Swarthout v. Lucas

McGrath, 0. J. This is certiorari to the circuit court to review an order committing plaintiff for contempt. Swarthout brought suit in justice^ court against Elizabeth [494] Lucas. Defendant had judgment, from which plaintiff appealed. On motion to dismiss the appeal, the following order was entered: “In this cause, motion having been made by Fred. L. Eaton, Jr., attorney for the defendant and appellee, to dismiss the appeal for failure to comply with the statute, after hearing counsel for the respective parties therein, it is ordered that the said plaintiff and appellant pay to the said defendant and appellee the sum of $17.75, justice’s fees in said cause, as provided for in section 7003, Howell’s Annotated Statutes, and the bond in said cause be amended, within 10 days; and, in default of said plaintiff complying with said conditions as aforesaid within said time, the said appeal to .be dismissed. “And it is further ordered that the said plaintiff pay to the said defendant’s attorney the sum of $5, as an attorney fee for said motion.” The purpose of section 7260, How. Stat., is to enable courts to enforce interlocutory orders, no other means of enforcement being provided by statute. Section 7257 expressly confines the remedy by contempt proceedings to cases where, by law, execution cannot ‘be awarded. Section 7021 expressly provides that, if an appeal be dismissed or discontinued, the court shall enter judgment in favor of the appellee for costs. In Detroit & Birmingham Plank Road Co. v. Circuit Judge, 27 Mich. 303, it was held that the proper practice, in case oft a motion to -dismiss an appeal for defects in the affidavit or bond, is to make an order nisi that the appeal be dismissed unless, within a time specified, a new and correct affidavit or bond be filed. The court had the power to enter such an order, and to make the payment of the costs one of the conditions, and a part of the judgment in case the other conditions were not complied with. The case must be treated as though such practice had been followed. The court having ample power to enforce its order, and to award an execution for [495] the costs, it could not, by the mere form of the order, deprive the party of the protection of the statute. The order adjudging plaintiff guilty of contempt must be set aside, with costs .against defendant. . The other Justices concurred.