Spaulding v. O'Connor, 119 Mich. 45; Auditor General v. Sparrow, 116 Mich. 574. Decree reversed, and petition dismissed, with costs. MONTGOMERY, MOORE, and LONG, JJ., concurred. HOOKER, J., did not sit. KELSEY v. WAYNE CIRCUIT JUDGE. MANDAMUS-DISSOLUTION OF INJUNCTION--REVIEW. Mandamus by Eber L. Kelsey to compel Edward D. Kinne, circuit judge, presiding in Wayne county, to vacate an order dissolving an injunction. Submitted February 7, 1899. Writ denied June 28, 1899. Moore & Moore, for relator. Humphrey & Grant, for respondent. HOOKER, J. A statement, in chronological order, of some of the more important facts upon which the question before us depends, will aid in making the case plain. Charles E. Kelsey was the owner of a lot of lumber. Some of it lay upon docks of the W. & A. McArthur Co., Limited, and some upon premises of the Cheboygan Lumber Company; these concerns having possession of, and liens for sawing upon, the respective portions of the lumber. Kelsey was in debt to others, and on October 15, 1895, executed to the complainant, the Union Trust Com pany, as trustee, two chattel mortgages, which were at once filed. The first of these secured three notes in favor of Eber L. Kelsey and Charley L. Kelsey. This mortgage was made subject to certain liens for saw bills and purchase price. The second mortgage secured other claims, including the two liens mentioned. On December 30, 1895, one Bowen, an unsecured creditor of Kelsey, attached this lumber in an action against Charles E. Kelsey. The sheriff, Ming, did not remove it, but put notices of the levy upon it, and put it under surveillance, and at all times claimed possession, until it was replevied from him by Eber L. Kelsey. On April 2, 1896, the complainant sold the lumber upon an alleged foreclosure of the first mortgage, and Eber L. Kelsey purchased it, with full notice of the claim made by the attaching creditor and sheriff. On being refused possession, he replevied it from Ming, the sheriff, and upon the trial he was defeated, and the sheriff recovered a judgment for the amount of the levy, the attachment case having gone to judgment. Upon review in this court, the judgment in the replevin case was reversed. See Kelsey v. Ming, 118 Mich. 438. From that decision it is evident that the validity of the chattel mortgages was in dispute, and this was held to be a question for the jury. It was also said that, if the first mortgage was valid, it was not extinguished by an irregular sale, but that the purchaser would succeed to the rights of the mortgagee. It was also held that, if the plaintiff had succeeded to the rights of the mortgagee and lienholders, the judgment of the attaching creditor could nct be given priority over such claims of the plaintiff without determining their validity, and a judgment for the amount of the claim would not be the proper one. After the reversal of the replevin case, the Union Trust Company filed a bill in this case in the circuit court for the county of Wayne, the replevin suit being pending in the county of Cheboygan. The bill alleges the various claims of the parties interested, and asks that the validity of the mortgages and liens and the rights of the parties be determined, and that in the meantime an injunction issue to restrain the defendant Ming from any further proceedings in the replevin case. An order was made allowing such injunction, upon condition that a bond in the sum of $1,500 be filed. This was not complied with, and the writ was not issued upon this order. Eber L. Kelsey was made a defendant, and he filed a cross-bill, setting up substantially the same state of facts alleged in the original bill. This also prayed a similar injunction, and an order like that made upon the original bill was made. This was complied with, and the writ issued. Ming answered, and made a motion to dissolve the injunction, which was granted, as shown by the following order: "In this case it is ordered that the order for the injunction on the bill and cross-bill is set aside, but without prejudice to the rights of the complainant in the original bill or cross-bill, or either of them, to apply to the judge of the circuit court for the county of Cheboygan, or the judge presiding at that court, for a renewal of said orders, or either of them, and the issue of new injunction or injunctions thereon; this court being of the opinion that each of said applications should have been made to the judge of the circuit court of the county of Cheboygan, or to the judge presiding in said court, and therefore it did not pass upon the merits of the applications for or the issuing of the injunction, or the rights of the parties to such injunction. [Signed] "E. D. KINNE, "Acting Circuit Judge." The present proceeding is an application for mandamus to compel the circuit court, in chancery, to vacate the order dissolving the injunction. In his return to the