Knoth v. A. Harvey's Sons Manfg. Co.

Brooke, J. {after stating the facts). The history of this case, as set out in the foregoing statement of facts, demonstrates, we think, that plaintiffs have been guilty of such laches in endeavoring to protect their rights after they had been fully advised of them as should, under our authorities, prevent a consideration of their contentions upon the merits. Goodwin v. Burns, 21 Mich. 211; Lyon v. Brunson, 48 Mich. 194; Union Trust Co. v. Amusement Co., 168 Mich. 574. It is, however, unnecessary to predicate determination upon this point. The petition filed by the plaintiffs in the judgment creditor’s proceeding directly attacked the decree therein upon the very ground now urged as a reason for relief, namely, that no consideration had been given to the fact that the property in question was occupied by the plaintiffs as a homestead. Judge Hosmer, in his order of October 16, 1918, denied the prayer of that petition, and no appeal was taken from that order nor from the decree to which it related. The contention of the plaintiffs in the case at bar that, in their prayer for relief in said petition they did not specifically ask that the sale be set aside, whereas in their prayer for relief in the case at bar they admit the validity of the decree but demand that the sale be set aside, is, we think, without force. Had the decree been vacated in accordance with the petition in the judgment creditor’s proceeding, the sale, of course, would necessarily have been vacated. The matter having once been litigated and a determination having been reached thereon, and no appeal having been taken from that determination, the parties are not now entitled by independent bill to relitigate the same questions, even though additional facts are set up in the [422] bill and additional prayers appended thereto. Kellogg v. Thompson's Estate, 115 Mich. 618; Peters v. Youngs, 122 Mich. 484; Harrington v. Huff & Mitchell Co., 155 Mich. 139; People v. Railway Co., 157 Mich. 144; LaVasser v. Lumber Co., 190 Mich. 403; City of Detroit v. Triangle Land Co., 207 Mich. 49. The decree of the court below, dismissing the bill, is affirmed. Moore, C. J., and Steere, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.