Lepovsky v. Lapeer Circuit Judge

Michigan Supreme Court

Lepovsky v. Lapeer Circuit Judge

238 N.W. 223, 255 Mich. 499, 1931 Mich. LEXIS 665

CourtMichigan Supreme Court

DecidedSeptember 24, 1931

DocketCalendar 35,359

StatusPublished

This text of 238 N.W. 223 (Lepovsky v. Lapeer Circuit Judge) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lepovsky v. Lapeer Circuit Judge, 238 N.W. 223, 255 Mich. 499, 1931 Mich. LEXIS 665 (Mich. 1931).

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Opinion

Wiest, J.

The circuit judge dismissed an appeal from justice’s court for failure of the appellant to give notice of the appeal to the attorney for appellee under former Circuit Court Rule No. 11, as amended in 1927, and found in 237 Mich. p. xxxiii. This is review by mandamus, under old procedure, and we have, therefore, the benefit of a return by the circuit judge.

Morley Gr. Crafts brought suit in replevin against Steve Lepovsky before a justice of the peace, and obtained judgment. Lepovsky appealed. Return on appeal was duly filed. Notice of appeal was mailed to Crafts. The case was placed on the next term calendar and continued for the term at the request of the attorney for Mr. Crafts, the reason given being the inability of the attorney to locate his client. The case was continued over several terms of court by consent of the attorneys for the respective parties. At a term of the court, a year after the appeal, judgment by default was rendered in favor of Lepovsky. This judgment was set aside by the court, and, on motion of the attorney for Mr. Crafts, the appeal was dismissed for the reason above stated.

The case is ruled by Gogebic National Bank v. Gogebic Circuit Judge, 250 Mich. 160. The opinion in that case is readily accessible and we need not repeat what was there said, beyond saying that the *501 appearance of the attorney for Mr. Crafts was general, in recognition of the jurisdiction of the circuit court, and constituted a waiver of notice under the rule.

The circuit judge is directed to vacate the order, dismissing the appeal, and to reinstate the same. Mr. Lepovsky will recover costs of this court against Mr. Crafts.

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

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Wiest, J.

The circuit judge dismissed an appeal from justice’s court for failure of the appellant to give notice of the appeal to the attorney for appellee under former Circuit Court Rule No. 11, as amended in 1927, and found in 237 Mich. p. xxxiii. This is review by mandamus, under old procedure, and we have, therefore, the benefit of a return by the circuit judge.

Morley Gr. Crafts brought suit in replevin against Steve Lepovsky before a justice of the peace, and obtained judgment. Lepovsky appealed. Return on appeal was duly filed. Notice of appeal was mailed to Crafts. The case was placed on the next term calendar and continued for the term at the request of the attorney for Mr. Crafts, the reason given being the inability of the attorney to locate his client. The case was continued over several terms of court by consent of the attorneys for the respective parties. At a term of the court, a year after the appeal, judgment by default was rendered in favor of Lepovsky. This judgment was set aside by the court, and, on motion of the attorney for Mr. Crafts, the appeal was dismissed for the reason above stated.

The case is ruled by Gogebic National Bank v. Gogebic Circuit Judge, 250 Mich. 160. The opinion in that case is readily accessible and we need not repeat what was there said, beyond saying that the *501 appearance of the attorney for Mr. Crafts was general, in recognition of the jurisdiction of the circuit court, and constituted a waiver of notice under the rule.

The circuit judge is directed to vacate the order, dismissing the appeal, and to reinstate the same. Mr. Lepovsky will recover costs of this court against Mr. Crafts.

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

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Bluebook (online)

238 N.W. 223, 255 Mich. 499, 1931 Mich. LEXIS 665, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lepovsky-v-lapeer-circuit-judge-mich-1931.

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