Samuel Reiter Painting Co. v. Bill Miedler Homes, Inc. , 87 Mich. App. 75 ( 1978 )

87 Mich. App. 75 (1978) 273 N.W.2d 592

SAMUEL REITER PAINTING COMPANY
v.
BILL MIEDLER HOMES, INC.

Docket No. 77-2251.

Michigan Court of Appeals.

Decided November 7, 1978.

Leib & Leib (by Elliot P. Kramer), for plaintiff.

Samuel W. Barr, for defendant Zeev Miedler.

Before: N.J. KAUFMAN, P.J., and BEASLEY and P.R. MAHINSKE,^[*] JJ.

PER CURIAM.

On January 13, 1977, a judgment for $3,640.35 was entered against appellant in district court. Appellant appealed the judgment to the circuit court; however, that appeal was dismissed by the circuit court judge on motion of plaintiff because appellant did not file a bond for one and one-quarter times the amount of the district court judgment. We granted leave to appeal.

The circuit judge dismissed appellant's claim of appeal, holding that GCR 1963, 705.9 (repealed July, 1977) and GCR 1963, 701.7 (revised July, 1977) required appellant to file a bond for one and one-quarter times the amount of judgment as a condition of maintaining the appeal in circuit court. Appellant does not wish to stay execution on the district court judgment. He argues that, therefore, he should not be required to file a stay bond. Rather, he asserts that a bond covering the costs of appeal should be the only bond required.

The court rules governing appeals to the circuit court have been amended since appellant filed his claim of appeal in the circuit court. The new rules have prospective effect only. 400 Mich lxix (1977); Moore v Spangler, 401 Mich 360, 368; 258 NW2d 34 (1977). Therefore, we will consider appellant's claim under the court rules in effect at the time appellant filed his claim of appeal. We do not determine whether the same result would follow under the current court rules.

Old Court Rule 705.9 provided in pertinent part:

".9 Appeals; Required Acts of Appellant. In all appeals, within the time limited for taking an appeal, the appellant shall do the following:

"(a) File in the circuit court a bond as required under subrule 701.7; * * *." (Emphasis added.)

Old Court Rule 701.7 provided in part:

".7 Bond on Appeal; Stay of Proceedings. Unless exempted by law, the appellant shall file a bond with his claim of appeal, cross appeal, or order following appeal. The bond on appeal

"(1) shall be in a penalty not less than $200 and except for appeals from probate court, if the appeal is by a person against whom a claim has been asserted, it shall be not less than one and one-quarter the amount of the judgment or claim allowed. In appeals from the probate court, the court in which the bond is filed may in its discretion fix the bond in an amount found owing to the estate where a fiduciary's account has been disallowed or a claim has been allowed against a fiduciary incident to his administration of his trust or estate. In judgments for possession of land, the bond shall be in the amount and on the conditions provided for by statute." (Emphasis added.)

In construing these court rules, we are required to give words their normal meaning. Cf. MCL 8.3a; MSA 2.212(1). Old Court Rule 705.9 referred to required acts of appellant and it directed that the appellant shall file a required bond. Old Court Rule 701.7 provided that an appellant shall file a bond and the rule directed that the amount of bond shall not be less than a certain amount.

Both "require" and "shall" indicate an intent to make the provisions mandatory. Smith v School District No. 6, 241 Mich 366, 368-369; 217 NW 15 (1928); Law Department Employees Union v City of Flint, 64 Mich App 359, 368, 235 NW2d 783 (1975). Further, the use of the negative "shall not" also indicates an intent to make the provision mandatory. Connecticut Mutual Life Ins v Wood, 115 Mich 444, 448-449; 74 NW 656 (1898).

In view of the clearly mandatory language contained in the court rules, we hold that the circuit court did not err in requiring a bond amounting to one and one-quarter the amount of the district court judgment.

Appellant argues that the mandatory bond in this case violates the equal protection provisions of the Federal and state constitutions. We reject that contention.^[1] The right to equal protection of the law is not denied by a state law or course of procedure where the same law or course of procedure would have been applied to any other person in the same state under similar circumstances and conditions. Moore v Spangler, supra, at 370, citing Tinsley v Anderson, 171 US 101; 18 S Ct 805; 43 L Ed 91 (1898). In the instant case, appellant is not required to do anything not required of all other similarly situated appellants in the circuit court. Therefore, we reject his equal protection argument.

The decision of the circuit court is affirmed.

N.J. KAUFMAN, P.J. (dissenting).

I must respectfully dissent.

In construing a statute (or court rule), words are to be given their ordinary meanings unless a different interpretation is indicated. Goethal v Kent County Supervisors, 361 Mich 104, 111; 104 NW2d 794 (1960), Hunn v Madison Heights, 60 Mich App 326, 332; 230 NW2d 414 (1975). Specifically, the word "shall" means that the statute or court rule is mandatory — unless other considerations compel a contrary conclusion. Lundberg v Corrections Commission, 57 Mich App 327, 329; 225 NW2d 752 (1975). In the case at bar, a contrary conclusion is indicated.

The Committee Notes to former GCR 1963, 701 begin as follows:

"The rules contain a new provision requiring an appeal bond to be filed. Appeal bonds are presently required by virtue of statutory direction. While the filing of an appeal bond is directory only, such filing is a requisite to the stay of further proceedings in the lower court." 3 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 505. (Emphasis added.)

Similarly, the Authors' Comments to Rule 701, 3 Honigman & Hawkins, supra, p 512, state:

"This requirement of an appeal bond applies to all appeals, whether by claim of appeal, order allowing appeal, or cross appeal. Sub-rule 701.7. It is said to be a ``directory' requirement, however. See Committee Comment, supra. An improper or insufficient bond is not a jurisdictional defect. The circuit court has jurisdiction of an appeal which has been timely filed with the lower court and for which the fee has been paid. Sub-rule 701.3." (Emphasis added.)

The above commentaries are based on sound authority. In considering a parallel statutory provision which also directed the filing of a stay bond on appeal, the Supreme Court stated:

"In support of his motion to dismiss appeal from the order dismissing writ of garnishment, defendant points to the requirement of CL 1948, § 650.21 (Stat Ann § 27.2611) for filing of a bond in order to stay proceedings on appeal and says that, because plaintiff has filed no such bond, defendant has properly proceeded to judgment against the garnishee defendant and that, in consequence, plaintiff's appeal in regard to the garnishment has become moot. The bond is a prerequisite to stay of proceedings but not to consideration by this Court on appeal of the correctness of the trial court's order dismissing garnishment." Beyerlein v Ashburn, 334 Mich 13, 15-16; 53 NW2d 666 (1952). (Emphasis added.)

To the same effect see Michigan Bean Co v Burrell Engineering & Construction Co, 306 Mich 420, 426; 11 NW2d 12 (1943) ("Burrell's failure to file a supersedeas bond on appeal did not preclude it from appealing, but it did subject itself to the risk of having a writ of execution issued during the time the appeal was pending."), and Hendricks v McCausey, 299 Mich 157, 160-161; 299 NW 847 (1941).

Based upon these authorities, I would hold that under Michigan law appellant has the right to accept the risk of execution without any further risk that the appeal will be dismissed if no stay bond is filed. I would remand to the circuit court for consideration of the merits of the appeal.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] We note that appellant does not allege that he is financially unable to pay the bond and that the bond requirement, therefore, prevents the exercise of his right to appeal.