Anderson v. Wartenberg

Brooke, J. '{after stating the facts). The applicable law relative to appeals from justices’ courts of the city of Detroit follows: “Third. Appeals may be authorized by the circuit court of the county of Wayne, when the party making the appeal has been prevented from making a defense upon the merits of the case in which such appeal is taken by circumstances not under his control; and such appeal may also be authorized when justice requires that such appeal should be authorized, and in all cases where the parties against whom such appeal is sought has appeared in said justices’ courts by an attorney or agent, it will be sufficient to serve such attorney or agent with the notices of all subsequent proceedings in such case and all orders made therein by said circuit court may be served on said attorney or agent, and such service shall have the same effect as though made on the party against whom such appeal is taken. “Fourth. Under absolutely no circumstances shall any appeal be allowed or authorized after five days from the rendition of judgment, except as herein otherwise provided.” Section 22 of Act No. 475, Local Acts 1903. The general statute covering appeals from justices’ courts will be found in chapter 78, § 8, of Act No. 314, Pub. Acts 1915 (3 Comp. Laws 1915, § 14408), as follows: “Appeals may be authorized by the circuit court, or [537] by the circuit judge 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.” This is but a re-enactment of section 909, 1 Comp. Laws 1897. We are of opinion that the provision for appeals in the general act of 1915 did not supersede the provisions of the local act of 1903 which applied to the city of Detroit only, and that the propriety of the order here questioned must be determined by a consideration of the provisions of the local act. That act has been before this court for consideration several times. Goldhamer v. Wayne Circuit Judge, 107 Mich. 259 (65 N. W. 97); Stock v. Wayne Circuit Judge, 143 Mich. 339 (106 N. W. 897); Huddleston v. Amos & Co., 180 Mich. 253 (146 N. W. 658). From these decisions it is apparent that the circuit court is not clothed with discretionary power with respect to granting dilatory appeals, and that no appeal may be allowed after five days unless the showing required by section 8, chap. 78, of Act No. 314, is made. This brings us to a consideration of the petition filed by the defendant for leave to perfect a delayed appeal. In said petition defendant sets out the fact that he received the letter of April 25, 1916, written by McPherson, Dunn & Mann, that he turned the same over to his attorney, Mr. Snow, for attention, that he was never served with any summons or other paper notifying him of the commencement of suit against him by the plaintiff, and that it was not until the 17th of July, 1916, that he was informed by his attorney that a judgment had been taken against him, and further: “Petitioner further represents that ‘he did not know of said judgment or in what court same was obtained or the return day of the case until after the expiration of five days from the date of said judgment, and that he never had an opportunity to defend same [538] or appear in said cause and court, and that the statutes of this State were not complied with in making service, as no service of any paper was made upon him, and that such judgment is void and of no force and effect.” This application was supported by his own affidavit setting out the correspondence of Mr. Snow with McPherson, Dunn & Mann and with Margaret Marsh, as well as the reply of Mr. Emmons to the Marsh letter. The application was accompanied by no affidavit of merits. The only question for determination is whether the Showing made by the defendant was such as to warrant, the court in granting leave to perfect a delayed appeal upon the ground that the defendant had been prevented from making a defense upon the merits of the case or had been prevented from taking an appeal within.. five days from the entry of judgment by circumstances not under his control. We feel constrained ■to say that the showing made by the defendant was insufficient under the authorities. Through his counsel, he claims to have been deceived both by the action and the nonaction of the plaintiff’s attorneys. Their action in writing the letter of April 25th induced him to believe that the matter was open for adjustment, and their nonaction in replying to Mr. Snow’s letters led him to believe that the case was being continued for the purpose of considering his offer of adjustment. We are of opinion that a just conception of professional courtesy would have impelled plaintiff’s attorneys to promptly reply to Mr. Snow’s letters. We are unable to reach the conclusion that their failure to reply was an excuse for defendant’s inaction. Indeed, that very failure should have been accepted by the defendant as a warning. All the circumstances surrounding the transaction were such as to put the defendant upon notice. He had had [539] a difference on April 19th with the plaintiff upon the subject of her commission, and he held an uncertified check of Margaret Marsh’s for $146.09 upon which payment was immediately stopped. This fact alone was sufficient to put plaintiff upon inquiry, yet he held that check from April 19th to June 26th, upwards of two months, before making inquiries from the drawer of the check. He had notice on April 25th of the commencement of suit and the institution of garnishment proceedings. Final judgment in the attachment case was not rendered until June 10, 1916, some 40 days later. No legal duty rested upon plaintiff’s attorneys to notify defendant of the institution of said proceedings. They appear to have proceeded in strict accordance with the statute providing for attachment proceedings. That the defendant chose to rely upon what he considered to be negotiations for an adjustment with plaintiff’s attorneys, rather than to protect his rights through an appearance and defense in the case or an appeal within five days after judgment, is unfortunate, but in our opinion insufficient, under the authorities cited, to warrant granting a delayed appeal. The judgment will be reversed, and the order granting the special appeal will be vacated and set aside. Kuhn, C. J., and Stone, Ostrander, Bird, Moore, Steere, and Fellows, JJ., concurred.