Lapham v. Marschner

Citation204 N.W. 101,231 Mich. 449
Decision Date18 June 1925
Docket NumberMotion No. 45.
PartiesLAPHAM v. MARSCHNER, Circuit Judge.
CourtSupreme Court of Michigan

OPINION TEXT STARTS HERE

Mandamus by James Lapham against Adolph F. Marschner, Wayne Circuit Judge. Writ denied.

Argued before McDONALD, C. J., and CLARK, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ.William A. Flanigan, of Detroit (Henry C. Walters and David N. Harper, both of Detroit, of counsel), for relator.

Ignatius J. Salliotte, of Detroit, for respondent.

CLARK, J.

The bill was filed in 1903. No attempt was made to bring the cause to trial until a motion to dismiss had been made by defendants in the cause in September, 1922. William A. Flanigan was substituted as attorney of record for plaintiff and trial followed, Mr. Henry C. Walters assisting, and Attorney Leo S. Schrot having principal charge of the cause.

Decree dismissing the bill was entered April 26, 1924. Plaintiff claimed appeal, paid the fee, filed certificate of the stenographer, and got extension of time for settling the case on appeal. The transcript was finished and an attorney, Schrot, informed thereof on or about June 14, 1924. By stipulation time was again extended from July 10 to August 15, 1924. Further stipulation of time was refused on or about August 15, and on that day an attorney for plaintiff obtained, without notice to attorney for defendants, an order extending time, which order, on motion, was set aside on August 20.

From August 20, when an attorney for plaintiff received the transcript, to October 28, 1924, nothing was done toward perfecting an appeal, as far as attorney for defendants had notice. On or about October 28, 1924, motion to extend time was made, supported by affidavits showing that Mr. Walters had been retained to work in conjunction with Mr. Flanigan and Mr. Schrot in preparing and presenting a case on an appeal, that Mr. Walters had been in Europe from July 9, 1924, to September 2, 1924, and that following his return had been ill and not able to transact business.

There were also affidavits, giving basis for the finding by the circuit judge, that Attorney Schrot had been notified by the stenographer on or about June 14, that the transcript was ready for delivery, but that the same was not procured until August 20. The motion was denied on November 1, 1924. A motion was then made by plaintiff to vacate the order denying extension of time. This was supported by affidavits elaborating the matter offered in support of the motion which had been...

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3 cases
  • Blue Cross and Blue Shield of Mich. v. Commissioner of Ins., Docket No. 79222
    • United States
    • Court of Appeal of Michigan — District of US
    • February 20, 1987
    ...703. A decision denying a motion for leave to appeal will not be reversed absent an abuse of discretion. Lapham v. Wayne Circuit Judge, 231 Mich. 449, 451, 204 N.W. 101 (1925); Smilansky v. Wayne Circuit Judge, 186 Mich. 463, 152 N.W. 1067 (1915); Jewell v. Grand Traverse County Probate Jud......
  • Von Zellen v. Stone
    • United States
    • Michigan Supreme Court
    • October 27, 1925
    ...with the judge who heard the case is well settled. Ostrander v. Circuit Judge, 211 Mich. 575, 179 N. W. 263;Lapham v. Circuit Judge, 231 Mich. 449, 204 N. W. 101, and cases there cited. The only question before us is whether appellant's protracted delay was excused and good cause for extens......
  • Gardner v. Mich. Sugar Co.
    • United States
    • Michigan Supreme Court
    • June 18, 1925

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