Dunn's Estate v. Wayne Circuit Judge

222 N.W. 194, 245 Mich. 270

• Court: Michigan Supreme Court
• Decided: June 12, 1928
• Docket: Calendar 33,425, 33,426
• Status: Published

Opinions

The appellees entered a general appearance in the circuit court approximately three years before they made their motion to dismiss. In my judgment this waived the defect in the manner of bringing the case to that court. McCombs v. Johnson,47 Mich. 592; Hamilton v. Wayne Circuit Judge, 52 Mich. 409;Sherwood v. Ionia Circuit Judge, 107 Mich. 136; Goodin v.Van Haaften, 130 Mich. 386. In the last-cited case, the judgment in justice's court was rendered August 5th; the affidavit and bond on appeal were not filed until August 23d. Obviously the statutory provision that they shall be filed within five days is mandatory. But there had been a general appearance by the appellee and the case had been noticed for trial. In disposing of the case, Mr. Justice GRANT, speaking for the court, said:

"The general appearance and notice of trial operated as a waiver of the failure to file the bond and affidavit within the time required by the statute, and gave the circuit court jurisdiction of the case."

In 4 C. J. p. 1353, it is said:

"A general appearance on the part of defendant, however made, or any act or acts which may be construed as an appearance, waives any objection based on the want of issuance of process or of service thereof, or any objection based on the want of a return of process. So a general appearance to the original action after the filing of a cross complaint carries with it an appearance to the cross complaint.

"Notices. The same principle obtains in regard to notices required to be given. All those forms of notice which resemble process or summons are dispensed with by a general appearance."

In Sokup v. Davis' Estate, 206 Mich. 144, cited by my Brother, there had been two motions to dismiss the appeal, both of which had been denied by the trial judge; application to this court for certiorari to review such orders had been denied. There was nothing further could be done except to try the case after again raising and saving the question. Under these circumstances, there was no waiver, and in the absence of waiver the question was open at any time. But Mr. Justice STONE expressly points out that: "There is no claim that the defendant waived notice of the service." Here, without in any way questioning the regularity of the appeal, there was a general appearance. Recognizing that the appeal was properly taken and that the case was pending in the circuit court, application was then made on two occasions for postponement of the trial. About three years after the appeal was taken and the appearance entered, the jurisdiction of the circuit court was for the first time questioned and the regularity of the appeal assailed. I think the general appearance under the authorities I have cited waived the right to then raise these questions.

In my judgment, the writ should issue.

FEAD, C.J., and WIEST, CLARK, McDONALD, and POTTER, JJ., concurred with FELLOWS, J.