text:
    F. S. Andrews v. Joseph W. Donovan, Circuit Judge of Wayne County.
    Estates ofdeceasedpersons — Appeal by CREDITOR FROM DISALLOWANCE OF CLAIM —Permitting creditors whose claims HAVE BEEN ALLOWED TO APPEAR BY ATTORNEY AND DEFEND THE APPEAL.
    Relator applied for mandamus to com-pol the respondent to vacate an order allowing creditors whose claims had been allowed against the estate of a deceased person to appear by attorney and defend against the appeal of another creditor from the disallowance of his claim. An order to show cause was granted, a hearing had on petition and answer, and on November 20, 1896, the application was denied.

      Henry M. Cheever, for relator, contended:
    1. That the order of the respondent was improper, and should be vacated because:
    d — The petition prayed that the attorney for Appleton and Iier might appear solely for the administrator, or in conjunction with the counsel for the administrator, whereas the order allows said parties, by James H. Brewster, “to enter their appearance in this cause as parties thereto;” that this introduces a third party into the trial of this issue, and one Who is not legally interested therein or in the result.
    ft — That the practice and the Statutes of this State do not. recognize any, such right to appear even in conjunction with the attorney for the administrator; that the administrator is a sworn officer, and it is not to be presumed that he will not contest the claim of the appellant to its fullest extent; that the only possible interest the other creditors can have in the allowance or disallowance of this claim would be in the fact that if it were allowed they would not receive as large a pro rata on their claims; that if the estate were worth $10,000, the application would not-have been made, as the result would not have been material; that this shows conclusively that the motive is a mercenary and not a legal one.
    c — That How. Stat. § 5910, provides that the appellant shall give notice to the administrator, and this is under the order of the probate court, but there is no provision for giving notice to the other creditors, or their attorneys.
    d--That the action of counsel for the creditors whose claims have been allowed could not be disinterested; that he would be interested in defeating the appellant’s claim simply for the reason that by so doing his clients would secure a larger portion of their claims than otherwise.

      e — That the only cases where any one but the administrator can appear and manage the trial of an appeal from the decision of the commissioners are, first, where the administrator declines to appeal from a decision adverse to the estate; citihg How. Stat. § 5916; Crouch v. Circuit Judge, 52 Mich. 596; King v. Oridley, 69 Id. 89; and, second; when the administrator has a claim in Ms ' own right against the estate which is disallowed by the commissioners, and he takes an appeal, in which case notice of the appeal must be given to all concerned, which would, of course, include creditors; citing How. Stat. § 5917; that How. Stat§ 5852, authorizes a special administrator to commence and maintain suits as an administrator; that the same rule applies to general administrators; that they represent the estate, and it is for them to commence and maintain or defend suits, and no other parties have a right to interfere.

      / — That said Appleton and Iler cannot in any sense he considered parties to this appeal; citing Comstock v. Vance, -95 Mich. 48; that they assume none of the responsibility for its prosecution, and yet they have been allowed to come in, and, to a certain extent, control the proceedings.

      g — That said Appleton and Iler. could not have appealed from the decision of the commissioners; that no one can appeal from any probate decree who is not aggrieved;.that it has been held that no one is aggrieved except where the decree operates upon his right of property or bears directly upon his interest; citing Besancon v, Brpwnson, 39 Mich. 388; Laban• v. Nichols, 23 Id. 310.

      J. II Brewster, for respondent, contended:
    .1. That it is difficult, to see how relator is in anywise likely to be injured by the appearance of Appleton and Iler, who are admitted to be those chiefly interested in the estate; that it would seem that where the nominal party, the administrator, has neglected to cross-examine an important witness for the relator that those who'are the' real parties should be allowed to do so, and to present such evidence as they may have tending to show the' invalidity of his claim, he being a brother of the deceased; that to the contention that such a proceeding is novel, it may be replied that the precise circumstances of this ease are also novel.
    2. That proceedings in probate courts against estates are analogous to proceedings in rem; that the estate is the thing; that the Minnesota statutes relating to proceedings before commissioner on claims are almost, if not quite, the same as our own, citing, as to the construction of said statutes, State v. Probate Court, 25 Minn. 22.
    3. That if the relations between the relator and the administrator, who was the attorney of record' for the decedent in the case in which Appleton obtained his judgment, were not so friendly as they are; if the administrator had cross-examined the ehief witness for relator, who is the mother of the decedent; if the attorney, who earnestly contended against Appleton’s claim in the circuit court, did not represent relator; if the adjudged creditors’ claims did not equal the whole estate, while relator’s claim, which has been disallowed, did not equal three times the estate, then creditors, in justice to whom respondent, thought he ought to make the order complained of, might not have the same grounds for their motion, and they certainly could not urge as strong reasons in its support.
   The facts as established by the petition and answer were:

