Reaume v. Brennan, Motion No. 476.

• Decision Date: 06 October 1941
• Docket Number: Motion No. 476.
• Citation: 300 N.W. 97,299 Mich. 305
• Parties: REAUME v. BRENNAN.
• Court: Michigan Supreme Court

299 Mich. 305

300 N.W. 97

REAUME

v.BRENNAN.

Motion No. 476.

Supreme Court of Michigan.

Oct. 6, 1941.

Proceeding by Royal Reaume against Vincent M. Brennan for a writ of mandamus directing respondent to vacate an order granting a delayed appeal from a circuit court commissioner's order awarding restitution of premises to plaintiff.

Writ of mandamus granted.

Argued before the Entire Bench.

Robert D. Anspach, of Detroit (A. Lewis Fineberg, of Detroit, of counsel), for petitioner.

Charles H. Atwell, and John A. Hamilton, both of Detroit, for respondent.

WIEST, Justice.

Plaintiff brought a summary proceeding before a circuit court commissioner to obtain possession of premises for nonpayment of rent by his tenants, George and Sarah Howard. The commissioner awarded restitution of the premises, found the amount of rent due and, no appeal having been taken, issued a writ of restitution and the Howards were ousted.

At the hearing of the summary proceeding the tenants offered evidence to show that they received notice from the public authorities that the wiring of the premises was defective, constituted a fire hazard and must be repaired, subject to inspection, within ten days; that, upon notice thereof to their landlord and his failure to make the repairs, they made the same at an expense of $105, and sent plaintiff their check for $45, and asked that the $105 so paid be credited on the $150 rent due.

The commissioner held such set-off could not be considered. Instead of taking an appeal the tenants filed a bill in equity against plaintiff, their landlord, and Charles E. and Delia Reaume, to vacate the judgment of eviction and have other relief against Charles and Delia Reaume. Later they petitioned for, and were granted a delayed appeal in the summary proceeding and the mentioned bill, as to Royal Reaume, was dismissed.

Plaintiff seeks our writ of mandamus directing the circuit judge to vacate the order granting the delayed appeal, claiming power to grant such appeal is regulated by statute and the showing was insufficient.

The motion for the delayed appeal was made and granted under Court Rule No. 76, § 6, sub.(d). The court found there was merit in the claim for the delayed appeal and the delay was not due to appellant's culpable negligence.

Right to a delayed appeal in the instance at bar is specifically made dependent, by statute, upon a showing and court finding thereon that ‘the party making the appeal has been prevented from taking the same by circumstances not under his control’. Comp.Laws 1929, § 16230, Stat.Ann. § 27.3488. No such showing, required by statute, was made or could have been made for defendant in the summary proceeding, instead of taking an appeal,...