Error to Wayne; Hosmer, J. Submitted January 17, 1918. (Docket No. 117.) Decided March 28, 1918.

Assumpsit in justice's court by the J. F. Hartz Company against S. J. Lukaszcewski for goods sold and delivered. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for defendant. Plaintiff brings error. Dismissed.

Frederic T. Harward, for appellant.

L. A. Koscinski (Charles Bowles, of counsel), for appellee.

STEERE, J. Plaintiff brought this action in a justice's court of the city of Detroit to recover a claimed balance due upon a running account extending from November 6, 1909, to February 28, 1912, declaring orally upon the common counts in assumpsit and claiming $500 or under.

Defendant orally pleaded the general issue with special notice of set-off and recoupment. Each furnished a bill of particulars. Plaintiff's comprised a lengthy account for medicines, drugs, surgical instruments, etc., sold to defendant during the period mentioned, with credits for numerous payments thereon from time to time; while defendant's bill of particulars of his claimed set-off was composed of 14 items of "goods returned and not credited," the total stated amount for credits claimed slightly exceeding the balance shown by plaintiff's bill to be yet due on the account. The principal matter in controversy was an X-Ray machine and its accessories which plaintiff claimed defendant bought, but which he claimed was taken on approval and subsequently returned. The primary and controlling issue between the parties was one of fact.

In justice's court plaintiff recovered a judgment for

$500 and defendant removed the case by appeal to the Wayne circuit court, where re-trial by jury resulted in a verdict and judgment of "no cause of action." The judgment was entered by the circuit court of Wayne county on January 29, 1917. On October 17, 1917, following familiar practice under former statutory authority, plaintiff's counsel obtained as a matter of right, and of course, issuance of a writ of error without any application to this court therefor. A bill of exceptions with assignment of errors attached was thereafter settled and the case proceeded without objection of opposing counsel to a hearing in this court upon briefs and record.

Jurisdiction cannot be conferred by consent or inadvertence. By Act No. 172, Pub. Acts 1917, which went into effect in August, 1917, section 1 of chapter 50 of the judicature act (section 13736, 3 Comp. Laws 1915), is amended to read as follows:

"Writs of error, upon any final judgment or determination, where the judgment exceeds in amount five hundred dollars, may issue of course, out of the Supreme Court, in vacation as well as in term, and shall be returnable to the same court; and in all other cases such writ may issue in the discretion of the Supreme Court upon proper application."

Although judgment was rendered before the amendment was passed, appellate proceedings had not been instituted in this court before it went into effect. Its restrictions were therefore in force and applicable, for the reason that the previous statutory right of review in such cases was but a mere privilege not amounting to a vested right beyond legislative control. Puffer v. Kennedy, 49 Kan. 59; Skoin v. Limerick, 50 Kan. 465; Kendall v. Spradling, 54 Ky. 33; M'Gruder v. Lyons, 48 Va. 233; Yznaga del Valle v. Harrison, 93 U. S. 233.

In Skoin v. Limerick, supra, it appeared from the record that judgment was rendered by the trial court

on January 30, 1889, for review of which the petition in error and case-made were filed in the appellate court on January 13, 1890. On March 20, 1889, an act of the legislature limiting appellate jurisdiction to sums exceeding the amount of the judgment took effect. No question of jurisdiction was raised by either party. It was there said:

"We think, however, it is the duty of this court on its own motion, where the question is not otherwise raised, to raise the question itself, and to consider the same."

The case was thereupon dismissed under previous decisions referred to.

Not only is the subject matter of the action limited in amount to $500 by the ad damnum clause in plaintiff's declaration and the jurisdiction of the court in which suit was begun, but specifically and palpably it is not a case "where the judgment exceeds in amount five hundred dollars," which is the test now prescribed by statute for a writ of error as a writ of right on final judgment in the trial court.

That no right of appeal exists in this State except as conferred by statute, is well settled. Harvey v. Pealer, 63 Mich. 573; Sullivan v. Haug, 82 Mich. 548; Messenger v. Teagan, 106 Mich. 654. Public policy enters into consideration of the question (Smart v. Howe, 3 Mich. 590), and it is within the power of the legislature to determine to what extent that right shall exist and under what restrictions. In Sullivan v. Haug, supra, which discusses the subject at length, it is said:

"The right to an appeal is and always has been statutory, and does not exist at common law. It is a remedy which the legislature may, in its discretion, grant or take away, and it may prescribe in what cases, and under what circumstances, and from what courts, appeals may be taken; and unless the statute expressly or by plain implication provides for an ap

peal from a judgment of a court of inferior jurisdiction, none can be taken."

The case is therefore dismissed from this court, without costs to either party.

OSTRANDER, C. J., and BIRD, MOORE, BROOKE, FELLOWS, STONE, and KUHN, JJ., concurred.

BOLTON v. CUMMINGS.

1. APPEAL AND ERROR-STATUTORY RIGHT OF APPEAL-LIMITATION -JURISDICTION.

The right of appeal is statutory, and unless taken within the time fixed by the statute the appellate court does not acquire jurisdiction.

2. SAME JURISDICTION-WAIVER-CONSENT.

Jurisdiction is not acquired by waiver or consent.

3. SAME DISMISSAL.

Where a writ of error was not taken out until after the expiration of a year from the rendition of judgment, and no motion for extension of time was made, and no extension was granted by the Supreme Court or by any of the Justices thereof, the Supreme Court should, of its own motion dismiss the case for want of jurisdiction. 3 Comp. Laws 1915, § 13741.

Error to Kent; Lamb, J., presiding. Submitted January 30, 1918. (Docket No. 106.) Decided March 27, 1918.

Case in justice's court by George W. Bolton against Harwood Cummings for trespass. From a judgment for plaintiff, defendant appealed to the circuit court.

Judgment for defendant. Plaintiff brings error. Dismissed.

Thompson & Temple, for appellant.

Hatch, McAllister & Raymond, for appellee.

PER CURIAM. A judgment for the defendant was entered in this case June 21, 1916, in the Kent circuit court. August 9, 1917, the writ of error was issued. No motion for an extension of time to take out such writ was made, and no extension of time was granted by this court, or by any of the Justices thereof. The year in which a writ of error might issue without such extension had expired. No motion to dismiss the writ has been filed, and appellee files a brief on the merits. The right of appeal is statutory; unless taken within the time fixed by the statute the appellate court does not acquire jurisdiction; jurisdiction is not acquired by waiver or consent. Section 13741, 3 Comp. Laws 1915; Riley v. Railway, 163 Mich. 327. This court should, of its own motion, dismiss a case which the record discloses it has not the jurisdiction to hear and determine. J. F. Hartz Co. v. Lukaszcewski, ante, 230.

The writ of error will be dismissed.