¶1Where the court declina to dismiss an appeal where a party has been in default, it is a matter of indulgence, and it is only done because the party^ when his attention is called to the matter by the motion *381to dismiss, has at once filed the return. In this case, the party, instead of filing the return as soon as his attention was called to it, has taken advantage of such technical objections as were open to him to avoid a dismissal, without complying with the practice, and he is therefore not entitled to indulgence. The excuse made is vague and unsatisfactory, and cannot be accepted as sufficient. The motion to dismiss must be granted, with costs.
18 Mich. 380
Ball v. Ball
Decided May 5, 1869
Michigan Supreme Court · decided 1869-05-05
Appeal in Chancery, from Jackson Circuit. Motion to dismiss. Complainant obtained a divorce in the court below, and defendant, in October last, took an appeal. The return should have been filed before the last January term, but it was not so filed. A motion was then made to dismiss, but was not granted. The motion was renewed at the present term, but failed because the notice of the motion was one day too short.
Decided 1869-05-05