Grand Rapids & Indiana Railway Co. v. Allegan Circuit Judge

Brooke, J. (after stating the facts). It is the contention of counsel for defendant that the circuit court was without power to grant the additional writs of certiorari. This position is predicated upon the fact that the statute, 1 Comp. Laws 1915, § 4908, provides that notice of such certiorari shall be served upon the county drain commissioners within ten days after the final order of determination has been filed. It [103] appears to be conceded that the railway company proceeded strictly in accordance with the terms of the statute to secure a review in the circuit court, but the return of the drain commissioners shows that they are unable to make return of the proceedings before the probate court as well as those before the special commissioners. • The argument is made that, because this application for additional writs was made after the expiration of the ten days limited by the statute, the circuit court is without jurisdiction to issue the additional writs. The railway company filed no new affidavit and alleged no additional errors. It is asserted on behalf of the company that returns should be securdd from both the probate court and the special commissioners in order that the circuit court may be possessed of all matters and proceedings to enable it to intelligently pass upon the. alleged errors. It is, of course, true that one desiring to review drain proceedings by certiorari is limited strictly by the statute, but in the case at bar it appears to us that the petitioner acted seasonably and that if the drain commissioners are unable to make return of all proceedings affecting the establishment of the drain and bearing upon the rights of the petitioner, that additional writs should issue as a matter of course even after the expiration of the ten days limited by the statute. That the drain commissioners are unable to make a full and complete return is apparent both by their return to the writ issued against them and from the return of the learned circuit judge to the order to show cause herein. Section 13, chapter 12, of the judicature act (3 Comp. Laws 1915, § 12364) provides: “No action at law or in equity shall be defeated by the non-joinder or mis-joinder of parties. New parties ' may be added and parties mis-joined may be dropped, by order of the court, at any stage of the cause, as the ends of justice may require.” [104] In certiorari it has been held that in the discretion of the court, others standing in the same relation as the original relators to the proceedings sought to be reviewed may be admitted to occupy the same position, although the time limited for suing out the writ has expired. People, ex rel. West, v. City of Syracuse, 59 N. Y. Supp. 763, and where it is necessary to add new parties before the hearing to aid the court to render a decision the same may be done. Bowlby v. Mayor, etc., of Dover, 64 N. J. Law, 184 (44 Atl. 844). The court below must hear this case under the writ of certiorari already issued. We can see no reason, when such hearing is had, why the court in reaching its determination should not be aided by whatever may be made to appear through the returns made by the probate judge and the special commissioners. We have no hesitation in holding that the jurisdiction of the circuit court to issue writs was not exhausted by the issuance of the first writ against the drain commissioners and that in the exercise of sound discretion he should have directed the issuance of additional writs directed to the parties against whom the same were sought. Mandamus will issue. ' Ostrander, C. J., and Bird, Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred.