Baldwin v. Escanaba Liquor Dealers' Ass'n

127 N.W. 784, 162 Mich. 703, 1910 Mich. LEXIS 1108

• Court: Michigan Supreme Court
• Decided: September 27, 1910
• Docket: Calendar No. 24,102
• Status: Published

Opinion

Per Curiam.

A motion is made to dismiss the appeal upon two grounds:

(1) The failure of the appellants to file a claim of appeal with the register in chancery of the circuit court for the county of Delta within 40 days after the settlement of the case.

(2) The failure of the appellants to pay to the register of the court the sum of $5 within 40 days after the settlement and filing of the case in the lower court.

The record shows the entry of the decree December 23, 1909, the filing of the bond on appeal January 29, 1910, the filing of the claim of appeal February 10,1910, the filing of the case settled April 19, 1910, and the payment of the -fee June 13, 1910. Section 2 of Act No. 299 of the Public Acts of 1909 provides for filing claim of appeal and payment of $5 to the register within 40 days after the settlement of the case on appeal. The first ground for dismissal was passed upon adversely to the contention of the mover in Patterson v. Hynes, 148 Mich. 581 (112 N. W. 129).

Touching the second ground urged, we find from the affidavit of the register that, while the #5 fee was not in fact paid within the time limited by statute, the register considered it as paid, gave solicitors for defendants personal credit for the same, and made no demand therefor. The money was actually paid on June 18, 1910. These facts constitute a sufficient compliance with the statute.

The motion is denied.