Opinion
Submitted September 24, 1931. (Calendar No. 35,359.)
Writ granted October 5, 1931.
Mandamus by Steve Lepovsky to compel Henry H. Smith, Lapeer circuit judge, to set aside an order of dismissal of an appeal from justice's court. Submitted September 24, 1931. (Calendar No. 35,359.) Writ granted October 5, 1931.
Herbert W. Smith, for plaintiff.
Glen Smith, for defendant.
The circuit judge dismissed an appeal from justice's court for failure of the appellant to give notice of the appeal to the attorney for appellee under former Circuit Court Rule No. 11, as amended in 1927, and found in 237 Mich. p. xxxiii. This is review by mandamus, under old procedure, and we have, therefore, the benefit of a return by the circuit judge.
Morley G. Crafts brought suit in replevin against Steve Lepovsky before a justice of the peace, and obtained judgment. Lepovsky appealed. Return on appeal was duly filed. Notice of appeal was mailed to Crafts. The case was placed on the next term calendar and continued for the term at the request of the attorney for Mr. Crafts, the reason given being the inability of the attorney to locate his client. The case was continued over several terms of court by consent of the attorneys for the respective parties. At a term of the court, a year after the appeal, judgment by default was rendered in favor of Lepovsky. This judgment was set aside by the court, and, on motion of the attorney for Mr. Crafts, the appeal was dismissed for the reason above stated.
The case is ruled by Gogebic National Bank v. Gogebic Circuit Judge, 250 Mich. 160. The opinion in that case is readily accessible and we need not repeat what was there said, beyond saying that the appearance of the attorney for Mr. Crafts was general, in recognition of the jurisdiction of the circuit court, and constituted a waiver of notice under the rule.
The circuit judge is directed to vacate the order, dismissing the appeal, and to reinstate the same. Mr. Lepovsky will recover costs of this court against Mr. Crafts.
BUTZEL, C.J., and CLARK, McDONALD, POTTER, SHARPE, NORTH, and FEAD, JJ., concurred.