I am in full accord with the result reached by Mr. Justice McALLISTER on the merits of the instant case. However, notwithstanding it is not necessary to decision, he has written at length concerning the power of this court under Court Rule No. 64 (1933) to review in the manner provided in the rule determinations of controverted issues of fact on appeal in nonjury law cases. His conclusion, as I understand, is that, in so far as the rule provides that this court upon such appeals may review issues of fact for the purpose of ascertaining whether the determination of the lower court was against the preponderance of the evidence, it is unconstitutional. With such conclusion I disagree.
In his opinion my Brother states that the plaintiff "on appeal seeks to have this court weigh the evidence *Page 644 to ascertain whether or not it preponderates in favor of plaintiff. Counsel contends that, on appeal in law cases tried before the court without a jury, the review in the Supreme Court is a trial de novo." My Brother concludes:
"On review of law cases tried without a jury, we do not either retry the issues between the parties, or weigh the evidence to determine which preponderates or has the more convincing force; nor do we hear such causes de novo, nor determine them according to the practice in equity cases. Unless the verdict or judgment is against the clear preponderance of the evidence, it is not disturbed on appeal."
How can this court determine that the judgment of the trial court is or is not "against the clear preponderance of the evidence," unless this court weighs the evidence as presented to it in the record on appeal? If my Brother's opinion could be construed to be limited by the sentence last above quoted, I could subscribe to the result reached; but unfortunately many statements in his opinion seem to me to go far beyond this limitation. In this connection he says:
"And it is clear * * * that, although this method of review (by writ of error) may be designated an appeal, such appeal does not enlarge or change the right or scope of review as heretofore existing by writ of error which brings up the record for review of errors of law and not of fact."
Clearly the above conclusion cannot be sustained if under our Constitution this court has the power to regulate its practice and procedure in the manner provided in Court Rule No. 64 (1933). The pertinent portion of the rule reads:
"Upon appeal to the Supreme Court from a judgment in an action at law tried without a jury, such *Page 645 judgment may be affirmed or reversed, the cause remanded with directions, or a new trial ordered. Appellant may assign as error that the judgment is against the preponderance of the evidence."
The issue is whether this court under the Constitution has the power to promulgate such a rule. If it has, then on appeal from a judgment in a nonjury law case, if such judgment is challenged in that particular, it is the duty of this court to determine whether "the judgment is against the preponderance of the evidence."
The relevant provisions of the Constitution of 1908 are found in article 7. They contain the following:
"SECTION 1. The judicial power shall be vested in one Supreme Court, circuit courts, probate courts, justices of the peace and such other courts of civil and criminal jurisdiction * * * as the legislature may establish. * * *
"SEC. 4. The Supreme Court shall have a general superintending control over all inferior courts; and shall have power to issue writs of error, habeas corpus, mandamus, quowarranto, procedendo and other original and remedial writs, and to hear and determine the same. In all other cases it shall have appellate jurisdiction only.
"SEC. 5. The Supreme Court shall by general rules establish, modify and amend the practice in such court and in all other courts of record, and simplify the same.
Under the above constitutional provisions all judicial power is vested in the Supreme Court and other inferior courts (art. 7, § 1) over which the Supreme Court has supervision and control (art. 7, § 4). With judicial power thus vested by the Constitution, it seems too clear for argument that the power to regulate procedure is inherently vested in the Supreme *Page 646 Court, to be exercised under its rule-making powers. The express provision of the Constitution is:
"The Supreme Court shall by general rules establish, modify and amend the practice in such court and in all other courts of record, and simplify the same." (Article 7, § 5.)
