TOWNSEND v. JACKSON CIRCUIT JUDGE.

1. PRACTICE-DISCONTINUANCE-Costs.

Upon the discontinuance of a cause as to one defendant, at the time of trial, under Circuit Court Rule 27, subd. b, the right to an immediate payment of costs may be waived by suffering an order of discontinuance to be entered and the trial to proceed.

2. SAME-STATUTES.

The rights of such defendant to taxable costs are not dependant upon 3 Comp. Laws, § 11236, requiring a certificate of the circuit judge that the joinder was unnecessary or unreasonable.

3. JUDGMENTS-CONDITIONAL ORDER VACATING.

An order vacating the judgment obtained by plaintiff against the other def ndant, unless the costs awarded on the discontinuance were paid within 24 hours, is unauthorized.

4. MANDAMUS-ORDERS REVIEWABLE.

In Michigan the practice prevails of reviewing the taxation of costs on mandamus.

5. SAME.

Quare-Whether a conditional order vacating a judgment may be reviewed on mandamus.

Mandamus by Lemuel C. Townsend to compel James A. Parkinson, circuit judge of Jackson county, to vacate an order awarding costs. Submitted April 27, 1909. (Calendar No. 23,345.) Writ granted June 7, 1909.

Frank L. Blackman, for relator.

Grove H. Wolcott, for respondent.

HOOKER, J. Relator brought assumpsit against Lewis K. Kent and Lou Edda Kent, husband and wife, by attachment; the affidavit alleging the existence of an express contract. Upon the trial, and after the conclusion of the proof, relator moved that he be allowed to discon

tinue against Lou Edda Kent, under Circuit Court Rule 27; the proof failing to show that she was a party to said contract. An order of discontinuance was thereupon entered in her favor, and, the cause being submitted to the jury, a verdict and judgment were rendered as against Lewis K. Kent. Circuit Court Rule 27, subd. b, provides:

"(b) When an action is brought against several persons, the plaintiff shall, at any time before the final submission of the cause, be allowed to discontinue as against any of the defendants, upon the payment of costs to them, as in case of nonsuit, and upon such other terms as the court shall direct, and the plaintiff may thereupon amend his declaration, and proceed against the other defendants in like manner, as if the action had been originally brought against them alone.

Relator was afterwards served with a motion to set aside the judgment against Lewis Kent because no costs had been paid to Lou Edda Kent, and at the same time with a bill of costs, with notice of taxation, and at the proper time and place he appeared and objected to such taxation upon the ground that no certificate that the joinder of Mrs. Kent was "unreasonable and unnecessary" had been made by the judge in accordance with 3 Comp. Laws, § 11263, which provides:

"SEC. 8. If in any action founded upon a contract, the plaintiff fail to recover against one of several defendants on the trial, or if judgment on a plea in abatement, or on demurrer, be rendered in favor of one of several defendants; or if, by the plaintiff's discontinuing as to such defendant, he be acquitted; such defendant shall not be entitled to recover costs, unless a certificate be given by the judge or court before whom the trial shall be had or the judgment shall be given, and be entered in its minutes, that such defendant was unreasonably and unnecessarily made a party to such action."

After the costs had been taxed in favor of Lou Edda Kent, relator moved the circuit court for an order setting aside and disallowing the taxation of costs of Lou Edda Kent, and this motion and that of Lewis K. Kent were

heard together. The court overruled relator's motion, and entered an order confirming the taxation made by the clerk, and providing further that the verdicts and judgments theretofore rendered be vacated and set aside, unless the plaintiff (relator) "shall within 24 hours pay said costs and an attorney's fee of $5." Relator thereupon obtained an order to show cause why a mandamus should not issue to require the circuit judge to vacate said order, and the cause is before us on the answer of the judge. The answer shows that neither defendant asked payment of costs before amendment or trial.