a — That Nanhie H. Clark died intestate in the state of Ohio in 1895; that administration of her estate in Michigan was committed by the probate court of Wayne county to William IT. MeCorkle, who qualified and entered upon the discharge of the duties of said office.

b — That commissioners on claims were appointed; that it appeared upon the argument of the motion for leave to appear that Ambrose Appleton was a judgment creditor, having obtainod a judgment in the Wayne circuit court in a suit commenced during the life time of the said Nannie H. Clark, and revived against the administrator of her estate, for $662.13, including costs of suit, which judgment was certified to the probate court under the statute; that the total amount of claims allowed against the estate was $474.50; that tho commissioners on claims were allowed by the probate court $100, making, with said judgment, an aggregate of $1,236.63, instead of $1,015.78 as alleged in relator’s petition; that the latter sum represents the amount of claims adjudged against the estate in favor of creditors represented by James H. Brewster, a Detroit attorney, before said commissioners, and who now represents said claimants.

e — That relator is a brother .of the decedent; that the witness whose deposition was taken in support of his claim is the mother of the deeedent; that there was no evidence before respondent that relator’s claim was disallowed by the commissioners upon technical grounds, nor as to the reason for its disallowance.

d — That the total amount of the estate, as shown by the inventory, and as near as can be estimated, is $1,400, part of it consisting of stock in the Detroit Has Company.

e — That the report of the commissioners on claims was dated June 20, 1896; that the return to relator’s appeal was. made and the cause entered in the circuit court August 24,1896; that on the last named day tlie petition of Henry M. Cheever for a commission to take the testimony of one M. E. Synnestoedt, the mother of relator and of the decedent, was presented to respondent; that he in-. dorsed thereon an order that said commission issue; that respondent has no information whether or not there was a stipulation between said Cheever and the administrator as to the taking of said testimony as stated in relator’s petition, except that no such stipulation appears in the files in said cause in the circuit eourt, nor is there any calendar entry of the filing of the same; that it was stated in the petition for the commission that the administrator understood fully the situation and circumstances,-and assented to the taking of the testimony of said witness as proposed by deposition or commission; that said commission was issued; that the deposition of said witness was taken at Cincinnati, Ohio, where she resided, on August 26, 1896, and on the following day said deposition was filed in the cau.se; that no cross interrogatories were submitted to said witness on behalf of the estate, nor was she 'orally cross-examined on its behalf.

/ — That on August 27, 1896, Ambrose Appleton, the said judgment creditor, and John C. Her, a creditor whose, claim had been allowed by said commissioners, by James H. Brewster, their attorney, moved the court that they be allowed to appear by attorney in said cause; that the said commission be recalled, and a new one issued upon due notice to petitioner’s attorney, upon the grounds that they were creditors of said decedent with’ adjudged claims against her estate amounting to more than three-fourths of its value, and were the parties chiefly interested in disputing the claim of relator against said estate; that they were entitled to be represented upon the hearingof relator's appeal' by their own attorney; that the administrator was merely a nominal party, while creditors were the real parties.

