Detroit Trust Co. v. St. Clair Heights Syndicate, Ltd. (In re Widening Woodward Ave.)
| Decision Date | 05 December 1933 |
| Docket Number | No. 127.,127. |
| Citation | 251 N.W. 379,265 Mich. 87 |
| Parties | In re WIDENING WOODWARD AVE. DETROIT TRUST CO. v. ST. CLAIR HEIGHTS SYNDICATE, Limited, et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Recorder's Court of Detroit; Arthur W. Kilpatrick, Circuit Judge, Sitting in Recorder's Court.
Condemnation proceeding in the matter of widening Woodward Avenue from Adams Avenue to the southerly line of West Grand Boulevard, where not already widened, as a public street and highway, by the City of Detroit, a municipal corporation, against the Detroit Trust Company, a Michigan corporation, as trustee, and the St. Clair Heights Syndicate, Limited, a partnership association. Joint verdict for respondents as to condemned parcel 40. From an order amending the verdict by striking therefrom the name of the trustee, it appeals, and the Syndicate files a motion to dismiss the appeal, and the trustee files a motion for delayed appeal by certiorari or mandamus from the order amending the verdict and from the judgment confirming the verdict as amended.
Motion to dismiss denied. Motion for delayed appeal from the judgment of confirmation allowed. Judgment reversed, and cause remanded, with directions.
Argued before the Entire Bench.
Miller, Canfield, Paddock & Stone, of Detroit, for Detroit trust co.
George E. Brand, of Detroit, for St. Clair Heights Syndicate, Limited.
The controversy is between appellant Detroit Trust Company, as trustee mortgagee in real estate mortgage to secure a bond issue, and appellee St. Clair Heights Syndicate, Limited, owner of the property secured by the mortgage. In a condemnation proceeding in the city of Detroit the jury returned a joint verdict for damages for taking part of the premises and did not ‘apportion and award to the parties in interest such portion of the compensation as it shall deem just,’ as the city charter provides. The verdict was entered February 16, 1932.
April 26th, on alternative motion of appellee to amend the award by striking appellant's name therefrom or to cause the respective damages of these parties to be determined and separate awards made, the court entered an order amending the verdict by striking out appellant's name. April 30th, appellant took this appeal as of right and without leave of court. The verdict, as amended, was confirmed on July 21st. No appeal was taken by appellant from the judgment of confirmation.
A question of practice is presented. After the record reached this court, and on September 28, 1933, appellee moved to dismiss the appeal because it was taken without leave and on the ground that this court has no jurisdiction. After argument in this court, appellant petitioned for delayed appeal by certiorari or mandamus to the order of amendment and by general appeal from the judgment of confirmation.
The court rules of 1931 made no change in the practice that appeal of right is proper only from a final judgment or order. The appeal in condemnation proceedings is ‘the ancient review on error.’ Morgan v. City of Detroit, 251 Mich. 63, 230 N. W. 928, 929.
The order amending the verdict was, in effect, a ruling in the course of trial, not a final judgment. If reviewable, whether by mandamus or certiorari, leave was required. Delayed appeal by either writ cannot now be allowed because final judgment of confirmation has intervened, entered when this court had no jurisdiction of the condemnation proceedings. This court can take jurisdiction only on appeal from the judgment of confirmation.
The Detroit Charter, like C. L. 1929, § 3797, requires notice of appeal to be filed within five days after confirmation, but ‘such appeal shall be perfected within the same time and prosecuted as an appeal in chancery, as near as may be, subject to the provisions of this act.'
The statute governing chancery appeals, C. L. 1929, § 15510, authorizes this court to extend the time for taking and perfecting an appeal not exceeding one year and six months. ‘Taking’ an appeal consisted in filing a claim therefor and paying the fee. Wolverine Packing Company v. Oceana Judge, 249 Mich. 599, 229 N. W. 429. Where it was not necessary to settle a case, the appeal was thereby ‘perfected’; otherwise it was perfected when the case was settled and signed. C. L. 1929, § 15514.
Appellee contends that the language of the condemnation statute confines the chancery practice to proceedings for ‘perfecting,’ does not extend it to ‘taking,’ the appeal and shows clear intention of the Legislature that the time for ‘taking’ cannot be enlarged.
Obviously, the chancery practice adopted in condemnation proceedings is not confined to the procedure existing when the charter was adopted, but was intended to be the practice in vogue at the time of appeal. The court rules of 1931 and 1933 were adopted in pursuance of legislative desire (Act No. 377, Pub. Acts 1927, and C. L. 1929, § 13604) that this court reassume its constitutional function to establish the practice. Const. art. 7, § 5. By section 13604 the Legislature declared that the practice established by court rule for the exercise of appellate jurisdiction should prevail over statute. Under rule 56, § 1, any distinction between ‘taking’ and ‘perfecting’ an appeal has been abolished. The word ‘taking’ has been dropped and an appeal is ‘perfected’ by filing a...
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