Cole v. Donovan

• Decision Date: 22 October 1895
• Court: Michigan Supreme Court
• Parties: COLE v. DONOVAN, CIRCUIT JUDGE.

64 N.W. 741

106 Mich. 692

COLE v. DONOVAN, CIRCUIT JUDGE.

Supreme Court of Michigan

October 22, 1895

Petition for mandamus by William Cole against J. W. Donovan, Wayne circuit judge. Writ denied.

John Galloway, for relator.

George G. Prentis, for respondent.

GRANT J.

One Anna E. Adams, administratrix of the estate of John Adams deceased, instituted proceedings against the relator under 2 How. Ann. St. c. 286, to recover possession of certain land. The circuit court commissioner rendered judgment in her favor. The defendant took an appeal to the circuit court filing an affidavit and bond with the commissioner, who made due return to the circuit court. The complainant moved to dismiss the appeal on the ground of a defective bond. The bond was approved by the deputy county clerk, under section 7000, 3 How. Ann. St. The sureties to such bond did not justify as required by section 7001, 3 How. Ann. St. The proceedings for appeal in this class of cases is regulated by section 8307, 2 How. Ann. St., which provides that appeals may be taken "within the same time, in the same manner and return may be compelled, and the same proceedings shall be thereon, as near as may be, and with like effect, as in cases of appeals from judgments rendered before justices of the peace." It is insisted by the relator that the bond should have been presented to the commissioner who tried the case, and that the proceeding is governed by the law relating to appeals as it existed in March, 1846. Several amendments have been made to the section of the justice act providing for appeals, the last of which was made in 1885, and is section 7000, 3 How. Ann. St. Under this act the bond may be taken by any justice within the county, or by the county clerk of the same county. Section 8307 does not limit the procedure upon appeal to the provisions of the justice act as they then existed. It provided by general reference to another law, and is intended to furnish a rule for future conduct, "always to be found, when it is needed, by reference to the law existing at the time when the rule is invoked." End. Interp. St. � 493; Kugler's Appeal, 55 Pa. St. 123.

2 How Ann. St. �� 7018, 7020, provide that no appeal shall be dismissed for any imperfection in the affidavit or bond provided a new affidavit is made, and a new bond given, to be approved by the court. It is, however, the duty of the appellant to offer a new affidavit and...