McCombs v. Johnson

11 N.W. 400, 47 Mich. 592, 1882 Mich. LEXIS 708

• Court: Michigan Supreme Court
• Decided: January 25, 1882
• Status: Published

Opinion

Cooley, J.

An appeal from the judgment of a justice of the peace was dismissed in this case on the ground that it had not been taken in due season, and also because no' return had ever been made to it.

The appeal appears to have been duly claimed on the fourth day after judgment was rendered, and a bond was tendered on that day. The justice makes affidavit that he ■ required another surety to the bond before, he would approve it, and that the appellant took it away to procure a surety, and did not return it until the sixth day after judgment;. which would have been too late. The bond was then approved, and the approval is dated as of the time when it. was first presented.

The justice also says he never made any return to the appeal, and that his fees for making one were not paid. A transcript of the proceedings before him is on file, together with, the appeal bond, but he explains this by saying that he gave a transcript to the appellant for his own use, and not for filing. This is denied by the appellant, and there is much reason for believing the justice is mistaken. It is shown in the case that subsequent to the filing of the transcript and bond the justice himself put on file in the circuit court the paper on which suit was brought; and he would have been very unlikely to do this if he had not understood an appeal had been taken.

But what is more conclusive in the case is, that the appellees entered their appearance generally in the circuit court before the motion to dismiss was made. That was conclusive of the jurisdiction of the circuit court. Shaw v. Moser 3 Mich. 71; Tower v. Lamb 6 Mich. 36.

As the case was finally disposed of in the court below, a writ of error will bring up the record.

The judgment of dismissal must be reversed with costs.

The other Justices concurred.