Danville Stove & Mnfg. Co. v. Circuit Judge

1 McGrath 183

• Court: Michigan Supreme Court
• Decided: June 18, 1891
• Docket: No. 12052
• Status: Published

Opinion

To compel respondent to vacate an order allowing an appeal from Justice Court.

Granted June 18, 1891, with costs.

Relator, a resident of the State of Pennsylvania, recovered judgment October 29, 1890, against Annie Telelaar. In May, 1891, defendant moved the Circuit Court for leave to appeal. Notice of the motion was served upon relator in Pennsylvania, and endorsed thereupon was the following:- “I,............ hereby accept service of a copy of the within affidavit, order to show cause and notice of hearing for and in behalf of said company.

Relator insisted that the application or affidavit was not filed until the day of hearing, although it was presented to the circuit judge when the order to show cause was issued, citing Bank vs. Judge, 43 M., 296 (857); that the application for leave to appeal was. in the nature of an original proceeding, and that the notice or order to show cause must he treated, as to service, like process, citing McCaslin vs. Camp, 26 M., 390; that the acceptance of .service simply dispensed with proof of service, hut did not confer jurisdiction. Citing, U. S. vs. Loughey, 43 Fed. Rep., 449; Washington vs. Barnes, 41 Ga., 314; Penron vs. McKenzie, 18 N. E. (Ind.), 389.