Combs v. Wilber

Montgomery, J. ' Eelator recovered judgment in justice’s court on July 7, 1893, against Israel B. Sutton. July 12 —the last day for appeal — the defendant prepared a bond and affidavit, appended a justification taken before a notary public, and in the absence of the justice, who was out of the city, left the papers in the files of the case, which [236] were found in the office of the justice. The fees had been previously paid by the defendant to the justice. The justice made a return to this appeal, but on motion the appeal was dismissed by the circuit court; and defendant thereupon made a motion for leave to enter a dilatory appeal, under section 7005,1 ***56How. Stat., which motion was granted by the circuit judge. The section referred to provides that appeals may be allowed by the circuit court, or a judge thereof 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. The only ground for saying that the defendant in this case was prevented from taking his appeal is that the absence of the justice was an obstacle to his perfecting the appeal. But section 7006, How. Stat., provides that the affidavit and bond or recognizance, in case of the absence from his dwelling-house of the justice by whom the judgment was rendered, may be served on any member of his family of [237] suitable age, and the costs and fees may be paid to such member of his family. It does not appear that the defendant could not have complied with this provision, and therefore it cannot be said that he' was prevented by circumstances not under his control from taking the appeal. It was suggested that he could not have complied with this statute fully, because the costs and fees had already been paid to the justice, and that, if he had attempted to proceed under this section, he would have been required to pay these costs and fees again. But we do not think the statute should be so construed. The provision that he may pay the costs and fees to a member of the family need not be acted upon when he has already complied with the requirement by paying the fees and costs to the justice. This Court has repeatedly held that the granting of permission for a dilatory appeal is not a matter of discretion, but that, to justify such an order, the party must bring himself within the terms of the statute. This we think the appellant failed to do in the present case. See Draper v. Tooker, 16 Mich. 74; Dale v. Lavigne, 31 Id. 149. Mandamus must issue as prayed. The other Justices concurred. Footnotes [1] Amended by Act No. 73, Laws of 1891.