Gray v. Berrien Circuit Judge

Brooke, J. I do not agree with the conclusion reached by my Brother Fellows in this matter. The statute provides (3 Comp. Laws 1915, § 12593): “In chancery cases if there be an issue of fact which, in the opinion of the court, shall render the intervention of a jury necessary or proper, said court shall, on request of either party, order a jury impaneled for the trial thereof, and the verdict of such jury may be used upon the hearing of the cause.” While it is true that in the early case of Dunn v. Dunn, 11 Mich. 284, Justice Campbell made use of the following language: ’ , “An issue can only be granted at the hearing as a general thing and as this issue was so awarded, it is manifest that it must be confined not only to facts put in issue by the pleadings, but to facts concerning which some testimony has previously been introduced and read at the hearing.” An examination of that case will show that the propriety of ordering the issue to be tried by a jury was not questioned; neither was the point raised or discussed as to whether a jury could be called for the determination of an issue of fact only after testimony had been taken. As a matter of fact in that case the chancellor had taken testimony before the issue was framed, so that I think we can properly regard the language of the distinguished Justice as. obiter. It will further be noticed that there were two other opinions in the case in neither of which is this point mentioned. The statute itself clearly imposes no limitation as to time upon the discretionary power to be exercised by the court. [211] In the case of Maier v. Wayne Circuit Judge, 112 Mich. 491, it is very apparent that the order for the jury was made before any testimony was taken. While the order was made under a different statute, Justice Hooker, speaking for the court, said: “We are satisfied that this, case is within the general jurisdiction of equity, and therefore clearly within the reason of Brown v. Kalamazoo Circuit Judge, supra, although we do not mean to intimate that the result would not be the same were the cause one which only came within the jurisdiction by virtue of a statute. We think that the statute in question was not mandatory, and might be waived, as said in the case of Schafberg v. Schafberg, 52 Mich. 429; and where a case had been noticed for hearing without mention of a desire for a jury, especially when the party is in court ready for trial,'the court would be justified in denying trial by jury upon the ground that it had been waived. It does not follow, however, that he must deny it under such circumstances. We are also of the opinion that the verdict is advisory.” The making of the order in that case was affirmed although modified so far as it attempted to make the finding of the jury final. I am satisfied that it is within the power of a circuit judge in the exercise of a legal discretion to order a jury for the trial of an issue of fact in a chancery case before any testimony has been taken as well as after the testimony has been taken in whole or in part. That practice was followed in the case of Fidelity Mutual Life Ins. Co. v. Blain, 144 Mich. 218, and seems to have been approved by this court in the review of that case. The claim that such a course would tend to deprive a court of equity of its jurisdiction to determine facts in equitable cases is without foundation. No one contends that the verdict of a jury in such a case is anything but advisory. In the last analysis the findings of fact must be made by the chancellor himself. He may agree or disagree with the verdict rendered by the jury, but upon him [212] rests the responsibility for a final determination in his court. Further than this it seems to me that it would be idle to issue the mandamus for, as said by Justice Hooker in Maier v. Wayne Circuit Judge, supra: “The judge had the authority to send the question to the jury upon his own motion, and nothing would be gained in this case by setting aside his order, as he might make another.” If the order is set aside the learned circuit judge could proceed to hear the case and after one or more witnesses were sworn he could then order a jury and so defeat the effect of the mandamus and at the same time comply with the views of my Brother. I am of opinion that mandamus should be denied. Ostrander, Moore, Steere, Stone, and Kuhn, JJ., concurred with Brooke, J. .