FIRST NATIONAL BANK OF HOUGHTON vs. PETER ROBERT. Filed October, 21, 1879. Where the genuineness of a defendant's signature was in issue, held, that it was proper to permit experts to testify, after a comparison of the signature with that of genuine signatures of the party to other papers in the cause; but that the attempt to bring before the jury other signatures not in the case was properly refused.-[ED. Error to Baraga. T. L. Chadbourne, for plaintiff in error. GRAVES, J. The bank sued the defendant as indorser of a note for $5,000. The defence was that the indorsement was not genuine, and the usual affidavit in denial of execution was filed. The evidence for the bank, to prove that the indorsement was genuine, was comprised of the testimony of certain experts, who were allowed to compare it before the jury with signatures of the defendant to papers in the cause and admitted to be his. This was proper. Vinton v. Peck, 14 Mich. 295. The defendant being sworn in his own behalf denied the indorsement. He was then cross-examined and questioned in regard to his having signed papers not in the case, and was asked in particular whether he would not produce signatures made prior to the note in suit, and whether he would not write his name there in court. The judge excluded all these inquiries, on objection, and it is of these rulings that complaint is made. The object of the questions was to bring into the case extrinsic signatures, for the purpose of comparison by the jury, and we think the judge was correct in ruling against it. The view explained in Vinton v. Peck, supra, applied. There is no error, and the judgment is affirmed, with costs. (The other justices concurred.) CATHARINE BROHL vs. ANTHONY LINGEMAN. Filed October 21, 1879. In an action for injuries caused by plaintiff's teams some of the counts charged the wrong to have been done by defendant, and in one it was averred that the team was being driven by defendant's son as his agent and servant. The evidence showed the son the active party; that the horses and wagon belonged to defendant; but nothing to show any employment, presumption of agency, or even that the son was under defendant's control. Held, there was nothing to go to the jury, following Ricci v. Muller, 40 Mich. 214.-[ED. Error to Wayne. Adam E. Bloom and H. M. Cheever, for plaintiff in error. Maybury & Conely, for defendant in error. CAMPBELL, C. J. Plaintiff sued defendant for injuries sustained by being run against by his wagon. The declaration charged the wrong to have been done directly by defendant, in some of the counts, and in one count describes the wagon as driven by his son as his agent and servant. The testimony showed the son to have been the acting party, and the wagon and horses to have belonged to defendant; but there was no testimony showing any actual service or agency, and none showing such a relation as in any way raised a presumption that the son was in the father's employment, or even under his control, in this matter or generally. There was nothing to go to the jury. The case cannot be distinguished from Ricci v. Muller, 40 Mich. 214. It seems to have been assumed on the trial that the jury could be expected to know all about the family relations of the parties concerned, but whatever may have been their general knowledge of their neighbors' concerns, the knowledge on which cases are disposed of must come from testimony, which here was lacking. The court ruled correctly that no cause of action was made out. The judgment must be affirmed, with costs. (The other justices concurred.) JOHN T. GIBSON vs. MARGARET BURROWS. Filed October 21, 1879. No award of arbitrators can be enforced by judgment thereon unless it, in all respects, conforms to the statutory provisions; where it does not, it can only be enforced by bill or action. References, like awards, can only be enforced where the statutory requisites are complied with.-[ED. Error to superior court of Detroit. Alex. D. Fowler, for plaintiff in error. Stewart & Galloway, for defendant in error. CAMPBELL, C. J. Error is brought on a judgment rendered in the superior court of Detroit in favor of Margaret Burrows against John T. Gibson, on what purports to be the finding of certain persons acting as arbitrators or referees. It is claimed the action of those persons was not had in such a way as to authorize the court to enforce it. Two suits were pending between these parties in November, 1877. Gibson had a chancery proceeding in the Wayne circuit court to enforce a lien under a building contract, and Mrs. Burrows had a suit in the superior court of Detroit against him for damages growing out of the same contract. On the twelfth day of November, 1877, the two parties entered into a written agreement, entitled in the cause in the superior court, providing that the decision of three arbitrators, or a majority of them, should be entered, and judgment rendered thereon, with special agreement as to costs. The arbitrators were to be chosen, one by each party, and a third by the other two. They were to take the contract, allowing Gibson $165, the unpaid balance, and such sum as they should see fit for extras named, and then determine the damages sustained by Mrs. Burrows by non-performance of the contract according to its terms. It was expressly provided that they should hear no testimony, and should determine the whole matter by their own judgment, on personal inspection of the work, as compared with the contract. These are the