Covell v. Mosely
Michigan Supreme Court
Appeal in Chancery from Kent Circuit. Motion to dismiss for want of prosecution. An appeal was taken by a portion of the defendants, and in giving directions to the clerk for making a return, he was, by mistake, ordered only to return so much of the record as embraced the matters in which those defendants were concerned.
Read the full summary
Appeal in Chancery from Kent Circuit. Motion to dismiss for want of prosecution. An appeal was taken by a portion of the defendants, and in giving directions to the clerk for making a return, he was, by mistake, ordered only to return so much of the record as embraced the matters in which those defendants were concerned. TTpon the filing of this imperfect return, notice of a motion to dismiss was made, and the parties at once, on receiving such notice, directed the clerk to make a further return, and offered to the appellee to pay the costs of the motion. This further return was made before…
1Per curiam
It has always been held by this court that unless in case of gross negligence, no appeal will be dismissed where the return is filed before the motion to dismiss is called on.
In this case, the parties being apprised of the irregularity of the return, at once took such steps as were in their power to have the mistake rectified.
They are not, therefore, in fault, and the appeal can not be dismissed on that ground.
The claim of appeal forms no necessary part of an appeal, and the filing of a bond, properly approved, is the only condition required by law. This bond is a valid bond of appeal for…
2Cited by4 opinions
- Lake Shore & Michigan Southern Railway Co. v. ChambersMichigan Supreme Court · 1891
- Elwood v. Board of SupervisorsSupreme Court of Iowa · 1912
- Harmon v. MetcalfeMichigan Supreme Court · 1903
- Farmers' Development Co. v. Rayado Land & Irrigation Co.New Mexico Supreme Court · 1913