119 Mich. 522 | Mich. | 1899
Mandamus is asked to compel the court below to set aside an order allowing an appeal from justice’s court after the lapse of five days. The action was replevin, brought by the relator here against Richard Johnson and Ira R. Dodge. On the trial in justice’s court the plaintiff had judgment. The defendants neglected to perfect an appeal within the five days allowed by statute, and thereafter defendant Johnson made application for the allowance of an appeal, setting up substantially that he was misled by his co-defendant, Dodge; that at this time he was working for said Dodge upon his farm; that Dodge represented that he would appeal said cause; that the affidavit and bond were filed with the justice; that, upon the last day the appeal could be perfected, he represented to Johnson that he was going to the office of the justice to pay the costs, as he was at that time indebted to Johnson; that Dodge did go to Imlay City, where the justice resided, and remained until very late in the evening, and when he returned he informed Johnson that he did not appeal the case; that Johnson immediately went to Imlay City, and called at the justice’s office and at his residence, but was unable to find said justice, or to arouse any one at his house. Johnson’s affidavit further states that he “is informed and believes to be true that said Ira R. Dodge made these representations in order to prevent this deponent from appealing this case.” There was no counter showing, and, upon the showing made, the court below determined that Johnson was prevented from taking his said appeal by circumstances not under his control.
Section 7005, 2 How. Stat., provides:
“Appeals may be authorized by the circuit court or by the judge at 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.”
Sickness of the appellant or some member of his family has been held to be such a circumstance. Braastad v.
The court was not in error, and the writ must be denied, with costs.