Heath v. Gloster

239 N.W. 337, 256 Mich. 291, 1931 Mich. LEXIS 1074

• Court: Michigan Supreme Court
• Decided: December 8, 1931
• Docket: Docket No. 119, Calendar No. 35,858.
• Status: Published

Opinion

McDonald, J.

The defendant purchased certain property on land contract from Joseph P. Manning. Subsequently Manning assigned his interest therein to Charles C. Heath, the plaintiff in this suit. Defendant defaulted in her payments. The plaintiff declared a forfeiture and began summary proceedings before the circuit court commissioner. He had judgment. Defendant appealed. The plaintiff entered his general appearance, after which he filed a motion to dismiss the appeal because of a variance between the notice of appeal filed with the circuit court commissioner and that filed with proof of service. From the order of dismissal the defendant has appealed.

The court erred in dismissing the appeal. Having entered a general appearance, the plaintiff waived any irregularity in the notice. Gotfredson Land Co. v. Shevitz, 251 Mich. 75.

Though the defendant is entitled to a reversal of the judgment, it will be with costs to the plaintiff. There was no excuse for the appeal to this court. After judgment in the circuit court, the plaintiff conceded error and offered a written stipulation to set aside the order of dismissal and to reinstate the appeal. The defendant refused. The appeal was vexatious and seems to'have been pursued for delay. The defendant will be required to pay the taxable costs in this court with an additional fee of $100.

The judgment is reversed, with costs to the plaintiff.

Butzel, C. J., and Wiest, Clark, Potter, Sharpe, North, and Fead, JJ., concurred.