McNary v. City of Taylor , 41 Mich. App. 556 ( 1972 )

41 Mich. App. 556 (1972) 200 N.W.2d 772

McNARY
v.
CITY OF TAYLOR.

Docket Nos. 11899, 13133.

Michigan Court of Appeals.

Decided June 27, 1972.

Schlussel, Lifton, Simon, Rands & Kaufman, for plaintiffs.

Miller, Canfield, Paddock & Stone (by Charles L. Burleigh, Jr.) and William R. Kliber, for defendant.

Before: V.J. BRENNAN, P.J., and QUINN and O'HARA,^[*] JJ.

Leave to appeal denied, 389 Mich. 756.

QUINN, J.

An understanding of the questions presented by these appeals requires a chronological, detailed recitation of what occurred prior to the trial court rulings appealed from.

January 28, 1971, Judge Bell granted summary judgment in favor of plaintiffs which declared defendant's zoning ordinance 70-11 void. On the same date, an injunctive order entered restraining defendant from enforcing the ordinance as to plaintiffs' property. Defendant filed a claim of appeal which was docketed as our file No. 11208. This appeal was dismissed for lack of progress April 10, 1972, and nothing has been done to reinstate it.

February 1, 1971, plaintiffs tendered their application for a building permit to defendant. The application was refused although other applications were being accepted. February 4, 1971, plaintiffs filed a motion for mandamus to compel defendant to accept the building permit application. An order to show cause entered setting a hearing for February 8, 1971. On the latter date, Judge Bell was on vacation and his alternate, Judge Burdick, presided.

In defense to the request for mandamus, defendant contended that the automatic stay provision of GCR 1963, 530.1 applied and that the January 28 order of Judge Bell was not yet enforceable. Judge Burdick indicated that he would have granted a writ of mandamus but that he could not due to the automatic stay rule referred to above. The application for mandamus was dismissed by an order dated March 5, 1971, and signed by Judge Bell.

On the evening of February 8, 1971, defendant enacted a new zoning ordinance 71-15 which substantially contained the provisions of invalidated ordinance 70-11.

March 8, 1971, plaintiffs moved for a rehearing on the March 5th order denying mandamus. This motion was heard March 26 and April 2nd. On the latter date, Judge Bell granted mandamus nunc pro tunc as of February 4, 1971. Defendant appeals this action in case No. 11899. In case No. 13133, plaintiffs appeal Judge Burdick's February 8, 1971 denial of mandamus. The latter appeal we consider to be needless and as improvidently granted for three reasons. First, Judge Burdick never signed an order implementing the denial of February 8, and a court speaks through its orders. Jurisdiction of this Court is confined to appeals from judgments or orders, MCLA 600.308; MSA 27A.308. It is not possible to review Judge Bell's nunc pro tunc order of April 2, 1971, without ruling on Judge Burdick's denial of the application for mandamus.

Defendant raises two issues which we dispose of summarily. It contends that because Wayne circuit court rule 9.4(c) was not complied with, plaintiffs' motion for mandamus was improperly filed. This point was not raised below and it is not before us, Poss v Rossen-Poss Agency, Inc, 3 Mich. App. 726 (1966).

Defendant maintains that GCR 1963, 529.2 prohibited Judge Bell from issuing the order of April 2, 1971. We find the rule inapplicable. The April 2 order of Judge Bell vacated the March 5 order of Judge Bell.

Defendant states its final contention in the following form:

"The court below was without power to issue mandamus absent a showing that, at the time of the hearing, McNary had a clear legal right to the performance of a specific and ministerial act and Taylor had a clear legal duty to perform such act."

Its argument in support of this position is that ordinance 71-15, validly enacted February 8, 1971, was in force on April 2, 1971, and under it, plaintiffs did not show a clear legal right to the performance of a specific and ministerial act and that defendant had a clear legal duty to perform the act, citing Franchise Realty Corp v Detroit, 368 Mich. 276 (1962). The case before us is distinguishable from Franchise. Plaintiffs here sought mandamus to enforce a prior judgment. Franchise involved a determination of the rights of the parties in the first instance and pending that determination, the trial court permitted pleading amendment to include an amendatory ordinance as a defense. Here defendant conceded that plaintiffs' rights were fixed by the judgment of January 28, 1971, by amending the ordinance on February 8, 1971, and by abandoning the appeal from the judgment of January 28, 1971. We decline to follow Franchise as controlling precedent.

Had it not been for Judge Burdick's mistaken belief^[1] that GCR 1963, 530.1 prevented him from acting on plaintiffs' February 4, 1971 motion for mandamus, plaintiffs' right to relief would have been determined according to plaintiffs' rights as of February 4, 1971. Judge Bell recognized this fact by ordering defendant to accept the application for building permit and to act on it pursuant to ordinances and procedures that were valid February 4, 1971. This action was not only proper; it was dictated by the record before Judge Bell.

Affirmed with costs of both courts to plaintiffs.

All concurred.

NOTES

[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

[1] See GCR 1963, 530.3.