In its return to the writ of certiorari the commission states that the failure of plaintiff to file his appeal within the ten days fixed by the statute therefor was not raised at the hearing. It does appear that defendant was there represented by an attorney and took part in the proceedings. Such action should, I think, be said to have the same effect as the entry of a general appearance on an appeal from probate or justice's court. In Goodin v. Van Haaften, 130 Mich. 386, the defendant appealed from a judgment rendered by a justice of the peace. The appeal was not taken within the time limited therefor. Plaintiff entered a general appearance in the circuit court and served notice of trial and note of issue. She afterwards moved to dismiss the appeal because not perfected in time. The court said: *Page 413
"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."
In my opinion we should apply this rule to the appeal in question. The claim therefor was filed a few days after the time fixed by the statute had elapsed. The board, however, had the power, upon a proper showing, to then extend the time. By its appearance and participation in the hearing, and its omission to raise the question, the defendant precluded the plaintiff from asking for additional time in which to file it. It would, I think, be manifestly unfair to permit this defendant to treat the appeal as properly before the commission and take chances of a favorable decision on the merits, and, if unsuccessful, to ask a reversal in this court on the ground that the commission was without jurisdiction to hear it.
In Portage Lake, etc., Canal Co. v. Haas, 20 Mich. 326, it was said (syllabus):
"When an appeal is not taken within the time fixed by statute, and there is not provision for enlarging the time, the court has no jurisdiction to hear it." * * *
The other question presented is one of fact, and I think there was proof to warrant the finding of the commission.
The award should be affirmed.
BIRD and CLARK, JJ., concurred with SHARPE, C.J. *Page 414