[In the petition filed by Ambrose Appleton as the basis for said motion it was alleged that William F. McCorkle was the attorney for decedent in the suit brought against her by the petitioner; that on the trial of said cause he was represented by Henry M. Cheever, who earnestly contest-en petitioner’s claim as plaintiff in that case; that relator was represented before the commissioners on claims by said Henry M. Cheever, who represents him on his appeal; that the relations existing between relator and said administrator are naturally friendly; that they have thus far done what they could to defeat petitioner’s claim; that if relator’s claim is allowed the petitioner and other creditprs wiH receive but a small percentage of their claims, hence they are the parties chiefly interested in contesting. relator’s claim; that relator’s claim was supported before the commissioners by the dep osition of Mrs. M. E. Synnestoedt, of Cin cinnati, Ohio, the mother of relator, the deposition having been taken by consent of the administrator upon interrogatories propounded by said Henry M. Cheever, and without notice to the creditors of the estate, or their attorney; that there was no cross-examination of said witness, nor were cross interrogatories propounded to her by any one; that said administrator has declined to allow said Brewster to represent the estate upon said appeal, on the ground that it would be offensive to relator; that he informed said Brewster that he-would employ some other attoriiey; that said Brewster offered to conduct the case without expense to the estate. Editor.

g — 1That on September 4, 1896, an ordel- was entered that Ambrose Appleton and John C. Iler might enter their appearanee in the cause as parties thereto by James II. Brewster, their attorney, at their own expense, and- without expense to the estate; that upon the filing of .said order and service upon Henry H. Cheever, attorney for relator, and Bethune duflield, who had appeared for said administrator, of a certified copy of said order, said appearance should be deemed to have been entered in said cause; that said’ cause is upon the docket of the present term of the Wayne circuit court, and has not yet been reached.

h — That it does not appear that relator can be injured, prejudiced, or affected in his legal rights by said order, and for this reason respondent submits relator’s petition should be dismissed,


source: Caselaw Access Project

license: Public Domain

text:
    George T. Hughes v. Charles H. Wisner, Circuit Judge of Genesee County.
    Bill of exceptions — Extending • time FOR SETTLEMENT OF.
    Relator applied November 10,1896; for mandamus to compel the respondent to vacate an order denying a motion for an extension of time in which to settle a bill of exceptions, and an order to show cause was denied. On a second application made January 4,1897, it was ordered that the respondent exercise his discretion as to the settling of said bill of exceptions, and make or refuse such settlement on such terms as might to him appear just.

      F. FI. Flmeriek, for relator, contended:
    1. That it appears from the record in the case that the time in which to settle a bill of exceptions was by an order of the court made April 20, 1896, extended until May 20, 1896; that a transcript of the testimony and proceedings necessary to the preparation of said bill was not procured by the counsel for the defendant until May 4,1896.
    2. That defendant’s good faith is shown by the filing of the required bond, the procuring of and paying for the entire transcript of the testimony, charge, and other proceedings as expeditiously as. the same could be procured; that defendant lost no rights which he had on May 20, 1896, by not formally tendering to respondent a draft of the proposed bill of exceptions; that the court will not presume, especially after reading the affidavit of plaintiff’s attorney, that he would consent to or in any way cooperate in- the settlement of said bill. (See summary of affidavit of J. R. Laing).
    3. That respondent had power legally to extend from time to time the time for the settlement of a bill of exceptions, after granting the first extension, to such time and extent as he saw proper; citing Circuit Court Rules No. 85, 86; White v. Campbell, 25 Mich. 464; Lenhoff v. Circuit Judge, 82 Id. 567; that the express denial of relator’s motion was equivalent to a definite statement on respondent’s part that no further proceedings would or could be had for the settlement of the bill so far as the trial court was concerned; that it is .different from a case where the time after the first extension is suffered merely to expire; that in sueh a ease a circuit judge might, on proper application, reinstate the right to settle the bill or settle the bill without regard to such expiration; citing Lenhoff v. Circuit Judge, 82 Mich. 567; that when the circuit judge by his formal order denies the further right and extension, the party should have the right, as claimed in this ease, to at once apply for mandamus if such denial is an abuse of the judicial discretion; that mandamus is the proper remedy for such abuse, and to secure a reasonable time in which to settle a bill of exceptions; citing, in addition to the cases last citied, People v. Circuit Judge, 41 Mich. 725.
   The facts as shown by the record were:

a.....That on February 5, 1896, Frances A. Kingsley recovered a judgment against relator for $900 in the circuit court for Genesee county.

