiency. Puterbaugh's Michigan Chancery Practice, 100, says: "The true office of a plea is to save to the parties the expense of an examination of the witnesses at large, and the defense proper for such a plea is such as reduces the cause, or some part of it, to a single point, and from thence creates a bar or other obstruction to the suit;" and at page 103 it is said that "pleas in bar are usually divided into three heads." Under the third head is mentioned, "pleas of matters in pais, to which belong the plea of a stated account, of title in defendant, obtained either by adverse possession for a length of time or by deed or will." In this case it was a plea of title in defendant by virtue of a tax deed. * * * and We think the action of the circuit judge in dismissing the bill as to defendant Soule was right. The decree is affirmed, with costs. GRANT, MONTGOMERY, and HOOKER, JJ., concurred. LONG, C. J., did not sit. GAVETT v. CITY OF JACKSON. DEFECTIVE SIDEWALKS-FORMATION OF ICE-LIABILITY OF MUNI- The duty of a municipality to keep sidewalks in a condition Error to Jackson; Peck, J. Submitted January 8, 1896. Decided May 26, 1896. Case by Lavina Gavett against the city of Jackson for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error. Affirmed. Pringle & Hewett, for appellant. William E. Ware, City Attorney, for appellee. MONTGOMERY, J. (dissenting). This action is brought to recover for injuries received by plaintiff while traveling on a sidewalk in Mill street, in the city of Jackson, the cause of the injury being a formation of ice, consisting of a ridge from 1 to 2 inches thick in the center, and sloping from the center either way, and in all covering about 3 feet in width. The evidence disclosed that this ice was formed by the freezing of a discharge of water carried by a conductor pipe of an adjoining building, and that this pipe had been in use for seven or eight 1 The authorities as to the liability of a municipal corporation for ice on streets or sidewalks are found in a note to Hausmann v. Madison, (Wis.) 21 L. R. A. 263. |