Thompson v. Bay Circuit Judge

1. Discontinuance—Stipulation—Setting Aside—Mandamus. An order striking a stipulation to discontinue without costs from the files, on the ground that it was obtained by deception, unless within 30 days plaintiff pays the costs therein or discontinues a subsequent suit for the same cause of action, does not involve the question whether the settlement of the cause of action was fraudulent, but merely requires plaintiff to proceed with his cause or pay the costs, and mandamus will not be granted to vacate it. 2. Same—Fraud. The circuit court on motion and proper showing may set aside a discontinuance fraudulently obtained.

Mandamus by Martha J. Thompson to compel Theodore F. Shepard, circuit judge of Bay county, to set aside an order striking a stipulation of discontinuance from the files. Petitioner brought suit in the circuit court of Bay county against the city of West Bay City for negligent personal injury, and had judgment, which was reversed on error in this court. Thompson v. City of West Bay City, 137 Mich. 94. The attorneys of the parties afterward stipulated to discontinue the cause without costs to either party, and petitioner subsequently brought another suit for the same injury against the city and another. Thereupon the city obtained an order striking the stipulation of discontinuance from the files unless petitioner should pay the accrued costs within 30 days or discontinue the second suit as to the city, on the grounds that the stipulation was obtained by deception, and that the understanding of the city’s attorney was that it was made for the purpose of terminating the litigation. Petitioner applies for mandamus to compel the circuit judge to set aside the order striking off the discontinuance, on the ground that the question of fraud presented could not be tried on motion and affidavits.