6--That on February 6, 1896, relator secured the entry of an order staying all proceedings in said cause, except- taxation of costs, for 20 days, and in case the statutory bond should be filed said stay was to be extended until the first day of the next term of said court; that it was further ordered that relator have until the first day of the next term of said court (April 20,1896) in which to move for a new trial, or settle a bill of exceptions.

c — That on April 17,1896, a motion was entered by relator's attorney for an extension of the order of February 6,1896, for 60 days; that in support of this motion the relator filed the affidavit of W. J. Parker, who acted as official stenographer on' the trial of said case, in which he averred that a few days after the trial he received an order from relator’s attorney for a copy of the testimony taken on^the trial; that he was making such copy; that he would be unable to complete'the same for use before May 1,1896, as said testimony was very voluminous, and he was unable to work steadily on said record on account of Ms work as a stenographer calling Mm away to attend courts and other places where Ms services were required; that he could not possibly complete said record ready for use before May 1, 1896, but that oy that time it would be completed.

Lln^liis affidavit said attorney, after reciting the proceedings had after judgment down to the application for a stay of 60 days, averred that a stay was given, as he supposed, for 60 days, but the court journal showed it to haye been for 30 days; that the testimony had been reduced to writing, and was then in affiant’spossession; that on receiving said testimony, affiant went several times to the Ofiice of J. R, Laing, attorney for plaintiff, and found that he was at home sick; that the circuit judge was absent from the county; that supposing that affiant had 60 days in which to settle a bill‘of exceptions,'he took no further action in the premises; that as soon as affiant learned that the stay was but for 30 days, he prepared a stipulation for a continuance, and on May 19, 1896, went to the home of the plaintiff’s attorney, where he was confined by sickness, and requested him to sign said stipulation; that affiant was given to believe that the-stipulation would be signed, and was informed by plaintiff’s attorney that he would Isend the stipulation to affiant, which he failed to do; that affiant was informed, _and believed that plaintiff would ask for an execution on May 21, 1896, against relator; that affiant had used all due diligence in securing the record'from the stenographer; that said record had been procured in good faith, and had been paid for by relator; that said stenographer had not had a very large experience; that the record contained 163 pages; that affiant was ready to settle the bill at any day, but that the attorney for plaintiff was sick at home; that the circuit judge was absent from the county; that affiant, for the purpose of protecting the rights of relator, asked for sufficient time to get said bill signed by the court, and for this reason made said motion.

The attorney for the plaintiff made an affidavit in opposition to said motion, in which he averred that on May 19, 1896, he refused to sign a stipulation presented by relator’s attorney consenting to a further extension of time in which to settle said bill of exceptions until affiant had seen his client; that affiant stated to relator’s attorney that he could not assume to extend such time inasmuch as plaintiff had determined to take out an execution as soon as the time had expired, which would be the next day; that affiant would see plaintiff, and if she would consent he would sign the stipulation; that affiant said to relator’s attorney plainly-that he did not believe that the plaintiff would give such consent; that the time in which to settle said- bill had been twice extended on the motion of relator’s attorney; that affiant was informed and believed that it was the policy of defendant to delay proceedings for the purpose of forcing a settlement satisfactory to himself, and for no other reason. Editor.]

d — That on April 20, 1896 an order was entered which, after reciting that relator had filed the required statutory bond for staying proceedings, directed that a further stay of 30 days be granted, and that relator have '30 days in which to settle a bill of exceptions.

e — That on May 20,~ 1896, ^-relator's 'at-' torney moved the court for a further extension of time in which to settle said bill of exceptions; that said motion was noticed for hearing for June 1, 1896, and was based upon the,affidavit of relator’s attorney, and upon the records and files in the case. '

/ — That on account of the illness of plaintiff’s attorney the hearing of said motion was twice continued; that a hearing was finally had, and on October 3,1896, the motion was denied.'

g — That in the petition renewing Ms application for a mandamus the relator averred that the transcript of the record, which he had ordered from the stenographer a few clays after the trial, was furnished to relator May 4, 1894; that on the same day ho delivered said transcript to his attorney; that said attorney did not prepare therefrom a draft of the proposed bill of exceptions, as expected by relator, but on May 20, 189(5, hied said transcript in the clerk’s office; that relator also furnished the required bond, and did all that his attorney required of him, and all that he supposed was necessary to remove said cause to the Supreme Court for review. (Edward A. Murphy was relator’s attorney in the trial court).

