Hailey v. Saginaw Justice of the Peace

Sharpe, J. Petitioners, Bert B. Hailey and Mable Hailey, his wife, filed a petition for a writ of prohibition to restrain William J. Wolf, justice of the peace for the city of Saginaw, and Dale D. Doyle and Margaret Doyle from taking any further proceedings to enforce a judgment obtained against petitioners in the Saginaw justice court under date of July 11, 1941. Respondents filed a reply in which they deny that petitioners are entitled to the writ of prohibition for reason that there is a valid and subsisting judgment in the justice court for the city of Saginaw in favor of Dale D. Doyle and Margaret Doyle against Bert B. Hailey and Mable Hailey. An enumeration of the facts leading up to the petition seems necessary for a proper understanding of the issues involved. On July 11, 1941, a judgment was entered in the amount of $490 and costs in favor óf Dale D. Doyle and Margaret Doyle,, his wife, against Bert B. Hailey and Mable Hailey. An appeal was taken by Hailey and wife and return was made to the circuit court of Saginaw county on July 16, 1941, where both parties appeared and defendants Hailey requested a trial by jury. On May 3, 1943, this appeal was dismissed for want of progress. On November 16, 1945, petitioners Hailey filed a motion to strike the words “on appeal” from the order dismissing the appeal. Subsequently and on April 16, *62 1947, petitioners filed a motion for reinstatement oftlie appeal for the reason that the court was not authorized to dismiss appeals and could only dismiss causes. Subsequent to the dismissal of the appeal by the circuit court, respondents Doyle served a copy of the dismissal order upon one of the justices for the justice court for the city of Saginaw. Thereafter and on April 23, 1947, a writ of garnishment was issued out of the justice court. Petitioners Hailey, who were defendants in the justice court, filed a motion therein to dismiss the garnishment proceedings for the reasons alleged that no valid judgment exists upon which a writ of garnishment may be based. The justice of the peace denied the motion. Following the denial of this motion, petitioners filed their petition for a writ of prohibition. A show cause order was issued out of the Supreme Court, to which the respondents filed a reply. It is the position of petitioners that respondents are attempting to enforce a void judgment and they rely on Miller v. Davis, 241 Mich. 544, and Northrup v. Jay, 262 Mich. 463, and urge that after the return on appeal was made and filed in the circuit court, the case became a circuit, court cause-and was subject to all the rules and regulations of the circuit court as if made and filed in an action originally commenced in said circuit court. It is the position of respondents that when an appeal is dismissed or discontinued under the ‘ ‘ no progress” statute,-3 Comp. Laws 1929, § 14253 (Stat. Ann. § 27.982), the judgment of the justice court is in- full force and remains a valid judgment. When a cause is appealed from a justice court to the circuit court, the appealing party shall furnish a bond as required by 3 Comp. Laws 1929, § 16225 (Stat. Ann. § 27.3483). One of the conditions of the bond is that: *63 “(3) It shall contain a condition that the appellant will prosecute his appeal with all due diligence, to a decision in the circuit court, and that if a judgment be rendered against him in such court, he will pay the amount of such judgment, including all costs, with interest thereon, and if his appeal shall be discontinued or dismissed that he will pay the amount of the judgment rendered against him, if any, in the justice’s court including all costs, with interest thereon.” Section 16242, 3 Comp. Laws 1929 (Stat. Ann. § 27.3500), reads as follows: “Upon an appeal being dismissed or discontinued, and a certified copy of the order of dismissal or discontinuance being served upon the justice, he shall proceed thereon as if no appeal had been made.'” The effect of a dismissal of an appeal is stated in 4 C.J.S. p. 2007: “On the dismissal of an appeal * * * the cause stands in the trial court as if no appeal had ever been taken; * * * the decree or order appealed from becomes final, and the effect of such dismissal is to leave the parties where they were before the appellate proceeding was instituted. ’ ’ However, there is a distinction between the dismissal of an appeal and the dismissal of a suit. The dismissal of a suit or case concludes the litigation, see. Miller v. Davis, supra., and Northrup v. Jay, supra, but in the dismissal or discontinuance of an appeal, the judgment of the justice court is revived, see French v. Weise, 112 Mich. 586. In the case at bar, petitioners filed a motion to strike the word “appeal” from the order dismissing the appeal and later filed a motion for reinstatement of the appeal. The motion to reinstate the appeal was a recognition of the validity of the jurisdiction *64 of the trial court to dismiss the appeal, see Northrup v. Jay, supra, hence we shall treat this controversy as a dismissal of an appeal rather thán the dismissal of a canse. The cases relied upon by petitioners do not relate-to the dismissal of an appeal and therefore are not authority on snch an issue. Petitioners could have sought leave to appeal from the denial of their motion to reinstate. Petitioners also urge that the no progress statute only authorizes the dismissal of appealed causes where the parties have had a’ chance to be heard and have not taken advantage of the opportunity. Circuit Court Rule No. 3 (Saginaw circuit) reads as follows: “Whenever any cause either at law or in chancery be at issue as-to all parties, any attorney desiring to obtain a trial or hearing thereof shall file a praecipe for hearing with the clerk, which praecipe shall be given a consecutive number.” The cause was appealed on July 16, 1941, and was not dismissed until May 3, 1943. During this period of time petitioners could have praeciped the cause for trial. It is now too late to complain of their inaction. The trial court was not without authority in dismissing the appeal under the no progress statute as the dismissal of a case that has been brought into the circuit court by appeal follows the same procedure as if the case was originally started in the circuit court, see Miller v. Davis, supra. In Rogers v. Wayne Circuit Judge, 243 Mich. 703, we, said: “The writ of prohibition is an extraordinary writ and should not and will not be granted where petitioner has an adequate remedy by some other proceedings.” *65 Under the facts and circumstances in this case, we decline to issue the writ. Respondents may recover costs. Bushnell, O. J., and Reid, North, Butzel, and Carr, JJ., concurred with Sharpe, J. Boyles and Dethmers, JJ., concurred in the result.