Hyma v. Hippler

365 Mich. 127 (1961)

111 N.W.2d 789

HYMA v. HIPPLER.

Docket No. 14, Calendar No. 49,132.

Supreme Court of Michigan.

Decided December 1, 1961.

Stewart M. Green (J. Nelson Pyle, of counsel), for plaintiff.

Stanley Berriman, for defendants Holmes.

KELLY, J.

July 5, 1960, plaintiff filed his motion for new trial stating that his "action is in fact a bill in aid of execution based upon a claimed fraudulent conveyance," and that "the cause was not litigated in the hearing held June 17, 1960, and should therefore be heard." The motion was denied and plaintiff appeals.

The pretrial statement reduced the question to be decided as follows:

"It appears that on March 10, 1949, a judgment was rendered in the circuit court for the county of Livingston, in favor of the plaintiff and against the defendant, Alfred Hippler, in the amount of $6,000. That on the date of the entry of the judgment Hippler held a mortgage in the amount of $2,500 on *129 lands owned by the defendants Holmes. That on the 10th day of March, 1949, a levy was made on the mortgage interest of Hippler in said lands. Despite the fact of this levy, it is claimed by the plaintiff that this mortgage was paid by the Holmes on the 12th of March with knowledge of the existence of the levy. This knowledge is denied by the defendants Holmes.

"The sole question to be decided by this court is whether or not, at the time of the payment of the mortgage by Holmes to Hippler, he had knowledge of the existing levy against the said mortgage and the interest thereof of the plaintiff."

It is admitted by appellant that the record discloses that there was no levy on the mortgage and, therefore, the sole question as established by the pretrial statement would have to be answered that defendants Holmes did not have knowledge of a levy against the mortgage.

Appellant, however, asks this Court to disregard the pretrial statement and find that "The lower court erred in the composition of the pretrial statement because it nullified the main issues in the bill in aid of execution and the trial judge knew the attorneys were confused."

Michigan Court Rule No 35, § 4 (1945),[*] states that the purpose of the pretrial procedure is to state and simplify the factual and legal issues to be litigated. The pretrial statement was not modified at, or before, the trial. The pretrial statement shall control the subsequent course of the action or proceedings. See Kolton v. Nassar, 352 Mich 337.

The court's decision was a proper determination of the factual and legal issues to be litigated according to the pretrial statement, and this Court will not reverse because appellant claims that the pretrial statement differed with the bill in aid of execution or because "the attorneys were confused."

*130 Appellant claims the lower court erred in dismissing the bill in favor of defendant Hippler because: "At the hearing on the bill in aid of execution, defendant Hippler was not present, nor was he represented by counsel." There is no merit to this contention.

A transcript of testimony of all defendants was taken in the Oakland county circuit court commissioner's court. The transcript was not submitted to the trial court. Plaintiff contends "that said transcript contains proof of the fraudulent conveyance" and that "it was incumbent upon the lower court to request its production for consideration, both in the composition of the pretrial statement and in making its decision on the bill in aid of execution. The lower court's failure to do so constituted error and an abuse of discretion."

We do not agree with plaintiff-appellant.

Affirmed. Costs to appellees.

DETHMERS, C.J., and CARR, BLACK, EDWARDS, KAVANAGH, and SOURIS, JJ., concurred.

OTIS M. SMITH, J., took no part in the decision of this case.

[*] For amendments see 352 Mich xv. REPORTER.