order to show cause, the learned circuit judge states that in his answer, which was sworn to, the defendant Ming denies all of the equities in the original bill, and, further, that respondent considered fully the merits of the matter brought before him in the motion to dissolve the injunction, and ordered the injunction to be set aside, but without prejudice to the right of the com plainant, or defendant Kelsey, to apply to the circuit judge of the county of Cheboygan, or the judge presiding at that court, for a renewal of said orders, or either of them, and that at the special request of the solicitors for the complainant in the cross-bill, after the defendant's solicitors had left the room, he incorporated into the order this language: "And therefore it did not pass upon the merits of the applications for or the issuing of the injunction, or the rights of the parties to such injunction." The return states further: "This language was put into said order for the reason that complainant's solicitors stated that the circuit court for the county of Cheboygan, upon his application, might refuse to hear the same on the ground that said application was res adjudicata, having been passed upon by this respondent, sitting as one of the judges of the Wayne circuit court; and that this respondent did not refuse to pass upon the merits of said motion for dissolution, as stated in the eighth paragraph of said petition. This respondent denies that he made any statement that the merits of said petition had not been considered, and alleges that the merits of said application were fully considered, but that he made the statement in said order that they had not been passed upon for the reasons alleged in the eighth paragraph of this answer. It also states: "This respondent avers that no bond was filed by the Union Trust Company, as complainant in the original proceeding, and no injunction was issued in said original cause, but that, after a full consideration of the merits of the whole proceeding, he made his order in both the original and cross actions, for the purpose of setting aside the order allowing the injunction in the original suit, and for dissolving the injunction issued in the cross action; and that he made said order of dissolution after full consideration of the case in the manner aforesaid, and after the same had been fully argued by counsel for the respective parties; and that if he had been so requested by Messrs. Moore & Moore, solicitors for the cross complainant, he would have immediately decided said motion for the dissolution of injunction upon the merits of said case; and that the only reason that this respondent did not pass upon the merits in making his order for dissolution was he was specially requested by Messrs. Moore & Moore, solicitors for cross complainant, to make the order in the form in which it now appears; and that said order, a copy of which is attached to the petition in this case, was prepared by Messrs. Moore & Moore, the solicitors for the cross complainant, and this respondent was requested to sign the same in the form in which it was drawn, and without passing upon the merits, so that they would not be concluded by such decision in any application that they might make to the circuit court for the county of Cheboygan in any subsequent proceedings taken by them; and that said order in its present form was made by this respondent for the benefit and protection, and at the urgent request, of Messrs. Moore & Moore, solicitors for the cross complainant in said action." The order, as explained by the return of respondent, indicates that the learned circuit judge, in the exercise of his lawful discretion, dissolved this injunction, but that he endeavored to so frame his order as not to preclude the complainant, or defendant Kelsey, from taking steps to procure another injunction in Cheboygan county, where the property was situated and defendant Ming resides. We cannot suppose that he meant to indicate the opinion. that an application could be made before the Cheboygan court in this proceeding, as counsel appear to claim, and his answer indicates the contrary. Counsel urge that the respondent should have passed on Mr. Kelsey's right to this injunction, and that, not having done so, his order should be vacated. Counsel say, in a letter accompanying the brief: "It is obvious that, should this court merely pass upon our right to have the injunction heard on its merits in the Wayne circuit court, we should regard an adverse decision in the Wayne circuit court as error, and immediately ask this court to determine whether or not the case was one for equitable interference. It seems to us, therefore, that the court will be able to determine our right to the injunction in this hearing, and obviate the necessity of repeating our application to the Supreme Court." From this we infer that counsel assume that we would |