Lum v. Fairbanks

Ostrander, J. A final decree was entered April 26, 1907, claim of appeal made June 18, 1907, the time extended 90 days from June 22, 1907, bond filed July 8, 1907, case settled April 18, 1908, and the certified transcript filed in the office of the clerk of the circuit court April 21, 1908. The register’s fee was not paid until August 19, 1908, when the case was forwarded to' the clerk of this court. No notice of perfecting the appeal was given to counsel for the appellee. It appears that the record is printed and the case noticed for hearing at the present October term of this court. The records, however, were not received by the clerk of this court until after the first day of the term, for which reason the cause was stricken from the docket, under the rule. Copies of the printed record were delivered to counsel for appellee on August 26, 1908, and on September 19, 1908, appellant’s brief was served. A motion to dismiss the appeal was entered October 12, 1908 — the reasons assigned being (1) that the transcript was not filed with the clerk of the court below immediately upon being certified by the judge; (2) that the statute fee was not paid to the register for nearly four months thereafter; (3) that no notice of perfecting the appeal was served. The delay of three days in filing the certified case is explained, and counsel for appellee are not in position to take advantage of the failure to serve notice of perfecting the appeal. They accepted copies of the record and of the brief for the appellant, and expected the case to be heard at the present term of this court. It appears, however, that they did not know when the register’s fee was paid or the transcript returned to this court until some time, the date not stated, three or four weeks before October 24th. The statute (1 Comp. Laws, §§ 551, 552) treats an appeal as perfected when the certified case is duly filed with the register of the court. And where an appeal was not perfected within the statute period, and the delay was due to default on the part of the appellant, jurisdiction of the appellate court was denied. Waterman v. Bailey, [25] 111 Mich. 571. See City of Kalamazoo v. Power Co., 122 Mich. 489. And it was held in Bennett v. Hickey, 110 Mich. 628, and in Trombly v. Klersy, 139 Mich. 311, that failure to pay the register’s fee within the time limited by 1 Comp. Laws, § 553, would require that the appeal be dismissed, in the absence of waiver on the ¿art of the appellee. It is now required that all appeals in chancery cases shall be taken and perfected under the provisions of Act No. 340, Pub. Acts 1907, which went into effect June 38, 1907. By its terms this act limits the time for perfecting an appeal to one year from the filing of the decree, and requires that the register’s fee be paid when the settled case is filed with the register. It has been held that the requirement of this statute relative to payment of the fee is mandatory. Thompson v. McKay, 154 Mich. 228. So that, whether we consider the appeal as taken and perfected under 1 Comp. Laws, § 553, or under the statute of 1907, the appeal must be dismissed, unless it should be said that the right to a dismissal has been waived. There has been no waiver; for, although it appears that counsel for appellee have since August last urged counsel for the appellant to expedite the hearing of the case, they did not know, and we think were not required to learn, that a delay of nearly four months occurred because the register’s fee was not paid, and that it was finally paid after the lapse of the time for perfecting the appeal. We are of opinion that, under the statute of 1907, an appeal is not perfected until the register’s fee is paid, and as the time for perfecting an appeal is limited to one year from the filing of the decree, and cannot be extended, an appeal is not taken and perfected if the fee is not paid until after the year has elapsed. The motion to dismiss the appeal is granted, with costs. Grant, C. J., and Hooker, Moore, and McAlvay, JJ., concurred.