Davidson v. Grand Trunk Elevator Co.

McGrath, J. This is certiorari from an order of a circuit court commissioner of St. Clair county removing , this cause to Wayne county. The petition prayed for the removal of' the cause to Wayne county, but the only basis for removal to that county set forth in the- petition, or that appears to have [458] been urged, is that Elliott G-. Stevenson, “ counsel for defendant,” resides in that county. Plaintiff’s counsel urged a removal to Macomb county, and objected to a removal to Wayne. No testimony was taken. The order of removal recites that “the facts in said petition being admitted” by the attorney for plaintiff, and “it further appearing that said Elliott Gr. Stevenson, counsel for said defendant, resides in the county of Wayne, it is ordered,” etc. It was held in Stimson v. Shingle Co., 71 Mich. 374, and later in Bolles v. Loan & Trust Co., 86 Id. 229, that How. Stat. § 6499, applies only to a party or the attorney or solicitor of record, and that the removal of a cause to a county could not be based upon the residence in that [459] comity of “counsel” who was not the attorney of record. The order of the circuit court commissioner must therefore be set aside, with costs to plaintiff. The other Justices concurred.