In reviewing determination of controverted issues of fact in nonjury law cases under Court Rule No. 64 (1933), we still act only as an appellate court. This we do under the constitutional provision: "In all other cases it (the Supreme Court) shall have appellate jurisdiction only." Article 7, § 4. For the purpose of exercising its powers as an appellate court, this court may inaugurate and utilize any appropriate writ or procedure as in its judgment may be deemed fit. Otherwise its plenary power granted by the Constitution to superintend and control inferior courts is restricted and does not measure up to its full constitutional investment of judicial and supervisory powers. While the Constitution provides by enumeration certain original writs which the Supreme Court has power to issue, it is worthy of note that this provision is not restricted, because the Constitution expressly gives this court power to issue "other original and remedial writs, and to hear and determine the same." But as just above noted, Court Rule No. 64 (1933) pertains solely and only to appellate procedure in the Supreme Court; and article 7, § 4, of the Constitution vests this court with plenary, supervisory and appellate powers, and section 5 gives it rule-making power to enable it to function. No provision can be found in the Constitution which forbids review in law cases by this court by appeal. This is true because the proceeding is wholly appellate, not original, and does not involve the issuance *Page 647 of an original writ. But, assuming that issuance of an original writ were required on such appeals, this court by express constitutional provision is empowered to issue "other original and remedial writs."
Even if we were to concede that a review of law cases in this court is confined to the same character of review formerly obtainable by writ of error, still it does not follow that issues of fact cannot be reviewed in law cases under the court rule providing for such practice. Even when appeal in law cases was by the common-law writ of error, the long-established practice in this jurisdiction permitted review of testimony as to essential facts, if under such writ of error there was an assignment that the finding or judgment of the court was contrary to the clear or overwhelming weight of evidence. 3 Comp. Laws 1929, § 14266 (Stat. Ann. § 27.995); Kotzke v.Kotzke's Estate, 205 Mich. 184; Hamburger v. Bank of Detroit,218 Mich. 173. Under Court Rule No. 64 (1933) in its review on appeal in nonjury law cases this court does nothing more nor less than to determine whether "the judgment is against the preponderance of the evidence," in event such an assignment of error is urged. It is difficult to conceive how this practice under the rule upon appeal differs materially from the former practice of this court upon issuance of its writ of error. This is true notwithstanding decisions almost without number can be found wherein in substance it is stated that the writ of error brings up for review only questions of law, not questions of fact. Such statements must be read and construed in connection with the following stated by my Brother McALLISTER in his opinion:
"However, it is important to bear in mind that while the writ of error brings up for review only *Page 648 errors of law, and not of fact, a finding of fact may in itselfbe an error in law. Styles v. Tyler, 64 Conn. 432 (30 A. 165); Fernald v. Bush, 131 Mass. 591; The E. A. Packer,140 U.S. 360 (11 Sup. Ct. 794); Bedlow v. New York Floating DryDock Co., 112 N.Y. 263 (19 N.E. 800), 2 L.R.A. 629;Kennedy v. Porter, 109 N.Y. 526 (17 N.E. 426)."
Under Court Rule No. 64 (1933) it may be said that the determination by this court of whether "the judgment is against the preponderance of the evidence" is a question of law rather than one of fact. This is true because, generally speaking, a judgment in a law case which is entered in favor of the party having the burden of proof, notwithstanding the preponderance of the evidence is to the contrary, is a judgment entered in violation of law. So viewed, the scope of the appeal provided by Court Rule No. 64 (1933) is not violative of the Constitution even under the construction adopted by my Brother.
I am quite in accord with my Brother that since the writ of error is a writ for which provision is made in the Constitution, this court could not by the exercise of its rule-making power abolish such writ nor could the legislature by statutory enactment abolish it. But in this connection it may be noted that no attempt has been made either by rule or statute to abrogate or abolish the writ of error.
In passing it may be pertinent to note that my Brother digresses from the issue under consideration when he states in his opinion:
"The question of the unconstitutionality of Court Rule No. 75 (1931) providing for review of law cases, according to the practice in equity cases, appears never to have been raised in any adjudicated cases, or otherwise brought to the attention of this court."
