Masonite Corp. v. Martin

• Decision Date: 13 May 1946
• Docket Number: No. 28.,28.
• Parties: MASONITE CORPORATION v. MARTIN.
• Court: Michigan Supreme Court

314 Mich. 411

22 N.W.2d 757

MASONITE CORPORATION

v.MARTIN.

No. 28.

Supreme Court of Michigan.

May 13, 1946.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Wayne County; Ira W. Jayne, judge.

Action by Masonite Corporation against Harry D. Martin, wherein plaintiff recovered a judgment against defendant in the Common Pleas Court of the City of Detroit and defendant took an appeal to the Circuit Court for Wayne County. From an order of the Circuit Court dismissing the appeal, defendant appeals.

Order affirmed.

Before the Entire Bench.

Cook, Baumann & Cook, of Detroit, for appellant.

Lawhead, Kenney & Radom, of Detroit, for appellee.

BUSHNELL, Justice.

No disputed questions of fact are involved in this appeal, the sole question being whether the provisions of Act No. 314, chap. 78, § 2a, Pub.Acts 1915, as added by Act No. 132, Pub.Acts 1939, Comp.Laws Supp.1940, § 16224-1, Stat.Ann.1945 Cum.Supp. § 27.3482 (1), must be complied with in appeals from the common pleas court of the city of Detroit to the Wayne circuit court. See. also, Court Rule No. 76, § 8 (1945).

On May 18, 1945, Harry D. Martin, appellant herein, took a general appeal from a common pleas court judgment in favor of plaintiff in the sum of $616.57, and costs. On the same day Martin served copies of his claim of appeal and affidavit in support thereof upon plaintiff's attorney. The original affidavit and bond on appeal were delivered to the clerk of the common pleas court, and on the same day the costs of the suit and the appeal fee were paid. On May 25th the common pleas court filed a return in the circuit court, together with the appeal bond. On June 11th plaintiff entered a special appearance in the circuit court and filed a motion to dismiss defendant's appeal, on the ground that the circuit court had not acquired jurisdiction. Plaintiff claimed therein that the defendant did not, within five days after the return on appeal had been filed, comply with the statutory requirements, viz., serve on him ‘a copy of the affidavit and bond filed by him together with notice of the date of filing of the return on appeal and a notice to the effect that the opposite party is required to enter his appearance in the circuit court within 20 days after the date of filing of the return on appeal upon counsel for the opposite party in the court below.’

Section 8 of Court Rule 76 reads:

‘In all appeals, within the time limited for perfecting an appeal, the appellant shall also do the following:

‘(a) Secure the approval of, and file with the lower court such bond as may be required by law as a condition of the appeal;

‘(b) Pay such fee as may be required by law for taking such appeal;

‘(c) Make any delivery or deposits of money or property or documents, and do any other act which may be required by law.’

The trial judge dismissed defendant's appeal on the ground that, in the absence of a service of the copy of the affidavit, bond and notices required by ...