important provisions. After the choice of arbitrators the suit in the Wayne circuit court was to be discontinued and the lien discharged. It was further declared that all matters not therein contained, concerning the powers and duties of the arbitrators, should be left to their judgment and discretion, under the supervision of the judge of the superior court. They found an award which declared a balance in favor of Mrs. Burrows, derived from cross-allowances particularly set out. On this judgment was rendered. It is insisted that the court had no power to act upon this award, because it did not conform to the statute. It is not acknowledged before any officer, which the statute expressly requires. C. L. 6891. Some other matters might be suggested, but this alone is fatal. An arbitration which does not in all respects conform to the statute, must be enforced, if at all, by bill or action. No judgment can be rendered on it. Gallagher v. Kern, 31 Mich. 138; McGunn v. Hanlin, 29 Mich. 476. Defendant in error, conceding this defect, attempts to sustain the proceeding as a reference. But references, like awards, can only be made the foundation of a judgment when they conform to the statutes. Under our statutes (C. L. c. 186) the referees are required to conduct their business in the same manner as a trial by the court. The whole machinery of the law contemplates the introduction of testimony and all the other incidents of legal proceedings, with rulings on testimony and findings of fact and law, subject to revision for errors. Here the arbitrators are required to receive no testimony, and to act entirely on their own judgment, on an inspection of the work out of which the controversy arose. There is no resemblance to a reference. The award, if valid, must be enforced as a cause of action, and not as a substitute for a verdict. No judgment can be given on it. The judgment must be reversed, with costs, as there is nothing left of the lawsuit, both suits having been made subject to the agreement, which is not void, but merely extra-judicial. (The other justices concurred.) CHARLES A. WATSON and others vs. THEODORE H. HINCHMAN and others. Filed October 21, 1879. Attorneys appearing in an action for defendants are entitled to notice of subsequent proceeding affecting their client's rights, though they may have withdrawn his plea interposed. Rights of parties to an action cannot be changed or affected by changes in the proceedings, without giving them an opportunity to be heard.-[ED. Error to superior court of Detroit. Wisner & Speed, for plaintiffs in error. Griffin & Dickenson, for defendant in error. MARSTON, J. We are of opinion that the attorneys who appeared in this cause on behalf of defendant Watson were entitled to notice of any subsequent steps taken in the cause. affecting their client's rights, even although they may have withdrawn the plea by them filed in behalf of said defendant. The affidavit as to the infancy of defendant Wait simply recited the fact that in another court and cause defendant Wait had made an affidavit that he was an infant for the purpose of having a guardian ad litem appointed. If such affidavit, filed in this case, could be considesed as any evidence of Wait's infancy, of which at least there must be considerable doubt, it could not be conclusive as to his co-defendants, whose liability could not thus be enlarged without an opportunity being given them to contest the fact. Nor could the judgment rendered against the three defendants be vacated upon this showing as to the infancy of one of them, the declaration amended setting up a cause of action against the two remaining defendants, and a judgment rendered against them without notice to the attorneys who had appeared in the cause. We have repeatedly held that the rights of parties could not thus be changed or affected without giving them an opportunity to be heard. Montgomery v. Merrill, 36 Mich. 97; Crawford v. Fuller, 35 Mich. 57; Jewett v. Morris, present term. The judgment must be reversed, and the case remanded for further proceedings. (The other justices concurred.) WILLIAM W. WHEATON US. THE ATLANTIC GIANT POWDER CO. Filed October 21, 1879. After the trial of a cause has been commenced the court cannot stay proceedings as to one party, and permit the other to go on to judgment for failure or refusal of the party whose proceedings are stayed to pay his share of stenographer's fee.-[ED. Error to Marquette. Dan. H. Ball, for plaintiff in error. Swift & Osborn, for defendant in error. CAMPBELL, C. J. Plaintiff in error was sued in a personal action. After the trial had opened the parties were required to pay each one dollar and fifty cents as stenographer's fee. Plaintiff in error declined to pay his share. The court below refused to allow him to introduce his defence, although the plaintiff below was allowed to go on with his own case and procure a judgment. Such an absurd result is not within the terms of the statute concerning stenographers, if it is within the power of the legislature to require it. The idea that a trial may lawfully proceed on one side without permitting the other to be heard is preposterous. Whatever power there may be to stay proceedings before a trial opens, upon which there is now no occasion to express our views, it would be contrary to all reason to allow a case once opened to be stayed by any such interference. The judgment must be reversed, with costs, and a new trial granted. (The other justices concurred.) |