We are not now concerned with the well-established practice that in appealed law cases we do not *Page 649 enter judgment in this court, though we may in equity appeals. The same aspect of practice in this State as we now have before us was given serious consideration by this court at the time of its decision in Valentine v. Malone, 269 Mich. 619 (97 A.L.R. 326). Mr. Justice POTTER, in a painstakingly prepared and forceful opinion, presented in a large measure the same reasons urged in support of the same contention and conclusion as is now presented by my Brother in the instant case. No other member of the court concurred with this phase of Justice POTTER'S opinion, but instead decision of the case was planted on other grounds.
The phase of our practice now under consideration was inaugurated by the court rules of 1931. Unlike my Brother McALLISTER, I fail to find that Court Rule No. 75 of the 1931 Court Rules differed materially, for purposes now under consideration, from the present Court Rule No. 64 (1933). The former rule read:
"Upon appeal from a judgment rendered in an action at law tried without a jury, such judgment may be affirmed, reversed or modified, in whole or in part, and a final judgment shall be entered either by the Supreme Court or by the trial court, according to the practice in equity cases."
Court Rule No. 64 (1933), is hereinbefore quoted in part. In the 1933 rules the former provision of entering judgment in the Supreme Court in a law case "according to the practice in equity cases," was stricken, it being deemed not advisable to enter such judgments in this court; and the following was added:
"Appellant may assign as error that the judgment was against the preponderance of the evidence; but on appeals in civil cases error cannot be assigned for *Page 650 total lack of evidence on a material question unless such lack of evidence has been called to the attention of the court during the trial or on motion for a new trial."
In making the changes above noted it was not the intention of the members of this court who adopted the modified rule to lessen in any way the power of the court to review nonjury law cases as provided in the 1931 rules. It follows that, regardless of whether at the time of decision the 1931 rules were in force or the 1933 rules, in so far as pertinent to this phase of appeals, our former decisions should be given consideration. The following cases are expressive of this court's conception of the scope of its review on appeals in nonjury law cases:
"In urging that the judgment for $4,500 is excessive, appellant's counsel rely much upon the practice provided by our recently revised court rules under which the review of nonjury law cases is by hearing de novo in this court. * * * We have reviewed the record with care and find no reason for differing with the trial judge as to the amount of damages awarded."Oakes v. Van Zomeren, 255 Mich. 372. (Decided October 5, 1931.)
"While, under Court Rule No. 75 (1931), we may consider the case de novo, we are unwilling to determine the correctness of the amount of damages without some indication by the trial judge who has heard all of the testimony and seen the witnesses, of what the amount should be." Collins v. Hull,256 Mich. 507. (Decided January 4, 1932.)
In his work on Michigan Court Rules, Judge Searl says:
"Under Court Rule No. 75 (1931), held that it was intended that nonjury cases should be heard in Supreme Court de novo. (Citing several cases.)" *Page 651 Searl's Michigan Court Rules, (4th Ed.), Court Rule No. 64 (1933), and note.
Among the more recent cases wherein our decision clearly indicates that we accepted and proceeded under the practice provided in Court Rules No. 75 (1931) and No. 64 (1933) are the following: Burchard v. Otis Elevator Co., 261 Mich. 142;Sullivan v. Bennett, 261 Mich. 232 (87 A.L.R. 791); Fyan v.McNutt, 266 Mich. 406; and Bugbee v. Fowle, 277 Mich. 485, in which we said:
"In reviewing law cases tried without a jury, we are not bound by the findings of fact made by the trial court but consider the record as a whole."
Much to the same effect as the above noted cases, seeRoger Angstman Co. v. Liggett Spring Axle Co., 267 Mich. 620;Baumgartner v. St. Armour, 276 Mich. 650.
Clearly it is not wholly accurate to say that our review of a nonjury law case is de novo. Instead our review of the factual aspect of such a case is limited to consideration of the record on appeal for the purpose of determining whether "the judgment is against the preponderance of the evidence," if error in that particular is assigned. Such is the practice provided in Court Rule No. 64 (1933). Under the Constitution the court is invested with power by rule-making regulation to provide for such practice, and we must conclude that Court Rule No. 64 (1933) is not violative of the Constitution of this State.
