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James D. Turnbull, for the respondent.
GRANT, J. One Cynthia W. Crawford filed a bill of complaint in the Presque Isle circuit court, in chancery, to set aside a deed purporting to have been exeouted by her to her son. The sole question was, whether the deed was forged. That suit was brought to a final determination in this court, and decided in favor of the complainant, the court bolding that the deed was forged. James D. Turnbull, administrator of the estate of complainant's son, was a defendant in that suit: Crawford v. Hoeft, 58 Mich. 1-25. Some time after the determination of that suit, Turnbull, as administrator, commenced a suit at law in the circuit court for the county of Alpena, against relator, charging him with the mutilation of the deed, and seeking to recover damages therefor. The declaration sets forth the proceedings in this court in the case above referred to, and alleges that this court was wholly mistaken in the opinion and decree therein rendered, and was imposed upon by the acts of the relator.
If this were true, the only course open to the defendants in that suit is by application to this court for a rehearing. They did make such application, and it was denied. They now seek to reopen the issue there adjudicated and settled, in a suit at law and in another court. The bare statement of the case is sufficient to condemn the proceeding. The respondent had no right or jurisdiction to try the case. He should have granted the motion for the perpetual stay of proceedings: Barnum Wire and Iron Works v. Judge, 59 Mich. 272; Maclean v. Judge, 52 Mich. 257; Hudson v. Judge, 42 Mich. 248.
The writ of prohibition will therefore be granted.
JUDGMENTS - RES JUDICATA. - As to what constitutes res judicata, 100 Haines v. Flinn, 26 Neb. 380; 18 Am. St. Rep. 785, and note; note to Gould V. Sternburg, 15 Am. St. Rep. 142; note to Hawk v. Evans, 14 Am. St. Rep. 250, 251; Hooker v. Village of Brandon, 75 Wis. 8; Humason v. Lobe, 76 Tex. 512; Wernse v. McPike, 100 Mo. 476; Bassett v. Connecticut etc. R. R. Co., 150 Mass. 178; Bradley v. Brigham, 149 Mass. 141; Foster v. Hinson, 76 Iowa, 714.
As to what does not constitute res judicata, see Sloan 5. Price, 84 Ga. 171; 20 Am. St. Rep. 354, and note; note to Hawk v. Evans, 14 Am. St. Rep. 252
WALLACE v. GLASER.
[82 MICHIGAN, 190.) LITERBT, ROLI POR COMPUTING. — In case of partial payments, interest
should be computed by applying the payment in discharge of the ma. tured interest, and the surplus, if any, upon the principal, after which interest should be computed on the principal remaining due. If the payment is less than the interest, the surplus thereof must not be added to the principal, but interest must be computed on the former principal until the aggregate payments exceed the interest due, when the surplus must be applied toward discharging the principal, after which interest
must be coinputed on the new principal. INTEREST, COMPUTATION OF. — Under a statute allowing interest to be
computed upon interest after it matures, such computation can continuo only until the debt matures, after which simple interest is to be cast apon the principal until the time of liquidation. E. D. Lewis, for the appellants. B. D. York and G. R. Lyon, for the respondent.
CHAMPLIN, C. J. Complainant filed her bill of complaint in the circuit court for the county of Ingham, in chancery, to foreclose a mortgage given by defendant Peter Glaser to Lucy Gurney, and by Gurney assigned to complainant. The mortgage was in the usual form, accompanied by a note, and was given to secure the payment of the balance of the purchase price of the mortgaged premises. Joanna Glaser is the wife of the mortgagor, and Peter Linn is a subsequent mortgagee.
The only question in the case is, how the interest should be computed upon the mortgage debt, the amount of the princi. pal being undisputed. The difference in the amount claimed to be due arose solely from a disagreement as to the method of computing the interest. The commissioner to whom the case was referred computed the interest under what is known as the Connecticut rule; that is, he reckoned interest upon the principal up to the liquidation of the indebtedness, and then computed the interest on payments up to the same time, deducting the latter amount from the principal and interest. The rule, as claimed by the complainant and adopted by the circuit court, was the one which is sometimes called the Massachusetts or the United States rule, and was laid down by Chancellor Kent, as follows: "When partial payments have been made, apply the payment, in the first place, to the discharging of the interest then due. If the payment exceeds the interest, the surplus goes towards discharging the principal, and the subsequent interest is to be computed on the balance of the principal remaining due. If the payment be less than the interest, the surplus of interest must not be taken to augment the principal, but the interest continues on the former principal until the period when the payments, taken together, exceed the interest due, and then the surplus is to be applied towards discharging the principal, and interest is to be computed on the balance as aforesaid."
This rule was adopted by this court in Payne v. Avery, 21 Mich. 524, and is the rule recognized in most of the states. We think that the circuit court was right in its manner of computing interest, and that it reached the right conclusion.
Under the statute (Howell's Statutes, sec. 1599) allowing interest to be computed upon interest after it matures, such computation can continue only until the debt matures, and from that time simple interest is to be cast upon the principal until the time of liquidation.
It follows that the decree of the circuit court must be affirmed, with costs.
