Danville Stove & Manufacturing Co. v. Adsit

50 N.W. 140, 88 Mich. 244

Opinion

Per Curiam.

In this matter a judgment was rendered in justice’s court, October -29, 1890, in favor of relator and against one Annie Tazelaar. May 11, 1891, under the statute as it then existed, the circuit judge, respondent here, granted the defendant an appeal. Upon application to this Court, a mandamus was issued to set aside the order granting such appeal, upon the ground that no proper service of notice of the application for appeal had -ever been served on relator.¹ The service was made upon the company outside of the State of Michigan.

Act No. 73, Laws of 1891, went into effect October 2, 1891. October 6, 1891, an order to show cause was made by respondent, upon application, why the appeal of said Annie Tazelaar should not be granted. This order was served upon the attorney of relator in justice’s court. October 13, 1891, the appeal was granted.

The statute relating to appeals, as amended by Act No. 73, Laws of 1891, provides that, where the party obtaining judgment appears by attorney or agent, it will be sufficient to serve notice of subsequent proceedings in the cause upon such attorney or agent. We think this statute is not retroactive, and the writ must be granted commanding respondent to set aside his order granting the appeal.

1

The service was made at the home office of the plaintiff, in Pennsylvania, upon its president, who accepted the same in writing.