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110 Mich. 628

Bennett v. Hickey

Michigan Supreme Court

Decided October 20, 1896

Michigan Supreme Court · decided 1896-10-20

Bill by William C. Bennett against Edward J. Hickey and others to rescind a land contract, and for other relief. There was a decree for defendants, and complainant appealed.

Key passage — most relied on by later courts

““We think, however, that this motion should be denied upon the ground that the right to insist upon the waiver of appeal had in turn been waived by counsel for the appellees, for the reason that counsel did not assert his intention to rely upon the statutory waiver when informed by counsel for appellant that he intended to make the return at once, and that he should not be inconvenienced by the delay, when counsel for the appellees told him that the return had not been made within the time prescribed by statute.””

quoted by 1 later decision, including Misner v. Stange

Relies on Merriman v. Peck

Good law ✅— No negative treatment on recordhow we know

On motion to dismiss · Decided 1896-10-20

How this case has been cited

Cited by 7 later decisions — most recently April 1946

7 state decisions

30189619001910192019301940decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

Per Curiam.

¶1The decree being duly entered in the above cause, the claim of appeal was filed July 30th, and the bond was filed July 6th, and approved by the circuit judge on August 6th. This motion to dismiss was made September 19th, upon the ground that the fees were not paid to the register within 30 days after the appeal was perfected; the same having been paid on September 8th.

¶2Sections 6739, 6740, 2 How. Stat., contain the provisions of the law relative to appeals. The following provision relating to the payment of fees was ingrafted upon section 6740 by Act No. 62 of the Laws of 1871:

“ And if an appellant shall neglect to pay to such register the fee for making such return for 30 days after such appeal has been perfected, he shall be deemed to have waived his appeal, and the appellee may at once proceed to enforce his decree, the same as if no appeal had been taken.”

¶3This section was involved in the case of Barnes v. Munro (decided at the October, 1892, term of this court). In that case the appeal was perfected in due season, but the fees were not paid within the time required, and execution issued, which counsel sought to have vacated, and return made. The motion was denied, the appeal being treated as waived. A similar provision, relating to probate appeals, was passed upon in the case of Merriman v. Jackson Circuit Judge, 95 Mich. 279, where it was held that jurisdiction was lost by reason of a failure to seasonably file the record. In that case the statute before us was discussed, together with the decisions relied upon to sustain the proposition that the provision was directory, and we then thought that this statute *630afforded no support to the claim that the statute involved in that case was not mandatory. The case of Barnes v. Munro was not mentioned, being unreported.1

¶4We think, however, that this motion should be denied upon the ground that the right to insist upon the waiver of appeal had in turn been waived by counsel for the appellees, for the reason that counsel did not assert his intention to rely upon the statutory waiver when informed by counsel for appellant that he intended to make the return at once, and that he should not be inconvenienced by the delay, when counsel for the appellees told him that the return had not been made within the time prescribed by statute.

¶5The motion is denied.

¶6No opinion filed.

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