Humber v. Wayne Circuit Judge

Clark, J. This plaintiff and another are judgment debtors. The judgment creditors presented petition to the circuit court, Hon. Adolph F. Marschner, circuit judge, for discovery pursuant to 3 Comp. Laws 1915, § 13378 et seq. The order was made. Required service could not be had upon plaintiff because of his absence from the country. Later, it *247 appearing that service could be made, the creditors filed and presented petition or motion praying,ah order fixing a new and different date for hearing. The order was made by Hon. Theodore J. Eichter, presiding circuit judge of the Wayne circuit. Plaintiff contends, on mandamus, that the order of Judge Eichter is void, that the original order is an order by the judge, not by the court, -and could be amended only by the judge who made it, and that the statute provides proceedings by a judge, not by the court. The statute is that proceedings may be in court or at chambers. 3 Comp. Laws 1915, § 13387. This has been recognized by the court. Shepard v. Kent Circuit Judge, 109 Mich. 606. The original order here was a court order. It was made in open court. It required the debtors to make discovery before Judge Marschner, circuit judge, in court, and to show cause why a receiver should not be appointed by the court. The creditors, having opportunity to make service, and seeking for that purpose the fixing of a new date of hearing, prayed order to that effect. They sought ex parte amendment or change of an order of the court. A rule of the circuit is that such matters be presented only to the presiding judge. The rule, beneficial to litigants and convenient to both bench and bar, is upheld as not in conflict with the statutory requirements for the proceedings in question. The return of Judge Eichter indicates that the hearing will be before Judge Marschner. We see no possible prejudice to plaintiff. No other question calls for discussion. Writ denied with costs to defendant. Wiest, C. J., and Butzel, Potter, Sharpe, Pead, and North, JJ., concurred. McDonald, J., took no part in this decision.