Puffer v. State Mutual Rodded Fire Insurance Co.

Per Curiam. In this case a judgment was entered in tbe circuit court for tbe county of Kalkaska in favor of tbe plaintiff on September 24, 1931. Defendant’s attorney mailed in Bay City a preliminary *76 notice of appeal to the county clerk on October 10th. It was received and filed by him on October 14th. He also mailed a copy thereof on the same day to the plaintiff’s attorney, and one addressed to “Circuit Court Stenographer, Cadillac.” This latter notice was not received by the stenographer who reported the case, which was tried in Cadillac, until several days later. Proof of service of these notices was not mailed to the county clerk until November 6th. Plaintiff’s attorney moved in the circuit court to dismiss this appeal. Defendant’s attorney asked that if the motion be denied he be permitted to correct any irregularities in the perfecting of the appeal. It seems to have been conceded that the trial court had jurisdiction to hear the motion to dismiss. He concluded that the court rules had not been complied with, and entered an order on November 12th dismissing the appeal. In an opinion of this court, handed down on December 10, 1931 (Hoffman v. Security Trust Co., 256 Mich. 383), it was held that— “An appeal is perfected when notice of appeal is filed within the required time. * * * The other acts necessary to complete an appeal are not jurisdictional. * * * When the appeal is perfected by seasonable filing of the notice of appeal, the jurisdiction of the appellate court attaches and the trial court has no authority to dismiss the appeal.” It follows that the order dismissing the appeal must be set aside. As it appears that there was reasonable excuse for the nonperformance of the other acts to complete the appeal, we see no reason for the issuance of an order to show cause on defendant’s motion, but hereby direct the trial court to enter such order as may be necessary therefor.