OSTRANDER, J. A final decree was entered April 26, 1907, claim of appeal made June 18, 1907, the time extended 90 days from June 22, 1907, bond filed July 8, 1907, case settled April 18, 1908, and the certified transcript filed in the office of the clerk of the circuit court April 21, 1908. The register's fee was not paid until August 19, 1908, when the case was forwarded to the clerk of this court. No notice of perfecting the appeal was given to counsel for the appellee. It appears that the record is printed and the case noticed for hearing at the present October term of this court. The records, however, were not received by the clerk of this court until after the first day of the term, for which reason the cause was stricken from the docket, under the rule. Copies of the printed record were delivered to counsel for appellee on August 26, 1908, and on September 19, 1908, appellant's brief was served. A motion to dismiss the appeal was entered October 12, 1908-the reasons assigned being (1) that the transcript was not filed with the clerk of the court below immediately upon being certified by the judge; (2) that the statute fee was not paid to the register for nearly four months thereafter; (3) that no notice of perfecting the appeal was served.

The delay of three days in filing the certified case is explained, and counsel for appellee are not in position to take advantage of the failure to serve notice of perfecting the appeal. They accepted copies of the record and of the brief for the appellant, and expected the case to be heard at the present term of this court. It appears, however, that they did not know when the register's fee was paid or the transcript returned to this court until some time, the date not stated, three or four weeks before October 24th. The statute (1 Comp. Laws, §§ 551, 552) treats an appeal as perfected when the certified case is duly filed with the register of the court. And where an appeal was not perfected within the statute period, and the delay was due to default on the part of the appellant, jurisdiction of the appellate court was denied. Waterman v. Bailey,

111 Mich. 571. See City of Kalamazoo v. Power Co., 122 Mich. 489. And it was held in Bennett v. Hickey, 110 Mich. 628, and in Trombly v. Klersy, 139 Mich. 311, that failure to pay the register's fee within the time limited by 1 Comp. Laws, § 552, would require that the appeal be dismissed, in the absence of waiver on the part of the appellee.

It is now required that all appeals in chancery cases shall be taken and perfected under the provisions of Act No. 340, Pub. Acts 1907, which went into effect June 28, 1907. By its terms this act limits the time for perfecting an appeal to one year from the filing of the decree, and requires that the register's fee be paid when the settled case is filed with the register. It has been held that the requirement of this statute relative to payment of the fee is mandatory. Thompson v. McKay, 154 Mich. 228. So that, whether we consider the appeal as taken and perfected under 1 Comp. Laws, § 552, or under the statute of 1907, the appeal must be dismissed, unless it should be said that the right to a dismissal has been waived. There has been no waiver; for, although it appears that counsel for appellee have since August last urged counsel for the appellant to expedite the hearing of the case, they did not know, and we think were not required to learn, that a delay of nearly four months occurred because the register's fee was not paid, and that it was finally paid after the lapse of the time for perfecting the appeal. We are of opinion that, under the statute of 1907, an appeal is not perfected until the register's fee is paid, and as the time for perfecting an appeal is limited to one year from the filing of the decree, and cannot be extended, an appeal is not taken and perfected if the fee is not paid until after the year has elapsed.

The motion to dismiss the appeal is granted, with costs.

GRANT, C. J., and HOOKER, MOORE, and MCALVAY, JJ., concurred.

STABLER v. CLARK.

PLEADINGS

-SUFFICIENCY

1. APPEAL AND ERROR - REVIEW AMENDMENT. On appeal from a decree granting foreclosure of a mortgage, an objection to the consideration of evidence tending to show a payment, on the ground of lack of affirmative averments in the answer, is not sustained, where the answer, fairly interpreted, raises the issue, the case was tried on the merits, permission was asked to amend the answer, and there is nothing indicating that the court below would have refused permission to amend if defendants' contention had been sustained.

2. EVIDENCE BOOK ENTRIES SELF-SERVING DECLARATIONS HEARSAY.

On a bill to foreclose a mortgage, the answer claiming payment, entries in a diary kept by defendant wife, reciting a payment claimed to have been made by defendant husband, as to which the wife had no knowledge except as informed by her husband, the entries not being relied upon to refresh recollection, are not admissible.

