Detroit Lumber Co. v. Auxiliary Yacht "Petrel"

Blair, C. J. The proceedings in this case were instituted to, enforce a demand against a water craft, pursuant to the provisions of chapter 298 of the Complied Laws, sections 10788-10836, inclusive. At the conclusion of claimant’s proofs, the circuit judge dismissed the proceedings and awarded judgment in favor of defendant for the reason that claimant had failed to prove that at the time of giving notice of his claim the owners of the craft were indebted to the contractor. Claimant applies to this court for the writ of certiorari to review this judgment. We are of the opinion that the applicant has misconceived its remedy. The judgment is clearly a final judgment upon the merits, and the remedy by appeal provided by the statute in such case is adequate. Sections 10823-10827, inclusive. From an early day it has been held by t.hifl court that the remedy by certiorari should not be favored, and would generally be refused when another [351] adequate remedy existed. Farrell v. Taylor, 12 Mich. 113; City of Ishpeming v. Maroney, 49 Mich. 226; U. S. Gypsum Co. v. Kent Circuit Judge, 150 Mich. 668; Detroit River Transit Co. v. Trust Co., 152 Mich. 91; In re Phillips, 154 Mich. 139. On the previous application of the petitioner for the writ of certiorari, it appeared that the circuit judge dismissed the claim, upon the ground that, the amount thereof being less than $100, the court did not have jurisdiction of the case. Detroit Lumber Co. v. Yacht Petrel, 153 Mich. 528. In that proceeding there was no determination upon the merits, but, on the contrary, the court held there was no jurisdiction to pass upon the merits of the claim. In such a case the writ of certiorari was the most appropriate, if not the only adequate, remedy. The application is denied. Grant, Montgomery, and Ostrander, JJ., concurred.