143 Mich. 360 | Mich. | 1906
The relator was sued in justice’s court in the city of Detroit. He appeared on the adjourned day,
The present application was made in this court by petition, setting up the foregoing facts, and asking that the circuit judge be required to show cause why a peremptory
The mandamus sought in the circuit court was denied, upon a hearing, and to review the order of that court, certiorari should have been asked under Sup. Ct. Rule 13. Instead of taking this course, counsel then applied to the circuit court for leave to take a special appeal. Mandamus is a proper writ by' which to review the latter order, but we have not encouraged the practice of asking a. mandamus to compel a circuit judge to vacate the order made in a mandamus case. Under the general law, the party who would appeal from a justice’s judgment must seek the justice, and file the necessary papers, etc., with him, if found, and with some member of the family, if he cannot be found. The statute regulating (to some extent) the practice in Detroit, is Act No. 475 of the Local Acts, of 1903. That act provides for four justices and one clerk, who is to act as clerk for all four justices. He is to have one or more deputies, who shall be under the control and direction of said clerk, and shall perform such duties as he shall direct. There is nothing in that act authorizing an appeal by filing appeal papers in any other way than that prescribed by the general act, except in the matter of the payment of costs, fees, etc. Section 33 provides:
“Before any affidavit for appeal * * * shall be served on any one of said justices, in addition to the fees*363 allowed by law for making returns to an appeal * * * the entry fee * * * shall be paid to the said clerk.”
To effect an appeal, it was therefore necessary for relator to make payment to the clerk, and then present the affidavit and bond to the justice who tried the case, or, if he could not be found, leave it at his residence in compliance with the general law. 1 Comp. Laws, §§ 903, 904 et seq.
At the time that relator tendered the papers and the costs, etc., at the office of the clerk, it was past the closing hour, and the only deputy there was one who was not authorized to act. Relator had still several hours within which to find and pay the money to the clerk, and present his affidavit and bond to the justice. Apparently he made no effort to do so, and therefore he was not entitled to leave to take a special appeal under the general law. 1 Comp. Laws, § 909.
The writ is denied, with costs.