Gotfredson Land Co. v. Shevitz

230 N.W. 900 | Mich. | 1930

On motion, the trial judge dismissed defendant's appeal from judgment of a circuit court commissioner for two reasons, first —

* * * "there is no proof of a return of service that a notice of appeal was filed within the five days prescribed by rule" * * *

being Circuit Court Rule No. 11 (237 Mich. xxxiii) as amended April 14, 1927, providing in cases of appeal, such as this of service of notice of appeal within five days after return on appeal has been filed in the office of the county clerk, and, second —

* * * "for the further reason that it appears on examination of the file from the circuit court commissioner that the affidavit on appeal is defective because it is notarized by one Nathan W. Kaplan who appears from numerous stipulations attached in the same return to have declared himself to be the attorney for the said Jacob Shevitz, the defendant."

Defendant brings error.

1. The court acquired jurisdiction of the subject-matter upon filing of the return on appeal. Jurisdiction of the person would have been effected by service of the notice and proof thereof under the court rule. As plaintiff entered its general appearance in the cause in the circuit court, jurisdiction of the person was thereby acquired, and hence service of notice of appeal and proof thereof under the court rule were waived and rendered unnecessary. Shrager v. Rich, 242 Mich. 419; Daines v.Tarabusi, 246 Mich. 419; Goodin v. Van Haaften, 130 Mich. 386.

2. Appellee does not defend this holding. Appellant sought to correct the claimed defect. He should have been permitted to do so. 3 Comp. Laws 1915, § 12486; Bradley v. Andrews, 51 Mich. 100.

Reversed. Costs to defendant.

WIEST, C.J., and BUTZEL, McDONALD, POTTER, SHARPE, NORTH, and FEAD, JJ., concurred.