Winegar v. Fritz

Blair, J The cross-bill sought affirmative relief against defendant Sullivan. The decree granted the relief prayed for in the original bill and dismissed the cross-bill. So far as the relief prayed for in the cross-bill was concerned, the defendant Sullivan was an opposite, or adverse party. The decree was dated October 9 and entered October 11, 1909. October 9th an order was entered on [428] motion of solicitors for Dettenthaler, without notice to any one, staying proceedings for 40 days. November 17th the appeal bond was filed, in accordance with stipulation with solicitors for complainant Winegar. November 19th order was entered on stipulation between solicitors for Winegar and Dettenthaler extending time 90 days. All of these orders were made without notice to Sullivan. The subsequent orders were on cause shown and notice to Sullivan, he appearing specially and objecting to them. Counsel for defendant Sullivan contends— “That the court or judge has no power to grant an extension of time to serve a case and perfect an appeal after the expiration of the sixty days to a party who has not served a case or obtained an extension within the sixty days.” Act No. 299, Pub. Acts 1909, was in force at the time the decree was entered. The only provisions in the act as to extending time are contained in section 3, which contains no express or implied limitation as to the time when the order may be “made except that the time may not be extended beyond one year. The 60 days provision referred to by counsel is found in the rule adopted by this court February 3, 1910,1 in pursuance of section 5 of the act. Written notice of the filing of the decree was served upon the solicitors for defendant and cross-complainant Dettenthaler on October 11, 1909. It was, therefore, impossible for appellant to comply with the rule, and the court’s authority to grant the extension must depend upon the statute. Defendant Sullivan had notice of the applications and orders subsequent to those above referred to, and had abundant opportunity to protect his rights. We think the orders were within the authority conferred upon the court by the statute. Roach v. Wayne Circuit Judge, 117 Mich. 242 (75 N. W. 465). The motion is denied. Ostrander, C. J., and Bird, Hooker, and Stone, JJ., concurred. Footnotes [1] Chancery Rule 37, 158 Mich. xxix.