Citation Numbers: 222 N.W. 194, 245 Mich. 270
Judges: FELLOWS, J.
Filed Date: 6/12/1928
Status: Precedential
Modified Date: 1/12/2023
These two cases present the same question and have been consolidated. The commissioners on claims in the estate of Patrick J. Dunn, deceased, allowed a claim of George A. Dunn in the sum of $1,688, and also a claim of Irene Mason for $212.56. Simon E. Dunn, one of the heirs-at-law, sought to perfect an appeal in the circuit court. This seems to have been accomplished May 1, 1924, with the exception that the appellant failed to include in the record of his appeal a certified copy of the report of the commissioners on claims as required *Page 271
by section 14154, 3 Comp. Laws 1915. Counsel for claimants entered a general appearance in the circuit court May 21, 1924. Substantially three years later (May 16, 1927) the claimants filed a motion to dismiss the appeal because of the failure to include in the record a copy of the commissioners' findings. While the motion was pending a certified copy of these findings was filed in the circuit court. The motion was heard and the appeal dismissed June 11, 1927. It is here on an application for a writ of mandamus to compel the circuit judge to vacate the order of dismissal. Under the holding of Szarama v.Tylman's Estate,
"That thereafter (after the appeal to the circuit court) on two occasions when said appeal was reached for trial, the said attorney for George A. Dunn did appear before the presiding judge of the Wayne county circuit and did request and obtain postponements of the trial of said cause on the ground that his client was absent from the jurisdiction; that at no time in his appearances requesting adjournments, did the said attorney make any objections to or call the attention of the court to any imperfections in the appeal nor to any irregularities in the taking of same."
The allegations in the foregoing paragraph were not expressly denied in the return filed herein, and therefore they must be accepted as true. City of Lansing v. Eaton Circuit Judge,
It has been urged herein that by entering a general appearance the appellees have waived the failure *Page 273
of the appellant to comply with the statutory provisions. There are decisions in this State holding that literal compliance with this statute may be waived. Snyder v. Washtenaw CircuitJudge, supra; Gorton v. Livingston Circuit Judge,
"This (the failure to perfect the record on appeal) was a matter affecting the jurisdiction of the circuit court and could be raised at any time in the subsequent progress of the case." Sokup v. Davis' Estate,
In the Sokup Case this question was raised by motion before going to a hearing on the merits, the same as it is here raised; and Justice STONE, speaking for the court, said:
"It cannot be that this objection was waived by the defendant by taking part in the trial, especially where, as here appears, repeated motions were made to dismiss the appeal, and at the trial objection was made to the introduction of any evidence by the plaintiff. Under the statutes and the authorities, we cannot do otherwise than to hold that the appeal should have been dismissed by the court below."
No prejudice resulted to the appellant from the entry of a general appearance by the appellees and therefore this should not be held to constitute a waiver or work an estoppel. At most, the general appearance gave the appellate court jurisdiction of *Page 274 the person only and not of the subject-matter of the litigation.
The practice under this statute should be distinguished from the statutory practice governing appeals from justice's courts to the circuit courts, because this statute contains the provision not found in the sections governing justice's court appeals that in case the record is not filed in the circuit court as required "within the time herein directed" the appeal ceases to be effective and the former order of the lower court stands as though no appeal had been taken; with a provision for a reinstatement of the appeal within a time limited.
In the Merriman Case, supra, Chief Justice HOOKER clearly and forcefully pointed out the reason for adding this provision to the statute; and in the recent case of Szarama v. Tylman'sEstate, supra, Justice SNOW said:
"The right of the legislature to provide for time limitation of the various steps necessary to be taken to the circuit court in estate matters cannot be questioned. Expedition in the settlement of estates demands it. When it is so fixed definitely, as in the statute under consideration, the courts should not extend it."
While it seems to be somewhat common in the practice, there is no necessity for filing a general appearance in the circuit court by an appellee in this kind of a proceeding. After the notice of the claim of appeal is given, a case goes on the calendar for the next term of the court, without further application by either party. To extend the time for perfecting an appeal on the pretext that entering a general appearance after service of notice on an appellee constitutes a waiver is to inject uncertainty into the practice and to defeat the purpose sought to be accomplished by the statute. *Page 275
There is no claim made in this record, nor can there be, that the party attempting to make this appeal "has been prevented from perfecting the same by circumstances not under his control." Nothing on the part of the appellees is disclosed by this record which should be held to be a waiver of the appellant's neglect or failure to comply with the mandatory provision of the statute. The appeal was properly dismissed, and the application for the writ should be denied, with costs to the appellees.
SHARPE, J., concurred with NORTH, J.