228 N.W. 701 | Mich. | 1929
Anton H. Scheel, as plaintiff, recovered a judgment for $241.10 damages, together with costs, against Robert T. Benefield and Anna Benefield, defendants, before a justice of the peace at Muskegon Heights, Michigan, on the 2d day of July, 1928. Four days later the defendants filed an affidavit and appeal bond and paid the necessary costs to appeal said cause to the circuit court. On August 6, 1928, the return of the justice of the peace was filed in the circuit court. Three days later the attorney for and on behalf of the defendants filed a notice of retainer directed to the plaintiff and appellee. No proof of service of said notice on the plaintiff was filed in said cause.
On June 24, 1929, Anton H. Scheel moved for the dismissal of said appeal for the reason that provisions of Circuit Court Rule No. 11 had not been complied with. The attorney for the defendants claimed that he had personally served the notice of retainer by handing it to Mrs. Scheel, the wife of plaintiff, within the prescribed time. There is no claim that it was served upon plaintiff himself. Mrs. Scheel denied that she was served with such notice. *399 Testimony was taken by the Hon. John Vanderwerp, circuit judge, respondent in the mandamus proceedings brought in this court to compel him to dismiss the appeal for lack of service in accordance with Circuit Court Rule No. 11. He held that the notice had been served on Mrs. Scheel, and this was sufficient.
Circuit Court Rule No. 11, providing for service on the opposite party within five days, is mandatory. Shrager v. Rich,
It is herewith ordered that a writ of mandamus issue unless within ten days from the time of filing this opinion the appeal is dismissed.
WIEST, C.J., and CLARK, POTTER, SHARPE, NORTH, and FEAD, JJ., concurred. McDONALD, J., took no part in this decision. *400