Woodliff v. Citizens' Bldg. & Realty Co.

• Decision Date: 07 January 1929
• Docket Number: No. 57,June Term, 1927.,57
• Citation: 222 N.W. 730,245 Mich. 292
• Parties: WOODLIFF et al. v. CITIZENS' BUILDING & REALTY CO. et al.
• Court: Michigan Supreme Court

245 Mich. 292

222 N.W. 730

WOODLIFF et al.

v.CITIZENS' BUILDING & REALTY CO. et al.

No. 57, June Term, 1927.

Supreme Court of Michigan.

Jan. 7, 1929.

On rehearing. Judgment reversed in part.

For former opinion see 240 Mich. 413, 215 N. W. 343.

Argued before the Entire Bench.Milburn & Semmes, of Detroit, for appellants Kenneth M. De Vos and Mary Alice De Vos.

Davidow & Davidow, of Detroit, for appellant Byron J. Oades.

Clark, Emmons, Bryant & Klein, of Detroit, for Otis Elevator Co.

FEAD, C. J.

This is rehearing of the appeal of Byron J. Oades in the case reported in 240 Mich. 413, 215 N. W. 343, in which it was held that appellate jurisdiction had not been acquired by this court because of Oades' failure to file claim of appeal within the required 20-day period after entry of decree. The ruling was made under misapprehension of the facts, because of incompleteness of the printed record. The decree appealed from was entered July 31, 1926. Oades filed claim of appeal and paid the fee on August 24, and gave notice to the other parties on August 25. The printed record did not disclose the fact, which is shown by the original files, that defendants De Vos filed claim of appeal and paid the fee on August 18, within the 20-day period. Under Supreme Court rule 61, this action by defendants De Vos entitled Oades to appeal within 20 days after receiving notice of their appeal.

No case was settled, and plaintiff contends that Oades' appeal was not perfected. Where it is not necessary to settle a case, the appeal is perfected upon filing claim of appeal and payment of the fee. 3 Comp. Laws 1915, § 13759. Counsel disagree as to whether any testimony was taken upon the hearing. Upon the issue raised by Oades, that the circuit court had no jurisdiction to enter the decree of July 31, 1926, it was not necessary to settle a case. If the court had jurisdiction, the decree is unassailable on this record whether testimony was or was not taken. If want of jurisdiction affirmatively appears by the files, it would not be cured by testimony on a hearing. Plaintiff has suggested no amendments to the record which would affect the jurisdiction of the court as disclosed by the files.

Oades' appeal was properly taken and is here for determination upon the question of jurisdiction of the circuit court to enter the decree.

The original case came to this court on appeal from decree of the circuit court entered March 25, 1925, and is reported in 233 Mich. 288, 206 N. W. 542. This decree determined the rights and liabilities of plaintiff and Oades as to each other and to the property involved, and left nothing for further determination except in connection with closing the receivership. It awarded no personal decree against Oades except for costs. Neither plaintiff nor Oades appealed from the decree. On January 12, 1926, this court entered a decree, reversing the decree of the circuit court only as to defendants DeVos. The decree of July 31, 1926, imposed on Oades a personal liability to plaintiff not included in, reserved, nor suggested by the decree of March 25, 1925.

An appeal brings...