GOODIN v. VAN HAAFTEN.
Appeal Bond — Waiver.
A general appearance and notice of trial in the circuit court by the appellee in a case appealed from justice's court waives the failure to file affidavit and bond within five days after judgment.
Error to Ottawa; Padgham, J.
Submitted April 8, 1902.
(Docket No. 7.)
Decided April 22, 1902.
Trespass de bonis by Rosanna Goodin against Gerrit Yan Haaften. There was a judgment for plaintiff in justice’s court, and defendant appealed to the circuit. On plaintiff’s motion the appeal was dismissed, and defendant brings error.
Reversed.
Plaintiff obtained a judgment before a justice of the peace on August 5, 1899. Defendant appealed to the circuit court, paid the costs of suit and appeal fees on August 9th, and delivered the affidavit and bond for appeal to the justice on August 23d. The law requires an appeal to be taken within five days. The return of the justice was made August 23, 1899. On August 3, 1900, plaintiff entered a general appearance in said cause in the circuit court, and served notice of trial and note of issue upon the attorney for the defendant. Afterwards plaintiff, upon leave1 granted by the court, moved to dismiss the appeal *387because the affidavit and bond were not furnished to the justice of the peace in time to perfect the appeal in accordance with the statute. The court dismissed the appeal.
Charles H. McBride (John C. Post, of counsel), for appellant.
Grant, J.
(after stating the facts). The court was in error. The general appearance and notice of trial operated as a waiver of the failure to file the bond and affidavit, within the time required by the statute, and gave the circuit court jurisdiction of the case. McCombs v. Johnson, 47 Mich. 593 (11 N. W. 400); Hamilton v. Wayne Circuit Judge, 53 Mich. 409 (18 N. W. 193); Sherwood v. Ionia Circuit Judge, 107 Mich. 136 (64 N. W. 1045).
Judgment reversed.
Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit.