Brown v. Smilay

Nelson Sharpe, C. J.

Plaintiff brought proceedings before a circuit court commissioner to recover possession of a dwelling house occupied by defendant as his tenant. He had judgment therefor, from which the defendant sought an appeal to the circuit court. On motion of the plaintiff, an order was entered dismissing the appeal, of which the defendant here seeks review.

The motion to dismiss was based upon imperfections in the notice of appeal, the want of proper service thereof upon the plaintiff, and the failure to file the bond required by the statute.

The record here presented is so incomplete that we are unable to pass upon the questions presented. The return of the circuit court commissioner states that the defendant filed “a full notice of appeal hereto annexed and marked exhibit ‘C;’ and did also produce and file with me a recognizance in bond in appeal, which is hereto annexed marked exhibit ‘D,’ ” and that he also filed with him an “affidavit of service hereto annexed and marked exhibit ‘E.’ ”

None of these exhibits appear in the record, and we cannot here say that consideration of them by the circuit judge did not warrant the order of dismissal made by him.

The appeal is dismissed, with costs to appellee against the defendant and the sureties on his bond on appeal.

Potter, North, Fead, Wiest, Butzel, Bushnell, and Edward M. Sharpe, J J., concurred.