INTEREST, ROLI FOB COMPUTATIOU OP. - As to the rule for the computation of interest in the case of partial payments, see Hart v. Dorman, 2 Flam 445; 50 Am. Dec. 285, and noto 287–290; Baker v. Baker, 28 N. J. L 13; 75 Am. Dec. 243, and noto; Connecticut V. Jackson, 1 Johns. Ch. 13; 7 Am. Dec. 471.
INTEREST. - As to whether interest, after maturity, is controlled by the terms of the contrast or by statute, see noto to O'Brien v. Young, 47 Am. Rep. 70–75; Briggs v. Winamith, 10 & a. 133; 30 Am. Rep. 46, and note 47–50.
HALLGREN V. CAMPBELL.
[82 MICHIGAN, 265.] OTTOB AND OFFICER TRIAL OF TITLE TO OFFICE. — Title to offico cannot
be tried in an action of replevin for property belonging to the office. OMICE AND OFFICER REMOVAL Where an officer is appointed for a fixed that every officer appointed for a fixed term should be entitled to hold bis office until the expiration of such term, unless removed therefrom for
term, and the power of removal is not expressly declared by law to be discretionary, he cannot be removed except for cause; and when cause must be assigned for his removal, he is entitled to notice and a chance to
defend OTTICE AND OFFICER — REMOVAL - PRESUMPTION. - A statutory provis.
ion that elective officers shall not be removed except for cause does not raise a presumption of intention that appointed officers may be removed
without cause. DITIOB AND OFFICER — REMOVAL - PRESUMPTION. The legislaturo may,
by express worde, confer upon the common council of a city the power to remove an officer without cause; but in the absence of such power given in express words, the presumption is, that the legislature intended
cause after a fair trial. OTTICE AND OFFICER — REMOVAL - OFFICER DE FACTO. – One who has law.
fully been in office, and has been recognized as the officer do facto, and not lawfully removed, indicates his claim to hold the office by his refusal to deliver up the property, books, and papers belonging thereto; and if he has never yielded, but has continued to act, then a subsequent apo pointee to the office, who has never had possession, cannot be regarded as an officer de facto. Phillips and Thompson, for the appellant. B. J. Brown, for the respondent.
CAHILL, J. The plaintiff brought an action of replevin in his individual name against the defendant to recover possession of the following personal property, to wit: “Two iron road-scrapers, one wooden road-scraper, one wooden beamplow, one wooden tool-box and its contents, consisting of a quantity of shovels and picks, also all notice-books, containing blank notices used by the street commissioner of Menom. inee City," which he claims belongs to the office of street commissioner of the city of Menominee.
The defendant defends upon the ground that he is himself street commissioner of the city of Menominee, and is therefore entitled to the possession of the property. The defendant claims that on May 6, 1889, he was duly appointed to the office of street commissioner for one year; that he qualified and entered upon the discharge of his duties as such officer, and 80 continued down to the commencement of this suit. The plaintiff claims, – 1. That the defendant was never legally appointed to the office; 2. That if he was appointed, he was removed by the common council on the fifth day of August, 1889.
The point made against the legality of the defendant's appointment to the office is, that the charter of the city of Menominee provides that "the council shall prescribe the rules of its own proceedings, and keep a record or journal thereof. All votes shall be taken by yeas and nays, and be so entered upon the journal as to show the names of those voting in the affirmative, and those in the negative; and within one week after any meeting of the council, all the proceedings and votes taken thereat shall be published in one of the newspapers of the city": Bee. 8, c. 8.
The record of the defendant's appointmont is as follows: "Adorman Spies nominated William Campbell street com
missioner, seconded by Alderman Oehrling, and he was de clared elected.”
It is claimed that this record does not comply with the requirements of the charter, and that the appointment is therefore void; and we are cited to Steckert v. East Saginaw, 22 Mich. 104.
If we were required in this case to pass upon the title of the defendant to the office which he claims to hold, the case cited would be in point; but we agree with plaintiff's counsel that the title to this office cannot be tried in an action of replevin for property belonging to the office. It is sufficient for the defendant's claim that the common council, having authority to do so, undertook to elect him street commissioner; that he accepted their action, qualified for the office, and entered upon the discharge of his duties, and was recognized by the com. mon council as de facto street commissioner. This position would entitle him to the custody of the property in controversy, unless he had been legally removed from office by the common council, or had been in fact removed by the common council, and had acquiesced in such removal, and to the appointment of the plaintiff as his successor.
"A person actually obtaining office with the legal indicia of title is a legal officer until ousted ": Board of Auditors v. Benoit, 20 Mich. 180; 4 Am. Rep. 382.
The first action of the common council for the removal of the defendant was taken at a special meeting called for July 22, 1889, at which the following resolutions were presented and read:
"Whereas, William Campbell, the street commissioner of the city of Menominee, has graded and graveled a road on the town line, and running from the state road west to the gravel pit, without being ordered by the common council, or without their knowledge, thereby expending a large sum of money without authority, and thereby subjecting the city to needless and uncalled for expense; and
“Whereas, the said William Campbell as street commis. sioner, as aforesaid, has neglected and refused, and still does weglect and refuse, to obey the orders of the city council in this, to wit, refusing to gravel Ogden Avenue as directed by vote of this council passed at a regular meeting held July 15, 1889,
“Now, be it resolved that said William Campbell bo and hereby is removed from office of street commissioner of said