Grylls v. Hergiton

The question involved in this case is whether an appellant is required to obtain leave of the Supreme Court to appeal from a circuit court judgment in a summary proceeding for the restitution of premises sold on land contract.

In such a proceeding, the statute, 3 Comp. Laws 1929, § 14979, provides that if the court finds the defendant is unlawfully withholding possession of the premises he shall ascertain the amount due to the plaintiff on the contract and enter it in the judgment. In this case judgment was entered in favor of the plaintiff, and the court found there was $375 due to her on the contract. The defendant filed a preliminary notice of appeal. On motion of the plaintiff, the circuit judge dismissed the appeal on the theory that the judgment was less than $500, and leave to appeal had not been granted by the Supreme Court in accordance with the statute, 3 Comp. Laws 1929, § 15491. From the order entered, the defendant has appealed.

The judgment appealed from is not a judgment for $375. It is merely a judgment for restitution of premises unlawfully withheld. The amount found due on the contract is no part of the judgment and cannot be enforced against the defendant.Lemm v. Spencer, 242 Mich. 366; Bauer v. Wasson, 66 Mich. 256.

The defendant had a right to appeal without leave of the Supreme Court. In entering the order of dismissal, the circuit court erred. No question is raised as to his jurisdiction over the appeal.

The judgment is reversed, with costs to the defendant.

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