Defendant Lou Edda Kent had a right to ask payment of costs before discontinuance, but she did not insist upon it; her counsel permitting the entry of the order of discontinuance the amendment and trial, without protest. This was a waiver of the condition of immediate payment, and she must depend upon her execution for the collection of her judgment. On the other hand, the learned circuit judge did not err in refusing to hold that the defendant was not entitled to costs. It is true that, had plaintiff proceeded under 3 Comp. Laws, § 11263, he would have been protected by its provisions; but he chose to proceed under the rule which gave him the right to discontinue upon the trial with a right to amend. The statute has no application under the circumstances. We must therefore deny the prayer of relator's petition as to the vacation of defendant's order, but we are constrained to hold that the order vacating the judgments cannot stand, and the same must be vacated.

It is urged that mandamus is not a proper remedy for the reason that the order is final and reviewable on error. It has been usual to review the action of the circuit courts on retaxation of costs by mandamus. As we said in Schmidt v. Wayne Circuit Judge, 136 Mich. 658 (99 N. W. 877), the practice is anomalous, and might in some cases be productive of some unnecessary proceedings. The practice is settled, however, and will be followed, unless hereafter changed by rule. There is perhaps more

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doubt of the remedy in relation to the conditional order of the judge in relation to the judgments. If it can be considered final, and perhaps it ought to be, error should be the remedy, for the record seems to show the facts upon which the alleged error is based. In view of the peculiar situation, we dispose of both questions without determining the latter question of practice, leaving that for future consideration if opportunity shall offer in another case. The writ will issue as indicated.

BLAIR, C. J., and MOORE, MCALVAY, and BROOKE, JJ., concurred.

NICHOLLS v. BOYNE CITY LUMBER CO.

EQUITY-ADEQUATE REMEDY AT LAW-EJECTMENT.

Equity has no jurisdiction to eject the claimant of lands in possession under a disputed claim of ownership, although the bill of complaint prays the determination of riparian rights and incidental relief.

Appeal from Charlevoix; Mayne, J. Submitted April 28, 1909. (Docket No. 121.) Decided June 7, 1909.

Bill by John Nicholls and Mary R. Morgan against the Boyne City Lumber Company to determine the boundary and riparian rights of certain real estate. From an order overruling a demurrer to the bill, defendant appeals. Reversed, and bill dismissed.

Henry A. Jersey and George E. Nichols, for complainants.

J. M. Harris, for defendant.

BROOKE, J. In this cause the complainants filed their bill of complaint, averring that they and their grantors by mesne conveyances had in 1879 become the owners of the southwest fractional quarter of section 35, town 33 north, range 6 west, bordering upon the shore of Pine Lake; that they proceeded to plat that portion of it lying along the lake shore and east of the section line between sections 34 and 35, and that portion of said plat adjoining immediately said section line was described as "block J;" that the defendant owns block J, and by reason thereof is entitled to and owns all that accretion added to said water front of said block J since 1882, and immediately northeast of the said northeast boundary of said accretion of complainants, and adjacent thereto very nearly north 117 feet on the present shore line, and do own 309.55 feet of the present shore line measured from the said section line southeast, and that these complainants own, to wit, 168 feet on the present shore line mediate the said 117 feet and 309.55 feet of said defendants; that the defendants in 1903, without the knowledge of the complainants, unlawfully entered upon the premises above described and erected thereon a sawmill and railroad tracks, and a large tank, and placed thereon logs and lumber, and drove piles into the ground beneath the water of said appurtenant water rights, and put booms and logs thereon, and are now continuing said acts.

The relief prayed is:

"(1) That said particular description of land be decreed to belong to complainants, and that they are entitled to said appurtenant water rights.

"(2) That the said boundaries of these complainants' lands and water rights, as described and defined herein, be determined and decreed to be the proper and lawful boundaries thereof.

"(3) That the court fix and determine the extent of said line of navigability, and that the court fix, define, and determine the boundaries and extent of all navigable and wharfage rights and privileges of said complainants appertaining to their said lands so herein described as afore