Scheel v. Muskegon Circuit Judge

Michigan Supreme Court

Scheel v. Muskegon Circuit Judge

228 N.W. 701, 249 Mich. 397, 1930 Mich. LEXIS 715

CourtMichigan Supreme Court

DecidedDecember 10, 1929

DocketCalendar 34,630

StatusPublished

Cited by1 cases

This text of 228 N.W. 701 (Scheel v. Muskegon 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

Scheel v. Muskegon Circuit Judge, 228 N.W. 701, 249 Mich. 397, 1930 Mich. LEXIS 715 (Mich. 1929).

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Opinion

Btjtzel, J.

Anton H. Scheel, as plaintiff, recovered a judgment for $241.10 damages, together with costs, against Robert T. Benefield and Anna Benefield, defendants, before a justice of the peace at Muskegon Heights, Michigan, on the 2d day of July, 1928. Four days later the defendants filed an affidavit and appeal bond and paid the necessary costs to appeal said cause to the circuit court. On August 6,1928, the return of the justice of the peace was filed in the circuit court. Three days later the attorney for and on behalf of the defendants filed a notice of retainer directed to the plaintiff and appellee. No proof of service of said notice on the plaintiff was filed in said cause.

On June 24, 1929, Anton H. Scheel moved for the dismissal of said appeal for the reason that provisions of Circuit Court Rule No. 11 had not been complied with. The attorney for the defendants claimed that he had personally served the notice of retainer by handing it to Mrs. Scheel, the wife of plaintiff, within the prescribed time. There is no claim that it was served upon plaintiff himself. Mrs. Scheel denied that she was served with such notice. *399 Testimony was taken by the Hon. John Vanderwerp, circuit judge, respondent in the mandamus proceedings brought in this court to compel him to dismiss the appeal for lack of service in accordance with Circuit Court Eule No. 11. He held that the notice had been served on Mrs. Scheel, and this was sufficient.

Circuit Court Eule No. 11, providing for service on the opposite party within five days, is mandatory. Sh rager v. Rich, 242 Mich. 419. While it was held in Brockway v. Kent Circuit Judge, 246 Mich. 490, that a substantial compliance so far as the form of notice is concerned would be sufficient, this does not dispense with service of such notice. Circuit Court Eule No. 11 provides for service personally or by mail. There is neither any proof or claim that Mrs. Scheel was duly authorized by her husband to accept service of notice. Assuming that Mrs. Scheel was served with the notice, it would not be a sufficient service on Mr. Scheel under the rule.

It is herewith ordered that a writ of mandamus issue unless within ten days from the time of filing this opinion the appeal is dismissed.

Wiest, C. J., and Clark, Potter, Sharpe, North, and Fead, JJ., concurred. McDonald, J., took no part in this decision.

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Btjtzel, J.

Anton H. Scheel, as plaintiff, recovered a judgment for $241.10 damages, together with costs, against Robert T. Benefield and Anna Benefield, defendants, before a justice of the peace at Muskegon Heights, Michigan, on the 2d day of July, 1928. Four days later the defendants filed an affidavit and appeal bond and paid the necessary costs to appeal said cause to the circuit court. On August 6,1928, the return of the justice of the peace was filed in the circuit court. Three days later the attorney for and on behalf of the defendants filed a notice of retainer directed to the plaintiff and appellee. No proof of service of said notice on the plaintiff was filed in said cause.

On June 24, 1929, Anton H. Scheel moved for the dismissal of said appeal for the reason that provisions of Circuit Court Rule No. 11 had not been complied with. The attorney for the defendants claimed that he had personally served the notice of retainer by handing it to Mrs. Scheel, the wife of plaintiff, within the prescribed time. There is no claim that it was served upon plaintiff himself. Mrs. Scheel denied that she was served with such notice. *399 Testimony was taken by the Hon. John Vanderwerp, circuit judge, respondent in the mandamus proceedings brought in this court to compel him to dismiss the appeal for lack of service in accordance with Circuit Court Eule No. 11. He held that the notice had been served on Mrs. Scheel, and this was sufficient.

Circuit Court Eule No. 11, providing for service on the opposite party within five days, is mandatory. Sh rager v. Rich, 242 Mich. 419. While it was held in Brockway v. Kent Circuit Judge, 246 Mich. 490, that a substantial compliance so far as the form of notice is concerned would be sufficient, this does not dispense with service of such notice. Circuit Court Eule No. 11 provides for service personally or by mail. There is neither any proof or claim that Mrs. Scheel was duly authorized by her husband to accept service of notice. Assuming that Mrs. Scheel was served with the notice, it would not be a sufficient service on Mr. Scheel under the rule.

It is herewith ordered that a writ of mandamus issue unless within ten days from the time of filing this opinion the appeal is dismissed.

Wiest, C. J., and Clark, Potter, Sharpe, North, and Fead, JJ., concurred. McDonald, J., took no part in this decision.

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228 N.W. 701, 249 Mich. 397, 1930 Mich. LEXIS 715, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scheel-v-muskegon-circuit-judge-mich-1929.

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