Letts v. Trevallick

Grant, J. (after stating the facts). Defendant insists tiat the case was not in position for hearing, because, [145] when the notice of the intention to take testimony in open court was filed and served, the case was not at issue as to all the defendants, the order pro confesso as to defendants Chase and Dedine not having been entered. Counsel for defendant relies upon Kelly v. Wayne Circuit Judge, 90 Mich. 264, and Hall Lumber Co. v. Gustin, 54 Mich. 624. In Kelly v. Wayne Circuit Judge the question was raised by mandamus to strike the case from the docket, because the case was not at issue. In Hall Lumber Co. v. Gustin the question was raised by a motion to suppress ex parte depositions which had been taken before the time for claiming an examination in open court had expired. We fail to find any evidence that the defendant was prejudiced by this mere irregularity. We think the case is clearly within Kellogg v. Putnam, 11 Mich. 344; Munch v. Shabel, 37 Mich. 166. Under Cir. Ct. Rule 25 the court has the power to order the testi-, mony taken orally in open court. The same rule is applicable in courts of chancery. Chancery Rule 15 a. The case was at issue as to defendant Trevallick. If defendant’s solicitor knew that the notice was prematurely filed, it was his duty, if he desired to have it referred to a commissioner to take testimony, to enter an order to that effect. If he supposed that the proceedings were regular, then he clearly cannot claim that his client was prejudiced or taken by surprise, for he had ample time to prepare for the hearing. The decree is affirmed, with costs. McAlvay, Blair, Montgomery, and Ostrander, JJ., concurred.