Lucas v. Swarthout

• Decision Date: 20 November 1894
• Citation: 102 Mich. 492,60 N.W. 973
• Court: Michigan Supreme Court
• Parties: LUCAS v. SWARTHOUT.

60 N.W. 973

102 Mich. 492

LUCAS v. SWARTHOUT.

Supreme Court of Michigan

November 20, 1894

Certiorari to circuit court, Saginaw county; Robert B. McKnight, Judge.

Action by Arthur H. Swarthout against Elizabeth Lucas. This action was brought in justice court, and judgment had for defendant. Plaintiff appealed to the circuit court, where his appeal was dismissed on motion, and he was ordered to pay certain attorney's fees. He failed to pay the same, and an order was made committing him for contempt. This is certiorari to the circuit court to review such order. Order set aside.

Bauer & Eaton, for relator.

John F O'Keefe (Weadock & Purcell, of counsel), for respondent.

McGRATH C.J.

This is certiorari to the circuit court to review an order committing respondent for contempt. Swarthout brought suit in justice court against Elizabeth Lucas. Defendant had judgment, from which plaintiff appealed.

On motion to dismiss the appeal, the following order was entered: "In this cause, motion having been made by Fred. L. Eaton, Jr., attorney for the defendant and appellee to dismiss the appeal for failure to comply with the statute after hearing counsel for the respective parties therein, it is ordered that the said plaintiff and appellant pay to the said defendant and appellee the sum of $17.75, justice fees in said cause, as provided for in section 7001, Howell's Annotated Statutes, and the bond in said cause be amended within ten days; and, in default of said plaintiff complying with said conditions as aforesaid within said time, the said appeal to be dismissed. And it is further ordered that the said plaintiff pay to the said defendant's attorney the sum of $5, as an attorney fee for said motion." The purpose of section 7260, How. Ann. St., is to enable courts to enforce interlocutory orders, no other means of enforcement being provided by statute. Section 7257 expressly confines the remedy by contempt proceedings to cases where by law, execution cannot be awarded. Section 7021 expressly provides that if an appeal be dismissed or discontinued the court shall enter judgment in favor of the appellee for costs. In Detroit & B. P. R. Co. v. Wayne, Circuit Judge, 27 Mich. 303, it was held that the proper practice, in case of a motion to dismiss an appeal for defects in the affidavit or bond, is to make an order nisi that the appeal be dismissed unless, within a time specified a new and correct affidavit or...