Commercial National Bank v. Gaukler

Brooke, J.

This case is pending in this court on appeal from a decree of foreclosure. That decree was entered in the Wayne circuit court December 11, 1909. Defendant perfected her appeal and gave notice thereof March 31,1910, but gave no bond to supersede the decree. After the time allowed for payment by the terms of the decree had expired, the mortgaged premises were sold on July 15, 1910, and bid in by complainant. On August 3, 1910, defendant filed exceptions to the report of sale in the circuit court, which exceptions are still undisposed of.

Appellant now moves this court for leave to file a bond nunc pro tunc as of January 3, 1910. Many reasons are urged by appellant why this relief should be granted. She shows by affidavit that the mortgaged premises are worth about three times the amount of the incumbrance, and that for this reason she did not believe complainant would proceed to sale pending the appeal. She also shows that she desires to redeem from the mortgage, by the payment of such sum as this court may hold to be legal, just, and equitable. She further avers that her appeal was noticed for hearing at the October term, 1910, of this court, and that it could not be heard at that term by reason of the failure of complainant’s solicitors to file their brief in due season.

The statute (section 4, Act No. 299, Public Acts 1909) provides:

“No appeal shall operate to stay proceedings in said cause unless the party taking such appeal shall, within the time allowed for perfecting such appeal, file with the register of said court, a bond to the appellee or appellees, with sufficient surety or sureties to be approved by the circuit judge or a circuit court commissioner of said county, or a justice of the Supreme Court, and with such penalty as such judge or commissioner shall approve, conditioned for the performance or satisfaction of the decree or final order of the Supreme Court in the cause, and payment of all costs of the appellee, or appellees in the matter of the appeal. * * * Provided, further, that the Supreme Court or any justice thereof may, on special motion and proper showing, after such appeal has been perfected, order an additional bond and fix the penalty thereof and approve the sureties thereto.”

This proviso, under the authority of Coeling v. Barnard, 159 Mich. 634 (124 N. W. 533), is broad enough to. warrant the granting of the 'relief asked, if, in the opinion of the court, a proper showing were made. While there may be doubt as to the sufficiency of the showing, we are of opinion that the relief should be granted, if it can be done without injury to the .rights of the appellee.

On behalf of appellee it is shown that the value of the property covered by the mortgage is barely equal to the amount of the lien, and that to defer appellee’s right of possession by permitting the appellant to file a nominal bond would, in all probability, result in loss to the appellee. Appellant will be permitted to file a bond in this court in the penal sum of $5,000, with two sureties to be approved by the clerk of this court, conditioned for the performance or satisfaction of the decree or final order of this court in the cause, and the payment of all costs of the appellee. Upon the filing and approval of said bond, an order will be entered in this court staying all proceedings in the cause until final determination thereof.

Bird, C. J., and Ostrander, Blair, and Stone, JJ., concurred. ‘ •