It appears to me that Justice McALLISTER has wrongly indulged in the assumption that the limitations of review by writ of error are likewise the limitations of the power of this court to review proceedings had at law in an inferior court. We ought *Page 652 not to be misled by erroneously assuming that review in this court of law cases has been or is by writ of erroronly. Such is not and never was the law in this State. Nowhere in the Constitution is it expressly or impliedly provided that such review is by writ of error only. Instead, plenary judicial power is constitutionally vested in this court, including "power to issue writs of error, habeas corpus, mandamus, quowarranto, procedendo and other original and remedial writs, and to hear and determine the same;" and in addition to such original proceedings this court also has full appellate jurisdiction over inferior courts. Const. of 1908, art. 7, § 4. Inspection of this court's earlier decisions in appeals of law cases discloses that in very many, perhaps in most, such appeals the proceedings were not by writ of error, but instead by case made. Other reviews in law cases were by mandamus, quowarranto, certiorari, et cetera. And in this connection it is worthy of note that in recent years reviews in law cases are not uncommonly by certiorari, notwithstanding the writ of certiorari is not mentioned in the pertinent portion of our Constitution, except as it is clearly included in "other original and remedial writs."
Nor should we erroneously assume that the provisions of Court Rule No. 64 (1933) may be extended to the review of cases tried by juries, and thereby a litigant be deprived of his constitutional right to trial by jury.* Instead, this constitutional right is and must be preserved; but it does not follow that one may not waive his constitutional right. People v. Henderson, 246 Mich. 481; Attorney-General, ex rel. O'Hara, v. Montgomery, 275 Mich. 504, 526. Court Rule No. 64 is applicable only to those cases wherein the litigants have waived a jury and submitted trial of the issues of fact to the court. It is idle to talk *Page 653 about practice under this rule being extended to the review of a case tried by jury, and a litigant being thereby deprived of his constitutional right.
It should not be assumed that review of findings of fact by a trial court is limited to the same procedure as is permissible in a case tried by a jury. Certainly there is no such provision in our Constitution. Broader review of nonjury law cases than of jury cases was the prevailing practice in this court prior to 1867, and such practice has again been reestablished and has prevailed since the passage of the judicature act in 1915 (Act No. 314, Pub. Acts 1915). See 3 Comp. Laws 1929, § 14266 (Stat. Ann. § 27.995). The change of character and scope of review of nonjury law cases on appeal to this court has resulted from legislative enactments regulating practice and procedure. This is made clear if we recall the history of this phase of practice in this court.
Beginning with Act No. 179, Pub. Acts 1851 the practice on appeals in nonjury law cases specifically provided for review in this court of questions of fact as well as questions of law. This provision in the act of 1851 was reembodied in Act No. 91, Pub. Acts 1853 (See 2 Comp. Laws 1857, § 3438) and the provided practice continued until 1867, during which period the Constitution of 1850 was operative; and it may be noted that the pertinent provision of our present Constitution is the same as that of the Constitution of 1850. All during this time (1851 to 1867) on appeal to the Supreme Court in a nonjury law case the findings of fact of the trial judge, as well as his determination of questions of law, were reviewable. In the act of 1853 it is provided:
"SECTION 1. That all issues of law shall be tried by the court, and all the issues and questions of fact shall be tried by the court, unless a jury be demanded *Page 654 by one of the parties, in a manner prescribed by the rules of court. * * *
"SEC. 4. Either party desiring a review upon the evidence appearing on the trial, either of the questions of fact or of law, may, within such time as shall be prescribed by the rules of court, make a bill of exceptions, in the same manner, and with the same effect as upon a trial by a jury, or a case, containing so much of the evidence as may be material to the question to be raised."
