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King v Calumet and Hecla Corporation 16.05

Section 33

APPEALS, Timeliness of appeal to Appeal Board, Filing appeal by mail, Mailing not filing

CITE AS: King v Calumet & Hecla Corp, 43 Mich App 319 (1972).

Appeal pending: No

Claimant: Bruce D. King

Employer: Calumet & Hecla Corporation

Docket No: B69 671 37597

COURT OF APPEALS HOLDING: Mailing does not constitute filing of an appeal from a Referee decision; filing requires delivery to, and receipt by, the Appeal Board.

FACTS: The claimant's last day for appealing a Referee decision was May 5, 1969. The circuit court stated; "The undisputed record shows that the envelope containing the notice or claim of appeal addressed to the Appeal Board at its Detroit office was stamped and postmarked at the Post Office at Hancock, Michigan, on May 5th, 1969, and was stamped as received at the office of the Appeal Board two days later on the 7th of May, 1969."

DECISION: The claimant did not file a timely appeal from the Referee decision.

RATIONALE: "Defendant, Michigan Employment Security Commission, contends that inasmuch as 'mailing' generally has been held not to constitute 'filing', the plaintiff-claimant, on the basis of the record, must be deemed to have filed his claim of appeal on May 7, 1969. On that date, according to the record, said claim was delivered to and received by the Appeal Board. It cites, among other cases, Beebe v Morrell, 76 Mich 144 (1889); People v Madigan 223 Mich 86 (1923); and Detroit United Railway v Department of Labor and Industry, 231 Mich 539 (1925), all of which support defendant's position as herein advanced.

In Beebe v Morrell, it is stated at p 120: 'A paper is said to be filed when it is delivered to the proper officer, and by him received to be kept on file ...'"



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