Opinion
Submitted December 1, 1925. (Calendar No. 32,084.)
Writ dismissed December 22, 1925.
Mandamus by Gordon M. Smith to compel Guy E. Smith, circuit judge of Gladwin county, to vacate an order allowing an extension of time to settle a bill of exceptions. Submitted December 1, 1925. (Calendar No. 32,084.) Writ dismissed December 22, 1925.
John C. Shaffer, for plaintiff.
Kinnane Leibrand, for defendant.
On March 31, 1925, a judgment was rendered in the circuit court for the county of Gladwin, dismissing an appeal taken by Merton H. Wright, administrator de bonis non, from an order of the probate court allowing the final account of plaintiff as executor under the will of Deram Mills, deceased. The attorney for the administrator resides in Bay City. He ordered a transcript of the testimony, and requested the stenographer to file his certificate to that effect. A few days later, he called the county clerk on the telephone, and was informed by him that the certificate had been filed and an order entered extending the time to settle a bill of exceptions. On April 22d, some days later, and after the 20 days had expired, the clerk advised him by letter that the order had not been entered, and stated that he had got "this case mixed" with another in which the same attorney was acting, and in which such an order had been made. He then on motion asked for an order extending the time to settle a bill of exceptions, and, after a hearing disclosing the facts as above stated, the circuit judge granted the order. On the petition of the plaintiff, an order to show cause why this order should not be vacated was granted. The return of the defendant is now before us.
Counsel for plaintiff relies on the holding in Walker v. Wayne Circuit Judge, 226 Mich. 393, and the many cases in which the rule there stated has been followed, one of the last being Patrons' Mut. Fire Ins. Co. v. Wexford Circuit Judge, 228 Mich. 177. It was held in the Walker Case that, if an order extending the time be not obtained within 20 days after the entry of judgment, the court loses jurisdiction "to grant an extension or to settle a bill of exceptions."
Defendant's counsel concede the rule to be as stated, but contend that it is inapplicable where the omission to obtain the order is due to a reliance on the statement of the clerk of the court that such an order had been entered.
In Bishop v. Judge of Recorder's Court, 207 Mich. 537, 544, it was said:
"The cases cited for defendant in support of the contention that the appellate court may, and this court does, in its discretion assume jurisdiction on a meritorious application to appeal after expiration of the statutory time therefor, do not imply or purport to be authorized by any inherent discretionary power to that end. Those decisions are based upon the not unusual nor unreasonable legal proposition that the prescribed time in which a litigant is authorized to act does not in contemplation of law run against the party without fault or want of diligence on his part during such time as his power to act is suspended, or his efforts to do that which the law authorizes and requires him to do are blocked, by some act or non-action of the court itself or its officers entirely beyond his control."
This but followed the holding in Waterman v. Bailey, 111 Mich. 571, 574, where the earlier cases were cited. It is applicable to proceedings in the lower court to settle bills of exceptions, as well as those necessary to perfect chancery appeals. In re Ganea's Estate, 227 Mich. 11.
As soon as the certificate of the stenographer is filed, the party desiring to review the judgment is entitled to an order extending the time (not exceeding 60 days) to settle the bill of exceptions. 3 Comp. Laws 1915, § 12634; Circuit Court Rule No. 66. The trial judge may make such order without notice to the other party. He might have done so as soon as he was advised by the clerk that the certificate was filed. The clerk has charge of the records and files of the court. When he stated to plaintiff's attorney that such an order had been entered, the attorney had the right to assume that he did so after an examination of the records and files. Counsel for the administrator insists that the effect of such statement was the same as if he had made the inquiry of the circuit judge and had been informed that he had made such an order. The information received by the attorney from the clerk, and on which he had a right to rely, suspended the running of the time against him until he was advised that it was erroneous, and during this time the court did not lose jurisdiction to make the order complained of. In so holding, we are not overruling the decision in the Patrons' Mutual Case, supra. In that case it appeared by the return of the circuit judge that the attorney who assisted defendant's counsel in the trial of the cause, and who ordered the transcript of the testimony, well knew the date when the judgment was entered.
The order to show cause is dismissed, with costs to defendant.
McDONALD, C.J., and CLARK, BIRD, MOORE, STEERE, FELLOWS, and WIEST, JJ., concurred.