Docket No. 90 | Mich. | Jun 5, 1922
(after stating the facts). In section 8 of the chapter of the judicature act dealing with appeals from justices’ courts (8 Comp. Laws 1915, § 14408), it is provided:
“Appeals may be authorized by the circuit court, or by the circuit 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.” * * *
This re-enacts former provisions which have many times received the consideration of this court. The sole question in the instant case is whether this defendant has brought itself within the provisions of this statute. The affidavit of its secretary upon which the delayed appeal was granted details the first garnishee proceedings and the filing of the sworn disclosure therein, the service of the garnishee summons in the second proceedings on the 14th of October, 1921, sets up a copy of the letter to the justice stating that the company did not owe the principal defendant anything, which letter the affiant calls a disclosure but states that it was not sworn to, and then states:
*670 “This deponent further says that after the disclosure of October 14th was filed this deponent immediately dismissed the matter from his mind, supposing that it was entirely taken care of and that there was nothing further to be done.”
The affidavit then recites that deponent’s attention was not called to the matter again until the execution was presented to him by the deputy sheriff, that he then saw the justice and plaintiff’s attorney but was unable to get relief from them, and that the company did not owe the principal defendant anything at the time the garnishee summons was served on him. To recapitulate: The showing was that upon the service of the garnishee summons the secretary wrote a letter to the justice denying liability to the principal defendant, and then dismissed the matter from his mind and did nothing further until after the judgment was entered and the time for appeal had expired.
In the early case of Draper v. Tooker, 16 Mich. 74" court="Mich." date_filed="1867-10-10" href="https://app.midpage.ai/document/draper-v-tooker-6633924?utm_source=webapp" opinion_id="6633924">16 Mich. 74, where this statute was under consideration, it was said by Mr. Justice Christiancy, speaking for the court:
“It is quite clear that the statute did not intend to give a general discretion to the circuit court to allow appeals in any case after the five days, where, in their judgment, it would be equitable, or when the party had made a mistake, or drawn an erroneous inference; but that by the restrictive language used, the intention was to confine that discretion to the class of cases in which the appellant had been prevented from appealing within the five days by circumstances beyond his control. The discretion is, therefore, confined to cases falling within this class.”
This court has quite consistently followed the rule here announced. Stanton v. Wayne Circuit Judge, 126 Mich. 715" court="Mich." date_filed="1901-05-21" href="https://app.midpage.ai/document/stanton-v-wayne-circuit-judge-7941108?utm_source=webapp" opinion_id="7941108">126 Mich. 715; Stock v. Wayne Circuit Judge, 143 Mich. 339" court="Mich." date_filed="1906-03-13" href="https://app.midpage.ai/document/stock-v-wayne-circuit-judge-7943524?utm_source=webapp" opinion_id="7943524">143 Mich. 339; Graham v. Wayne Circuit Judge, 143 Mich. 360" court="Mich." date_filed="1906-03-13" href="https://app.midpage.ai/document/graham-v-wayne-circuit-judge-7943530?utm_source=webapp" opinion_id="7943530">143 Mich. 360; Goldhamer v. Wayne Circuit Judge, 107 Mich.
“The section referred to provides that appeals may be allowed by the circuit court or a judge thereof 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. The only ground for saying that the defendant in this case was prevented from taking his appeal is that the absence of the justice was an obstacle to his perfecting the appeal. But section 7006, How. Stat., provides that the affidavit and bond or recognizance, in case of the absence from his dwelling-house of the justice by whom the judgment was rendered, may be served on any member of his family of suitable age, and the costs and fees may be paid to such member of his family. It does not appear that the defendant could not have complied with this provision, and therefore it cannot be said that he was prevented by circumstances not under his control from taking the appeal. * * *
“This court has repeatedly held that the granting of permission for a dilatory appeal is not a matter of discretion, but that, to justify such an order, the party must bring himself within the terms of the statute. This we think the appellant failed to do in the present case.”
Vincent v. Bowes, 78 Mich. 315" court="Mich." date_filed="1889-12-28" href="https://app.midpage.ai/document/vincent-v-bowes-7934446?utm_source=webapp" opinion_id="7934446">78 Mich. 315, is cited to us as holding that the granting of such leave is discretionary. That case does so hold. It is the only case so holding which we have been able to find in the time at our disposal. In so holding it is out of line with the other decisions of this court. But the language there used was not necessary to decision and must be regarded as obiter dictum and not controlling.
This statute has been recognized as affording relief to those parties who have been prevented from taking
The circuit court did not acquire jurisdiction by these proceedings and its judgment must be reversed and that of the justice affirmed.