Royal Oak Trucking Co. v. Keller

Michigan Court of Appeals

Royal Oak Trucking Co. v. Keller

170 N.W.2d 160, 17 Mich. App. 532, 1969 Mich. App. LEXIS 1243

Michigan Court of Appeals·Decided May 29, 1969·No. Docket No. 4,360·Published·Cited by 1 cases

Opinions

R. B. Burns, J.

Plaintiff recovered a money judgment in municipal court from which, defendant appealed to the circuit court. Defendant now appeals the circuit court order dismissing his appeal for failure to timely file it. The claim of appeal filed with the circuit court states that the defendant appeals from a judgment entered by the municipal judge on June 7,1967 and notice of entry served on June 15, 1967.

The defendant contends that under provisions of RJA § 7115 (CDS 1961, § 600.7115 [Stat Ann 1962 Rev § 27A.7115]) the period allowed for appealing from the judgment did not commence to run until proof of service was filed on June 15, 1967, while plaintiff contends that under the provisions of GCR 1963, 701.4(2) the 10-day period during which an appeal may be taken as of right commences to run upon entry of the order appealed from without regard to when the notice of rendition of the judgment is mailed or proof of service is filed.

In our opinion the provision of RJA § 7115 stating that “the period allowed for appealing from said judgment shall not commence to run until proof of such service is filed in said cause” does not apply where, as set forth in RJA § 7115, a verdict has been rendered and the justice in fact forthwith renders judgment and enters it in his docket. It is not claimed that the municipal judge in this case did not in fact render the verdict in the presence of counsel for the litigants and “forthwith render judgment and enter the same in his docket.” As set forth above, the claim of appeal states that the judgment was entered on June 7, 1967, and it appears that the [535] parties appeared before tbe municipal judge on tbat date. Since in our view tbe provision in RJA § 7115 tolling tbe time for taking appeal until proof of service is filed is not bere applicable, there is no need to attempt to reconcile tbat statutory provision with tbe previously mentioned provision of GrCR 1963, 701.4(2).

Affirmed. Costs to plaintiff.

Dalton, J., concurred with R. B. Burns, J.

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R. B. Burns, J.

Plaintiff recovered a money judgment in municipal court from which, defendant appealed to the circuit court. Defendant now appeals the circuit court order dismissing his appeal for failure to timely file it. The claim of appeal filed with the circuit court states that the defendant appeals from a judgment entered by the municipal judge on June 7,1967 and notice of entry served on June 15, 1967.

The defendant contends that under provisions of RJA § 7115 (CDS 1961, § 600.7115 [Stat Ann 1962 Rev § 27A.7115]) the period allowed for appealing from the judgment did not commence to run until proof of service was filed on June 15, 1967, while plaintiff contends that under the provisions of GCR 1963, 701.4(2) the 10-day period during which an appeal may be taken as of right commences to run upon entry of the order appealed from without regard to when the notice of rendition of the judgment is mailed or proof of service is filed.

In our opinion the provision of RJA § 7115 stating that “the period allowed for appealing from said judgment shall not commence to run until proof of such service is filed in said cause” does not apply where, as set forth in RJA § 7115, a verdict has been rendered and the justice in fact forthwith renders judgment and enters it in his docket. It is not claimed that the municipal judge in this case did not in fact render the verdict in the presence of counsel for the litigants and “forthwith render judgment and enter the same in his docket.” As set forth above, the claim of appeal states that the judgment was entered on June 7, 1967, and it appears that the [535] parties appeared before tbe municipal judge on tbat date. Since in our view tbe provision in RJA § 7115 tolling tbe time for taking appeal until proof of service is filed is not bere applicable, there is no need to attempt to reconcile tbat statutory provision with tbe previously mentioned provision of GrCR 1963, 701.4(2).

Affirmed. Costs to plaintiff.

Dalton, J., concurred with R. B. Burns, J.

Royal Oak Trucking Co. v. Keller, 170 N.W.2d 160, 17 Mich. App. 532, 1969 Mich. App. LEXIS 1243 (Mich. Ct. App. 1969).

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170 N.W.2d 160 (Royal Oak Trucking Co. v. Keller) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinions

R. B. Burns, J.

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