Frank v. Union Trust Co.

The plaintiffs have brought error to review a judgment of the circuit court for the county of Wayne, Michigan. On the 4th day of June, 1926, a judgment was rendered in the circuit court commissioner's court of Wayne county against the defendant for the restitution of certain premises in the city of Detroit. No appeal from this judgment was taken, and the 30 days provided by statute for *Page 647 redemption were allowed to pass without any action on the part of the defendant. A writ of restitution was duly issued and served on July 8, 1926. On July 10, 1926, the defendant filed a petition in the circuit court for special leave to appeal, and on November 11, 1926, an order was entered granting the prayer of the petition. When the case came on to be heard the plaintiffs moved to dismiss the appeal. The motion was denied. On the hearing judgment of restitution was entered for the plaintiffs. They submitted proposed amendments to the findings of the court and duly excepted to their denial. The only question to be considered is whether the court was in error in granting the defendant's petition for leave to appeal. The statute relative to appeals from circuit court commissioners is section 13252, 3 Comp. Laws 1915. It provides: "Either party conceiving himself aggrieved by the determination or judgment of the commissioner or other officer, made or rendered under the provisions of this chapter, may appeal therefrom to the circuit court for the same county, within the same time, in the same manner, and return may be compelled, and the same proceedings shall be thereon had, as near as may be, and with the like effect, as in cases of appeals from judgments rendered before justices of the peace, and costs shall be awarded and collected in the circuit court in the same manner." * * * Appeals from justice's court judgments must be taken within five days after the rendition of the judgment. 3 Comp. Laws 1915, § 14402 et seq. Section 14408 relates to delayed appeals and provides that: "Appeals may be authorized by the circuit court, or by the circuit judge at chambers, after the expiration of five days, when the party making the appeal has been prevented from taking the same by circumstances not under his control." * * * *Page 648 This section of the statute applies to appeals from circuit court commissioners. Feldman v. Zimmerman, 208 Mich. 240. The question is whether the defendant was prevented from taking an appeal from the judgment of the commissioner within the statutory period by circumstances not under its control. The application for the appeal shows that the defendant had no knowledge of the rendition of the judgment until served with a writ of restitution more than 30 days after it was rendered. It was served with summons which it promptly placed in the hands of its attorneys with instructions to defend the action, and if judgment were rendered against it, to take an appeal to the circuit court. Through the neglect of the attorneys, default judgment was taken by the plaintiffs; no appeal therefrom was filed, and no notice of the judgment was received by the defendant until long after the time allowed by statute for taking an appeal had elapsed. Reliance upon an attorney who neglects to take an appeal seasonably is a circumstance beyond the control of the client, within the meaning of the statute. The time for taking an appeal and the manner of taking it are matters without the knowledge of the lay citizen. He must rely on attorneys to do this work for him. They are sworn officers of the court, authorized by law to represent clients in lawsuits. The client has a right to rely on them, and when, without his fault or default, they neglect to appeal from a judgment which he desires to have reviewed, it is a circumstance not under his control, within the meaning of the belated appeal statute. InKowalsky v. Wayne Circuit Judge, 221 Mich. 457, the plaintiff relied on her husband to look after her interests in proceedings before a circuit court commissioner. Through his neglect she was prevented from taking an appeal within the time allowed by statute. It was held that *Page 649 it was not a circumstance beyond her control. Mr. Justice WIEST, who wrote the opinion, distinguished between reliance on an attorney and reliance on an ordinary agent. He said: "The reason why one may rely upon action by an attorney is apparent. An attorney is an officer of the court, licensed to represent others in suits, and when employed to look after a client's interests, he is amenable for wilful neglect." In Capwell v. Baxter, 58 Mich. 571, the defendant was prevented from taking an appeal from a justice's court judgment by reliance on his attorneys, who were honestly mistaken as to the date of an adjournment, and for that reason allowed judgment to be taken by default, and the time for appeal to elapse. This court held that the appeal was prevented by circumstances not within the control of the client. An attempted distinction is made between that case and the case at bar, because there the failure of the attorneys was due to an honest mistake, and here it was plain neglect. We see no distinction. In both instances the action or nonaction of the attorneys was beyond the control of the client. Our attention is called to the case of Denver, etc., R. Co. v. Wayne Circuit Judge, 227 Mich. 589, which it is claimed is not in harmony with the rule that failure to seasonably appeal, because of reliance on attorneys, brings the party within the terms of the statute authorizing belated appeals. The language of the court in that case applies only to the particular facts there under consideration, and to a different statute than that authorizing appeals in cases like the one at bar. That was an attempted special appeal from a judgment in justice's court of the city of Detroit, under a local act authorizing belated appeals when a party has been prevented from making a defense on the merits, by circumstances not under his control, or when justice requires that the case should be reviewed. In *Page 650 that case the proceedings in justice's court showed that the defendant appeared specially and moved to set aside the service. It was trying to avoid making a defense on the merits. The circumstance relied on as justifying a delayed appeal prevented it from pursuing its technical defense, but did not prevent a hearing on the merits. With these facts before it, this court said: "The affidavits do not disclose reasons which justify a finding that defendant 'has been prevented from making a defense upon the merits * * * by circumstances not under' its control, or that 'justice requires that such appeal should be authorized.' " In the instant case the defendant, Union Trust Company, was administrator of the estate of Martha A. Scrase. Her son and sole heir, Albert L. Scrase, was the owner of an equity in the property in question, amounting to $66,123.13. He was the party in interest. He had no control over the litigation, but was compelled to look to the Union Trust Company to protect his rights. It was necessary for the company to employ attorneys to manage the lawsuit. In doing so it instructed them to take an appeal if judgment was rendered against it. It could have done nothing further to protect the interests of the estate. In view of these facts, its failure to take a timely appeal was due to circumstances not under its control. We think that the circuit judge correctly disposed of the question. The judgment is affirmed, with costs to the defendant. SNOW, FELLOWS, and WIEST, JJ., concurred with McDONALD, J.