Shane v. Himelstein
| Decision Date | 02 June 1924 |
| Docket Number | No. 73.,73. |
| Citation | 227 Mich. 465,198 N.W. 909 |
| Parties | SHANE et al. v. HIMELSTEIN et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, Wayne County; Ormond F. Hunt, Judge.
Action by Sidney S. Shane and another, copartners, against Max Himelstein and others, copartners, etc. Judgment for defendants, and plaintiffs bring error. Writ dismissed.
Argued before CLARK, C. J., and McDONALD, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ. Benjamin, Betzoldt & Bassett, of Detroit, for appellants.
Seymour J. Frank, of Detroit, for appellees.
Plaintiffs leased the second floor of 137 Jefferson avenue, in the city of Detroit, for a period of five years, in which to carry on a wholesale boot and shoe business. It is their claim that they were wrongfully evicted before their lease expired, and this suit was brought to recover damages for defendants' breach of covenant for quiet and peaceable possession. At the close of the proofs the trial court directed a verdict for defendants.
Plaintiffs not being content with this outcome secured an order for 20 days in which to move for a new trial, and also 20 days in which to prepare and file a bill of exceptions. No further order was entered in the case for 78 days. Plaintiffs then filed a motion for an extension of time in which to settle a bill of exceptions. This motion was not contested, and an order for the extension was made. Defendants subsequently filed a motion to strike the bill of exceptions from the files of this court and dismiss the writ of error, because of a lack of jurisdiction. This motion was heard when the case was argued on its merits.
For the purpose of setting at rest questions of practice arising in regard to the extension of time for settling bills of exception and cases made, this court, in an opinion by Mr. Justice McDonald, construed the statute and laid down some very terse rules which should govern the practice. Walker v. Richter, 226 Mich. 393, 197 N. W. 534.
‘(3) If he desires more time he may secure a further extension, not exceeding 60 days, on ex parte application by producing the stenographer's certificate, but the order for this extension must be secured during either of the above 20-day periods.
‘(4) If he does not obtain this extension during one or the other of the periods above specified, the court loses jurisdiction and has no authority thereafter to grant an extension or to settle the bill of exceptions.'
[1] Plaintiff seeks to excuse his failure to secure and file the certificate of the stenographer within the 20-day period by showing that he ordered the transcript, and the stenographer promised...
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