Wiley v. Foster

1 Mich. N.P. 257

• Court: Circuit Court of the 48th Circuit of Michigan
• Decided: October 15, 1870
• Status: Published

Opinion

B;j the Court,

Upson, J.

It is admitted that the defendant and appellant in this cause did within five days after the rendition of the judgment before the justice, make and file with him the proper affidavit and bond with surities as required by law' and did also at the same time pay to him the plaintiff’s costs as taxed in the judgment.

We think this so far perfected the appeal as to transfer the cause to the Circuit Court and out of the jurisdidtion of the justice. True the statute, § 3840, Comp. Latos, requires the party appealing, to pay to the justice, within five days, the sum of one dollar for making and filing his return, as well as the costs of the opposite party, included in the judgment. By § 3856 C. L., it is further provided that no appeal shall be dismissed on the ground that the costs of the justice have not been paid, but that' in all cases the fact of a return having been made by a justice shall be conclusive evidence of such fees having been paid.

The jurisdiction which this Court obtains by the appeal depends on the statute and not on the will oí justice; his making a return could not confer it without the payment of his fee, if the jurisdiction did not first obtain without it. The return to the appeal is made after the appeal is perfected and that return cannot, in the first instance, be compelled without the prepayment of the fee to the justice for making his return, if he requires it, and if the appellant neglects' to pay the fee and procure the return, the opposite party may move to dismiss the appeal.

See also on this point § § 3859 and 3S60 C. L., and 5 Howard's Prac. Reports, p. 422.

The sí tute does not treat the payment of the justice’s fee for return as a jurisdictional fact, but as a matter personal to the justice, which he may waive if he sees fit, without affecting the validity of the appeal, and his return is good though the fee has not been paid. In this respect the law.in relation to taking appeals is different from that in relation'to obtaining a certiorari to remove a justice’s judgment to the Circuit Court.

In such case the statute, alter specifying what the party is to do who applies for the certiorari in regard to making affidait, getting writ allowed, executing bond with sureties, procuring and serving writ, bond, and copy of affidavit on justice within five days after writ is issued, and paying two doll rs to the justice for his fees for making a return to the certiorari, adds the following, viz : “ and no certiorari shall be of any effect until all the preceeding requisitions shall have been complied with."—

Under a statute somewhat similar to ours in relatin to ap peals — Fis. Rev. Statutes, 1858, chap. 120, sec’s 205, 212, pages 697., 698, the Supreme Court of Wisconsin held an appeal good though the fee of the justice and the State tax required by the statute had not been paid. See 14 Fis., Rep. p. 86.

In the case before us, it appears that the appeal has been duly made and the justice having once waived the payment of the lee within the five days, and having subsequently refused to receive the same, the motion for a rule to compel him to make return to said appeal must he granted.