The noted statutory provisions governing the practice on appeal of nonjury law cases were followed by this court until 1867. The decisions of this court for that period are reported in volumes 2 to 15 of the Michigan Reports. In an early review by this court of a nonjury law case on case made, the following is appended to the court's opinion and seems to be a part thereof:
"The position of the case in this court is similar to that of a case heard in chancery on pleadings and proofs, and appealed to this court. The facts are supposed to be all before the court, and the decision upon them (by the Supreme Court) disposes of the case." Barman v. Carhartt, 10 Mich. 338.
Among other nonjury law cases which were appealed to this court for review of controverted issues of fact during this period (1851 to 1867) the following, in addition to the one just above cited, may be noted: Rose v. Lewis, 10 Mich. 483;King v. Moore, 10 Mich. 538; Brown v. Cady, 11 Mich. 535, and Gray v. Howard, 12 Mich. 171.
Following the practice established during the period above covered, this phase of the law was changed by Act No. 142, Pub. Acts 1867. By this legislation the 1853 provision for "review upon the evidence * * * of questions of fact," was deleted. *Page 655 The practice thus changed on appeals in nonjury law cases was closely followed by this court until 1915. It is because of the statutory change made in this type of appeals that during the long period from 1867 to 1915 the decisions of this court in reviewing nonjury cases, as well as jury cases, are confined to consideration of questions of law. Hence such decisions are of no persuasive force whatever as tending to sustain the contention that they are indicative of constitutional interpretation or that this court is without power on appeals in nonjury law cases to review determination of issues of fact.
In 1915 the judicature act was passed, and again the practice on appeals in nonjury law cases was changed and broadened. The section of the judicature act (Act No. 314, chap. 18, § 15, Pub. Acts 1915, as amended by Act No. 276, Pub. Acts 1929), which is of like purport as of Act No. 91, § 4 Pub. Acts 1853, reads:
"In cases where the court files written findings of fact or answers to special questions either party may file exceptions to such findings of fact or answers, on the ground, that such findings or such answers are against the clear weight of the evidence, and may assign error upon such exceptions, and if an appeal be taken, the same shall be reviewed by the Supreme Court." 3 Comp. Laws 1929, § 14266 (Stat. Ann. § 27.995).
Since the enactment of this statute, the uniform practice of this court in reviewing nonjury law cases has been broadened and of a character that was not obtainable under the former practice, in that we have reviewed the testimony in nonjury law cases and determined whether the decision of the trial judge on controlling issues of fact was against the clear preponderance of the evidence. I know of no decision *Page 656 of this court since 1915 holding to the contrary. Many of our decisions rendered since 1915 disclosing that on appeal in nonjury cases we have reviewed the testimony to ascertain whether decision of the trial judge was "against the clear weight of the evidence" might be cited, among themDows v. Schuh, 206 Mich. 133; Standard Pickle Co. v. RailwayCo., 222 Mich. 639; Kriss v. Field, 241 Mich. 42, andLeonard v. Hey, 269 Mich. 491 (37 N.C.C.A. 111).
It all comes to this: These changes in the scope of our review on appeals of nonjury law cases have been in accord with and due to changes in the statutory regulations of such reviews. The decisions from 1867 to 1915 which hold that this court did not then review issues of fact on appeals in nonjury cases do not tend to sustain the contention that our constitutional power to review issues of fact decided by a trial judge is limited to our right to review on writ of error findings of fact by a jury.
On this phase of the law, which has been needlessly injected into the instant case, the sole question is this: Has this court the right and power under the Constitution to review nonjury law cases in the manner and to the extent provided in Court Rule No. 64 (1933). It seems clear that under the sections of the Constitution quoted in the earlier part of this opinion, this court has that right and power; and it follows that the rule is not unconstitutional.
BUTZEL, C.J., and WIEST, BUSHNELL, SHARPE and CHANDLER, JJ., concurred with NORTH, J.
* See U.S. Const. Am. 7; Const. 1908, art. 2, § 13. — REPORTER. *Page 657