Shane v. Himelstein, Docket No. 73.

Docket No. 73. | Mich. | Jun 2, 1924

Plaintiffs leased the second floor of 137 East Jefferson avenue, in the city of Detroit, for a period of 5 years, in which to carry on a wholesale boot and shoe business. It is their claim that they were wrongfully evicted before their lease expired, and this suit was brought to recover damages for defendants' breach of covenant for quiet and peaceable possession. At the close of the proofs the trial court directed a verdict for defendants.

Plaintiffs not being content with this outcome secured an order for 20 days in which to move for a new trial, and also 20 days in which to prepare and file a bill of exceptions. No further order was entered in the case for 78 days. Plaintiffs then filed a motion for an extension of time in which to settle a bill of exceptions. This motion was not contested, and an order for the extension was made. Defendants subsequently filed a motion to strike the bill of exceptions from the files of this court and dismiss the writ of error, because of a lack of jurisdiction. This motion was heard when the case was argued on its merits.

For the purpose of setting at rest questions of practice arising in regard to the extension of time for settling bills of exception and cases made, this court, in an opinion by Mr. Justice McDONALD, construed the statute and laid down some very terse rules which should govern the practice. Walker v. WayneCircuit Judge, 226 Mich. 393" court="Mich." date_filed="1924-01-08" href="https://app.midpage.ai/document/walker-v-wayne-circuit-judge-3495067?utm_source=webapp" opinion_id="3495067">226 Mich. 393.

"3. If he desires more time he may secure a further extension not exceeding sixty days on ex parte application by producing the stenographer's certificate, but the order for thisextension must be secured during either of the above twenty-dayperiods.

"4. If he does not obtain this extension during one or the other of the periods above specified, the court loses jurisdiction and has no authority thereafter to grant an extension or to settle a bill of exceptions."

Plaintiffs' counsel seeks to excuse his failure to secure and file the certificate of the stenographer within the 20-day period by showing that he ordered the transcript and the stenographer promised he would file it, and a further showing that he afterwards requested the clerk to enter an order extending the time. As to the first excuse it may be said that the statute makes it the duty of the party, or his counsel, to file the certificate of the stenographer within the 20 days. If this duty is intrusted to another the party must assume the consequences of his neglect. As to the second excuse it is sufficient to say that the clerk of the court is not authorized to enter the order of extension without direction from the court.

A further showing is made that counsel for the appellees waived the default and is estopped from raising the question. This will not avail as the parties cannot confer jurisdiction on the court either by waiver or consent.Walsh v. Kent Circuit Judge, 225 Mich. 51" court="Mich." date_filed="1923-10-16" href="https://app.midpage.ai/document/walsh-v-kent-circuit-judge-3502618?utm_source=webapp" opinion_id="3502618">225 Mich. 51.

If the bill of exceptions be stricken from the files of this court, as it must be, the record remains. Haney v. Grand RapidsTrust Co., 221 Mich. 160" court="Mich." date_filed="1922-12-05" href="https://app.midpage.ai/document/haney-v-grand-rapids-trust-co-7952053?utm_source=webapp" opinion_id="7952053">221 Mich. 160. There has been no assignment of error on the record in this case which will be of any avail to the appellants without the aid of the bill of exceptions, therefore there is nothing for us to consider in that regard. It is indeed unfortunate that the right of review on the merits should be lost in this way. It appears that counsel relied upon others to file the certificate and enter the requisite order, undoubtedly in accordance with local practice, but they have failed to do so. Under such circumstances, there is nothing left for this court to do but to enforce its rules.

The motion will prevail, the bill of exceptions will be stricken from the files and the writ of error will be dismissed, but without costs.

CLARK, C.J., and McDONALD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ., concurred.