Bliss v. Tyler, 156 Mich. 640

Bliss v. Tyler

156 Mich. 640 | Mich. | 1909

Moore, J.

The bill of complaint in this case was filed in aid of execution. The bill was taken as confessed by defendant Fred B. Tyler. The defendant Carrie B. Tyler appeared and demurred to the bill. The demurrer was argued on the 20th day of June, 1908, and an order overruling it was filed and entered September 23, 1908, and defendant Carrie B. Tyler was given 30 days from the service of the order on her solicitor in which to answer the bill of complaint.

The solicitor for the defendant was served with a copy of this order on the 8th of October, 1908. No answer was filed, but on the 23d day of November the defendant filed *641a claim for an appeal to this court. It is claimed by complainant’s counsel that the time for appealing from this order commenced to run on the 23d day of September, when the order was actually filed and entered. Defendant claims she had 40 days after the time in which to answer expired, and cites Creasey v. St. George’s Society, 34 Mich. 51; Cross v. Cross, 54 Mich. 115; and Clark v. Village of North Muskegon, 86 Mich. 29. All of these cases were decided before the passage of Act No. 340, Pub. Acts 1907, which contains the present practice on appeal in chancery cases. Section 2 of this act was construed in Moody v. Macomber, ante, 76. In that case it was held that the term “ decree ” in the statute was broad enough to cover an order overruling a demurrer. Section 2 of the act provides that the appeal should be taken within 40 days after filing of the decree. When the demurrer was overruled, two courses were open to defendant. She might have answered within the time given her by the court, or she might appeal within the time given by the statute. She did not answer and she did not appeal within the time fixed by the statute. The language of the statute is not ambiguous. Counsel close their brief as follows:

“We submit that the motion to dismiss the appeal herein should be denied with costs; but, in case the court should hold that the appeal was not taken in time, counsel for defendant and appellant request the court to permit defendant’s counsel to move for an extension of time for appeal, or make an order granting such extension upon the hearing of this motion.”

As already stated, the case is not properly here, nor is any proper showing made for granting an extension of time. The court below could doubtless deal with that question if it was presented to it.

The appeal is dismissed, with costs.

Blair, C. J., and Grant, MoAlvay, and Brooke, JJ., concurred.