139 Mich. 146 | Mich. | 1905
This is an appeal taken from an Order confirming a sale under a chancery decree. The order appealed from was entered April 11, 1904. The notice of appeal was filed on the 18th of May, 1904. On the 19 th of May a motion was entered to amend the order of
It is clear that an appeal does not lie from a decree or order of the circuit court in chancery to procure a review of provisions contained in such order or decree which were assented to by the appealing party. Chapin v. Perrin, 46 Mich. 130.
It is contended, however, that, as the appeal was taken before the order nunc pro tunc was entered, the cause was so far removed from the circuit court in chancery that no valid order could be made therein. Under the statute as it now reads, an appeal from a chancery decree does not operate as a supersedeas unless a bond be filed. Act No. 243, Pub. Acts 1899; Harmon v. Metcalfe, 134 Mich. 643. The circuit court in chancery may therefore enforce its decree, and no good and adequate reason is suggested why the court may not, at least as a preliminary to the enforcement of the decree, amend the same to conform to the fact.. This has been done in proceedings at law in numerous instances. Tillotson v. Cheetham, 3 Johns. (N. Y.) 95; Rew v. Barker, 2 Cow. (N. Y.) 408, and cases cited. In case such an amendment occurs after the case has been removed by writ of error, it is true, it may be necessary to have a new return, but this is not uncommon. This court has in several unreported cases remanded records for the purpose of permitting amendments. In the present case by a further return of the register the proceedings by which the amendment was allowed are before us. Upon a showing such as is contained in the affidavit of the com
The decree is affirmed.