3. APPEAL AND ERROR-EVIDENCE- CONSIDERATION CHANCERY CASE-INADMISSIBLE EVIDENCE.

On appeal from a decree granting foreclosure of a mortgage over defendants' claim of payment, an objection that the court did not give full weight to evidence presented in the form of entries in a diary kept by defendant wife, is untenable, the entries not being admissible.

4. SAME-REVIEW-QUESTION OF FACT-CONCLUSIVENESS OF FIND

ING.

A decree granting foreclosure of a mortgage notwithstanding defendants' claim of payment, the evidence being in sharp conflict, and the case being one in which the manner of the witnesses is likely to aid the court in arriving at a correct conclusion, is affirmed, the court not being able by any fair analysis of the evidence to reach a conclusion other than the one reached below.

Appeal from Ingham; Wiest, J. Submitted November 9, 1908. (Docket No. 123.) Decided November 30, 1908.

Bill by Charles F. Stabler against Andrew C. Clark and Gertrude Clark for the foreclosure of a mortgage. Defendants filed an answer in the nature of a cross-bill praying for a discharge of said mortgage. From a decree for complainant, defendants appeal. Affirmed.

Charles F. Hammond (Rollin H. Person, of counsel), for complainant.

L. B. Gardner, for defendants.

OSTRANDER, J. The bill of complaint, filed to foreclose a real estate mortgage, sets out, and the, answer of defendants admits, the execution, date, amount, and terms of the note and mortgage. There is in the bill an averment of the amount due and unpaid. The answer denies that this sum is unpaid, and asserts that there is unpaid a much smaller sum. And in the cross-bill of defendants it is affirmatively asserted that at the time of filing the bill there was only the smaller sum unpaid, which sum defendants had tendered and had demanded a discharge of the mortgage. At the hearing it was objected to the introduction of evidence of a payment claimed to have been made by defendants that there was lack of affirmative averments of payments in the answer. Like objections are urged in this court. The cause was heard upon the merits, and, at the conclusion of the hearing, counsel for defendants asked permission to amend the answer. The decision was upon the merits. We think the answer, fairly interpreted, avers that the amount of the note and mortgage had been reduced by payments or by a payment, and, while it would have been more correct pleading to set up the facts in detail, it is clear there was and could have been no surprise and no doubt concerning the real issue. There is nothing indicating that the court below would have refused permission to amend if defendants' contention had been sustained.

Defendants claimed that on March 5, 1902, they paid $300 on the mortgage debt. Whether they did this is

the sole question involved. The trial court was not convinced that the payment was made. It is not claimed on the part of appellants that any improper or incompetent testimony was received. It is claimed that it is apparent from the opinion delivered by the court that certain evidence was not rightly valued. Defendant Andrew C. Clark testified that on March 5, 1902, he paid $300 to the wife of complainant at her house in the absence of complainant. She positively denies that such a payment was made to her then or at any other time. Complainant denies that he ever received the money from defendants or from his wife. Defendant has fairly established the fact that he had more than $300, received from a sale of cattle made on the day named to a man named Horne, and he says it was upon his return from the city with the money that he stopped at the house of the complainant; his wife holding the horse while he went into the house and made the payment. He took no receipt, and did not demand to see the indorsement of the payment upon the note or mortgage. With this sharp and irreconcilable conflict of testimony, defendants produced a book containing various entries made by Mrs. Clark, among which are the following: Under date March 5, 1902, is the entry: "Sold 9 head of cattle. Went to L. Lovely day." This in a portion of the volume used as a diary of daily events; each line of the pages being numbered consecutively to correspond with the days of the months. On another page, headed, "Sales Account," is the entry as of March 5, 1902: "Young cattle 9 head, Horne. Weight 8135. Amount $325.40." On still another page, under the heading "Cash Paid Out," is the entry: "March 5, cash paid on mortgage 300." These entries, having been called to the attention of the witness Andrew C. Clark, were read into the record, the only objection made being "the formal objection," and later the book itself was offered and received in evidence without objection. The weight of this evidence is supposed to have been disregarded by the court, the opinion declaring that—