Higgins v. Higgins

351 Mich. 214 (1958)

88 N.W.2d 292

HIGGINS v. HIGGINS.

Docket No. 22, Calendar No. 47,070.

Supreme Court of Michigan.

Decided March 4, 1958.

Rehearing denied April 14, 1958.

George F. Curran (Robert E. Childs, of counsel on application for rehearing), for plaintiff.

Edward L. Bryant, for defendant.

PER CURIAM:

This is a divorce case. Decree was entered on January 16, 1956. Calendar entries thereafter made indicate the various steps taken in the case:

*215 "1956

"Feb. 3. Petition for rehearing and notice thereon filed. * * *

"Feb. 10. Order denying the motion-petition for a rehearing with costs to the defendant signed. * * *

"Mar. 5. Claim of appeal and notice filed ($5 fee paid). * * *

"Aug. 15. Claim of appeal and notice of appeal filed ($5 fee paid). * * *

"Oct. 19. Certified copy of order of the Supreme Court dismissing plaintiff's appeal October 2, 1956, filed."

The records of this Court disclose that on October 25, 1956, appellant made application for leave to file a delayed appeal, setting up facts purporting to show merit in the appeal sought and lack of culpability of counsel. Answer opposing application was filed, denying the merits of the claimed appeal and asserting culpable negligence in appellant. This Court, on December 4, 1956, granted appellant's motion. Thereafter the following steps were taken:

"Dec. 19, 1956. Claim of appeal and notice of appeal and copy of order of Supreme Court granting leave to file delayed appeal filed ($5 fee paid). * * *

"Jan. 30, 1957. Settled case on appeal, statement of reasons and grounds for appeal signed, filed (Judge Victor J. Baum)."

The record on appeal and appellee's brief were received, respectively, in this Court on May 4, 1957 and December 6, 1957. The case was reached on the call in due course on January 8, 1958. Appellant neither responded to the call nor had appellant's brief on such date been filed with the Court.[*] The Court accordingly ruled from the Bench that the decree below was affirmed, without passing on the merits thereof, by reason of appellant's default in *216 compliance with Court Rule No 69 (1945). Grevnin v. Grevnin, 319 Mich 110.

Affirmed. Costs to appellee.

DETHMERS, C.J., and CARR, KELLY, SMITH, BLACK, EDWARDS, VOELKER, and KAVANAGH, JJ., concurred.

[*] Brief was filed in this Court on January 18, 1958.