54 Mich. 258 | Mich. | 1884
Plaintiffs brought a suit before a justice of the peace against one John Sullivan, and at the same time garnished the defendant in this suit. The garnishee summons was served by reading and delivering a true copy thereof to James I. David, the agent of defendant corporation, and one of its principal officers, and the only one then in Marquette county. No one appearing before the justice to make disclosure in behalf of defendant corporation, he entered a judgment against it for $112.88, and $4.50 costs. This was in January, 1882. No appeal having been taken, the plaintiff waited until July, 1882, and then issued execution. Defendant then petitioned the circuit court for the county of Marquette for leave to appeal, for the reason that it had been prevented from taking the appeal from the judgment within the time allowed by law by circumstances not under its con
Upon the petition and affidavits the circuit court of Marquette county issued an order requiring the plaintiffs in this suit to show cause why the court should not authorize an appeal from the judgment in the garnishee proceedings. The order was served upon the plaintiffs, and no cause to the contrary being shown,, the court granted the application and allowed an appeal to be taken, which was done. After the appeal papers were filed in the circuit court, the defendants filed a plea of the general issue, and duly noticed the cause for trial. When the case was called for trial the plaintiffs appeared by attorney specially, and moved the court to dismiss the appeal taken in the cause and to hold the proceedings taken in that court for naught for want of jurisdiction in the court to entertain the same, owing to the insufficient showing for the appeal therein. This motion was denied, and the plaintiffs then declined to further prosecute their suit, and judgment of nonsuit was entered against them. Whereupon the plaintiffs have sued out a writ of error, and assign here the same cause of error taken in the trial court upon their motion to dismiss the appeal.
The statute provides that “appeals may be authorized by the circuit court or by the judge in chambers after the expiration of five days, when the party making the appeal has been prevented from taking the same by circumstances not under his control.” How. Stat. § 7005.
The affidavits upon which the circuit court authorized the appeal made a case contemplated by the statute. They showed that the general offices of defendant were in Detroit; that David was the only agent or officer having charge of their business in Marquette county; and that the sickness of his wife was of such serious nature as to require his constant attention during the whole time allowed by law for taking an appeal in the ordinary way. Sickness of the party, or serious illness of a member of the family of the party^ required by the law or practice to do certain acts within a specified time, is a sufficient excuse for non-performance of
We think the showing was sufficient to give the court jurisdiction,
And the judgment must be affirmed.