Duell v. Oakland Circuit Judge

Brooke, J. (after stating the facts). We are of opinion that the learned circuit judge was clearly in error in declining to reinstate the case upon learning that through an error the clerk or his deputy had failed to file the plea properly. It is asserted by counsel for plaintiff that the statute of limitations prevents the starting of a new suit and therefore that if this decision is allowed to stand he will be denied a trial of his action upon the. merits. It was within the power of the learned circuit judge to correct the wrong done through the inadvertence of the clerk, and, in the exercise of a sound legal discretion, he should have done so. The mandamus will issue as prayed. Bird, C. J., and Ostrander, Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred.