Electric Park Amusement Co. v. Wayne Circuit Judge

Mandamus — Issuance—Discretion—Equity. Mandamus is a discretionary writ and will not be issued except to enforce a clear legal right and in furtherance of justice ; and relators, who were parties defendant to a bill for the foreclosure of a mortgage, filed a plea, the material provisions of which were waived by the subsequent conduct of relators, which, on complainant’s "motion, was stricken from the files, are not entitled to a writ to set aside said order.

Mandamus by the Electric Park Amusement Company and another to compel Alfred J. Murphy, circuit judge of Wayne county, to vacate an order appointing a trustee. On October 23, 1905, the Electric Park Amusement Company executed to the Union Trust Company, trustee, a first mortgage upon its real estate in Detroit to secure an issue of $80,000 of its first mortgage bonds. Subsequently it conveyed its said real estate to the Electric City Amusement Company, subject to said mortgage. On April 1,1907, the last-mentioned amusement company mortgaged said property to the Union Trust Company, trustee, to secure an authorized issue of $300,000 of second mortgage bonds, of which $123,100 were outstanding at the time the bill of complaint hereinafter referred to was filed. Being then the mortgagee in both mortgages, and acting under the command of a majority in amount of the bondholders secured by the first mortgage, said Union Trust Company, acting as trustee, filed a bill to foreclose said first mortgage. On May 14, 1908, the Union Trust Company gave notice to the Electric City Amusement Company of its resignation as trustee under the second mortgage, pursuant to the provisions of said mortgage, with its reason therefor, viz., its obligation to foreclose said first mortgage. The bill was filed on May 18, 1908; relators and the Union Trust Company, trustee, under the second mortgage, being made defendants. Relator thereafter, and on August 15, 1908, filed a plea, alleging, in substance, that under the provisions of said second mortgage a notice of three months was requisite to a resignation by said trustee before it could resign ; that it attempted to tender its resignation on May 14, 1908, without previous notice, but it was not thereby relieved of its trust; that in its bill filed four days later it was named as a defendant, and that its rights and interests as trustee under said two mortgages were adverse and inconsistent, and no person interested in said second mortgage as cestui que trust is made a party; and that no successor had been chosen to succeed to said trust. The plea asked that the relators be not required to answer, and that the bill be dismissed as to them. No further action was taken in said cause until January 28, 1909, when the complainant in said cause filed a motion to strike said plea from the files. The affidavit in support of said motion shows that it gave notice of its desire to resign on the 9th of May, 1908, to the relator and to the several holders of bonds secured by said second mortgage, and called a meeting of said bondholders for May 13, 1908, that at said meeting it stated that it had been directed to foreclose said first mortgage, and requested said bondholders (then and there assembled) to accept said resignation, but the counsel of said bondholders refused to accept said resignation or to recommend the appointment of a successor as trustee. Its resignation in writing was tendered, and subsequently the bill was filed as stated. Afterward repeated efforts were made to induce said bondholders and said company to accept said resignation but without avail; George W. Radford, its counsel, representing also a majority in amount of its bondholders, refusing to do so, and subsequently filing said plea on August 15th. On August 19th said resignation was accepted, and on the same day the Detroit Trust Company was appointed its successor as trustee. Thereafter said Radford was requested, but refused, to withdraw said plea. The .motion was granted. Thereupon relators representing both of said amusement companies filed the petition in this cause, asking a mandamus to compel the vacation of said order.