Burke v. Henry

On the trial in the circuit court of an appeal from a commissioner's judgment in summary proceedings, the plaintiffs neglected to make proof of service of notice of forfeiture. The defendants made no objection to the entry of judgment without such proof. At the close of the plaintiffs' case, the court addressing defendants' counsel inquired if he had anything to offer. Counsel replied that he had not, and that the amount claimed by the plaintiffs to be due was correct. Thereupon the court entered judgment in favor of the plaintiffs. The defendants have appealed.

Proof of a valid forfeiture was essential to plaintiffs' case. Failure to show it was an oversight. Defendants do not claim there was no forfeiture. If there had been none, their counsel undoubtedly would have urged it as a defense either in the pleadings or on the trial, or in a subsequent motion to set aside the judgment. Instead, probably for delay, they took an appeal, and have raised the question for the first time in this court. We have repeatedly held that we will not consider alleged error concerning matters to which the attention of the trial judge has not been called.

However, if defendants claim that notice of forfeiture was not served, on application for a rehearing the court will permit the necessary proof to be taken and filed as a part of this record under Michigan Court Rule No. 79. SeePicard v. Shapero, 255 Mich. 699.

The judgment is affirmed, with costs to the plaintiffs.

CLARK, C.J., and POTTER, SHARPE, NORTH, FEAD, WIEST, and BUTZEL, JJ., concurred.