Opinion
Submitted June 7, 1932. (Calendar No. 36,537.)
Decided September 16, 1932.
Appeal from Macomb; Reid (Neil E.), J. Submitted June 7, 1932. (Calendar No. 36,537.) Decided September 16, 1932.
Action by Walter Trask, as special administrator, against Olle Norell. From order dismissing appeal, plaintiff appeals. Reversed, and appeal reinstated.
Harry J. Lippman, for plaintiff.
This is appeal (mandamus) to set aside an order dismissing an appeal for failure of appellant to prepay or secure payment of the court stenographer's fees for transcript of testimony demanded in the notice of appeal.
The notice of appeal, when served on the stenographer, constitutes an order to him for transcript of testimony specified in it. Court Rule No. 64, § 1. It is his duty to furnish the transcript unless, within 10 days after receiving such order, he files and serves on appellant demand for prepayment or security for his charges. If he so makes demand and the appellant does not comply within 10 days, the circuit court may dismiss the appeal. Court Rule No. 64, § 4.
Except as expressly provided in the rule, the circuit court has no jurisdiction to dismiss an appeal to the Supreme Court. Hoffman v. Security Trust Co., 256 Mich. 383.
The rule admits of no equivocation, as to form of demand or time of proceeding. It does not constitute the court a general collecting agency. Unless its terms are strictly followed, the circuit court has no jurisdiction to dismiss.
The notice of appeal was served May 28th. No demand for charges was filed by the stenographer until June 12th. We need not consider the objections to the form of demand made on counsel for appellant nor to the form of filing. That the demand was not filed in time was sufficient to prevent vesting in the circuit court of jurisdiction to dismiss.
The order will be set aside, and the appeal reinstated, with costs to appellant.
CLARK, C.J., and McDONALD, SHARPE, NORTH, WIEST, and BUTZEL, JJ., concurred with FEAD, J. POTTER, J., concurred in the result.