
    ANDERSON v. WAYNE CIRCUIT JUDGE.
    Courts — Appeal prom Common Pleas Court — Premature Notice op Appeal.
    Notice of appeal from judgment in common pleas court of Detroit, given four days before return on appeal was filed in office of county clerk, was premature, and therefore insufficient under Circuit Court Rule No. 11, and appeal should be dismissed.
    Mandamus by Billie Anderson to compel Arthur Webster, Wayne circuit judge, to vacate- an order denying motion to dismiss an appeal from the common pleas court of Detroit.
    Submitted May 13, 1930.
    (Calendar No. 34,785.)
    Writ granted June 2, 1930.
    
      DeLancey G. Haven, for plaintiff.
    
      Stevenson, Butsel, Eaman & Long (Chas. F. He-mans, of counsel), for defendant.
   Clark, J.

Plaintiff Anderson, in the common pleas court of Detroit, recovered judgment for $100 and costs against Carl Hoffrichter and Mills Baking Company, a corporation, defendants. Defendants appealed, but their notice of appeal under Circuit Court Rule No. 11, as amended, was given four days before the return on appeal was filed in the office of the county clerk. In the circuit court, on the ground that the notice of appeal was insufficient, plaintiff moved to dismiss. Denial of the motion is reviewed here on mandamus.

The case is ruled by Livingston v. Saginaw Circuit Judge, 247 Mich. 578, where a notice given prematurely, as here, was held not to be a substantial compliance with the rule. It is urged that the cited case may be distinguished because it involved notice of retainer instead of notice of appeal. The decision is not upon form or substance ,of notice, but that notice was premature, and therefore ineffectual under the rule. The motion should have been granted, and to that end the writ, if necessary, will issue. Costs to plaintiff.

Wiest, C. J., and Butzel, McDonald, Potter, Sharpe, North, and Fead, JJ., concurred.  