[Annexed to the petition was a paper signed by the respondent, in which he slated:

« — That it had been his uniform practice to afford litigants every reasonable opportunity to obtain a review of any proceeding had' in his court; that when the third application for an extension of time for settling a bill of exceptions was made, no proposed bill having boen serve'p and the attorney for the defendant having merely filed with the clerk the stenographer’s entire transcribed notes, respondent concluded that the defendant did not intend to settle any bill, but was merely endeavoring to obtain as much delay as possible, and declined to further extend the time for settling said bill.

6 — 1That respondent had become satisfied that the defendant was in good faith endeavoring to have his ease removed to tno Supreme Court; that he had personally done all in his power to accomplish such result; that the lack of proper action in his behalf was due solely to the inexperience of his attorney; that were respondent in a position to grant the right to settle a bill of exceptions as he then understood the facts, he should do so, but as the matter stood he doubted his authority to reopen the ease; that he did not desire to make any further return, but thought that the attorney for the plaintiff should have an opportunity to be heard in the matter, if he so desired; that the record showed that Edward S. Lee, of Flint, Michigan, was the attorney for plaintiff. Editob.]


text:
    Lewis Deuel, Dorman Curtis, and Wilber J. Wilson. Comprising the Soldiers’ Relief Commission of Kalkaska County, v. The Board of Supervisors of Kalkaska County.
    Indigent union soldiers — Levy by BOARD OF SUPERVISORS OF TAX TO CREATE A RELIEF FUND.
    Belators applied for mandamus to compel the respondents to forthwith meet and levy a tax of one-tenth of one mill on a dollar upon the taxable property of Kalkaska county for the purpose of creating a fund for the relief of honorably discharged indigent ox-union soldiers. An order to show cause was granted, a hearing had on petition and answer, and on November 18, 1890, the application was granted.

      Totten á Phelps, for relators, eon-tended:
    1. That under Act No. 253, Laws of 1895, it was the duty of the respondents to levy some part of one-tenth of one mill on .each dollar of the taxable property of the several townships in their county for the purpose of creating a soldiers relief fund; that they could uot exceed that amount, but must levy some portion thereof; that it is no defense to say that one dollar was ordered to be spread in each township, that not being-in any sense a tax levy; that it was an unequal demand on the tax payers, which they could lawfully resist.
    2. That the discretion of the respondents could not control entirely in the levying of the tax; that if any amount was to be levied, it must be a reasonable amount and sufficient to aid those entitled to aid under said act; that respondents’ discretion could not prevail to the extent that they could decide how much tax must be levied to aid the beneficiaries; that the soldiers relief commission estimates the amount necessary, and then estimate should control, except in cases where it is fraudulent, which is not claimed in this case; that the words “not exceeding” used in section one are words of limitation only; that the duty to raise the tax to the-limit is plainly pointed out; that no implied power is granted the boai’d to estimate the amount needed, that duty being left for the commission under section five of the act; that the power to estimate includes the power to consider and determine how much will be needed for the support of persons entitled to relief; that the commissioners alone can best determine what amount is reasonable; that the Legislature took notice that there was in all of the counties of Michigan a number of honorably discharged ex-union soldiers, sailors, and marines, and those dependent on them for support; that they anticipated not only Che present but the future possibility of some of those persons being or becoming indigent; that the levying of this tax is a statutory duty.
    3. That neither expressly nor by implication has the board of supervisors any power to determine the amount of relief probably needed; that the commission has an independent and separate line of conduct to pursue; that they take into account their past expense and the amount of the fund on hand, if any, and determine the probable amount needed; that within their sphere of action their inquiry, knowledge, and determination are brought into use, in other words their decision is quasi judicial; that the sphere of action on the part of the board A supervisors ■ is separate, and independent also; that their movement should be influenced by the estimate of the commission; that this line of movement is clearly contemplated in the statute; that the provision for this estimate first appeared in the statute of 1895; that prior thereto no assessment could have been for less than one-tentli of one mill; that had the Legislature inteuded Chat the supervisors should be the estimators of the amount needed, such intention would have been made manifest in the act; that even if under the act of 1889 (Act No. 193) the supervisors were permitted to estimate and determine the amount needed, the act of 1895 does not give them such exclusive power.
    4. That respondents cannot consistently urge that only those listed by the supervisors in May, 1896, and returned on lists to the commission, can bo aided under the act; that if that contention is to prevail, the object of the act maybe defeated by the carelessness or negligence of the supervisors; that it appears by the affidavit of the supervisor of the township of Kalkaska that ho must have failed to make proper lists in May, 1896, and that in his township there were indigent persons entitled to relief under the act.
    5. That the act does not expressly include cases of sickness, accident, and death, — evidently a class of eases outside of those known as ordinary indigent cases; that the act does not deprive the commission of the right to hear emergency petitions, but leaves these cases primarily .under the control of the commission; that supervisors cannot draw orders in such cases except when it is inconvenient to consult the commission; that they are limited in drawing orders to ten dollars, and in such eases full report must be made to the commission, after which the commission has charge of the eases, and its action in granting relief is final; that the law contemplates that the ensuing yeai’s expenses, Oitiber 1896 to 1897, shall be estimatedbythecoinmission; that if the tax of 1896 is received for such purpose in March, 1897, it will be used in aiding indigent persons who are entitled to and may be listed in May, 1897, and reported to the commission by the several supervisors; that presumably such list will be made and proper action taken by the commission in May, 1897. •
    6. That it cannot be urged that there is a fund on hand sufficient to meet all expenses; that the unexpended fund on hand April 1, 1896, is no longer under the absolute control of the commission, and subject to its orders, for the reasons:
    « — That the power of the commission to draw orders on the township clerk, and his power to draw orders on the township treasurer, under section 4 of Act No. 193, Laws of 1889, was abrogated by the implied repeal of that section by the act of 1895.

      b -That by section 6 of Act No. 253, Laws of 1895, said unexpended fund is under the control of the township board, and at any instant may become a part of the general fund of the township; that relators have been informed that such fund has been in great part transferred; that there is no certainty that it will remain intact for the payment of any relief, even if power was in the commission to indirectly cause it to be paid out.
    c — 'That by section 1 of the act of 1895 the funds raised in 1895 and 1896 were payable to the county treasurer of Kalkaska county; that no such fund is in his hands; that such funds are payable only on the order of the commission under the act of 1895; that it is evident that the only fund on which the commission can draw orders is that in the hands of the county treasurer; that until such fund is provided, the law is ineffectual, and the beneficiaries under the act cannot be relieved.
    7. That the following authorities bear upon the questions involved in this application: Wilkinson v. Cheatham 43 Ga. 258; (Víate v. Smith, 11 Wis. 65; State v. Harris, 17 Ohio St. 615; People v. Supervisors, 8 N. Y. 317.

      [The petition charged that there were unpaid bills then outstanding which had been in good faith incurred by the commission for the relief of said soldiers, which could not be paid until said fund was raised. The respondents in their answer averred a want of knowledge on this subject. Editor.]
    [It was charged in the petition that since the making of said report the relators had been informed that a portion of the moneys raised under the acts amended by the act of 1895 had been transferred by the township boards of the townships to and made a part of the general funds -of said townships; that when the report was made there was not and was not at date of the petition any money or fund on hand to defray the ex-, pense of maintaining or aiding the persons- referred to in the petition. No answer was made to this charge. EDITOR.]
    [The answer denied that any of said poor and indigent persons were in danger of neglect or want of care on account of the action of the respondents, and charged that respondents had performed their duty in relation to the soldiers’ relief commission for the best interests of the tax-payers of Kalkaska county; that they believed that the poor and indigent soldiers, their widows and children, in the several townships of the county could best be looked after and cared for in case of need by the township officers whose duty it was to care for such cases, the distinction between township and county poor existing in said county; that they could be so eared for at much less expense than by relators; that it was the judgment of respondents that they, as a board, might order spread upon -the rolls of the several townships any sum not to exceed one-tenth of one mill on a dollar’s valuation for said relief fund. Editor.]

      J. L. Boycl, Prosecuting Attorney, for respondents.
   The facts as established by the petition and answer were:

a — That relators comprise the Soldiers Relief Commission of the county of Kalkaska.

b — That there are about one hundred ex-union soldiers residing in said county, many of whom are in indigent circum > stances.

c — That the money to arise from the tax levy asked for by relators will not be paid into the hands of the treasurer of Kalkaska county before March 1, 1897.

d — That at the October, 1896, session of the board of supervisors of Kalkaska county relators made a full report to said board of their doings,’ specifying the amount of relief fund on hand, -and requested that one-tenth of one mill be levied and collected as provided by law on the taxable property of each township in the county of Kalkaska.

e — That the assessed valuation for 1896 of the several townships in Kalkaska county aggregated $2,311,193; that about $234.11 would be raised by taxation in said county if the respondents should comply with relators’ request as to said tax levy; that this would give to each of the twelve townships a little less than twenty dollars to be used in such townships by relators in the ear of poor and indigent soldiers, their widows and children.

/ — That respondents had refused to order said tax spread as requested by relators, but had ordered spread, in the several townships, twelve dollars, or one dollar in each township; that said sum would be insufficient to aid said commission in the care of said poor and indigent soldiers.


text:
    James Whiteley, Proponent, v. Nellie M. Whiteley, Contestant.
    Writ of error — Dismissal of fob. want OF PROSECUTION AND FOR OTHER REASONS.
    Motion by proponent to dismiss a wiit of error sued out by the contestant to review proceedings on appeal from the probate of a will after the decision affirming the order appealed from had been certified back to the probate court. Granted November 20,1896.

      Smith & Lee, for motion.

      M. V & R. A. Montgomery, contra.

   The facts as shown by the record and the affidavit of Quincy A. Smith, one of the' attorneys for the proponent, filed in support of the motion, were:

a — That the contestant, Nellie M. Whiteley, appealed from the probate by the probate court of Ingham county of a paper purporting to bo the last will and testament of Elizabeth Whiteley; that the appeal was perfected February 13, 1894,. by the filing of the necessary papers in the circuit court of Ingham county; that the appeal was tried, and on December 5, 1895, an order was entered, based upon the verdict of the jury impaneLed to try said appeal, affirming the order appealed from, and directing that the case bo remitted to the probate court for further proceedings.

b — That on February 26, 1890, the contestant was granted a stay of proceedings for 20 days to enable her to move for a new trial, or settle a bill of exceptions; that said motion was made and denied; that no bill of exceptions was thereafter,, at any time, offered or proposed by said contestant for settlement; that on March 27, 1896, on motion of proponent an order was made that the record and proceedings and final determination and order of the circuit court be certified to the probate court of Ingham county for further proceedings according to law; that said order was thereafter duly executed by the clerk of said circuit court.

c — That no further application for an extension of time in which to settle a bill of exceptions or to take any other steps or proceedings in the case had over been made to the circuit court.

d — That in pursuance of the final order of the circuit .court proponent’s costs were taxed; that an execution was issued for their collection; that the sheriff was induced, through the promises of the contestant or her attorneys to pay said costs, to refrain from making a levy under said execution, and the same was returned unsatisfied; that after an alias execution had been issued, and on June 22, 1896, the attorneys for the contestant sued out a writ of error returnable July 31, 1896, notice of which action was served on the attorneys for the proponent; that the contestant executed the statutory bond to stay proceedings; that no return had been made to said writ of error, and no further proceedings had been had by the contestant in said matter sinee the issuance of said writ.


text:
    John W. Hefferman v. Stearns F. Smith, Circuit Judge of Livingston County.
    Appeal from justice’s court — Allowance OF AFTER THE EXPIRATION OF THE STATUTORY FIVE DAYS.
    Relator applied for mandamus to compel the respondent to vacate an order granting leave to appeal from a justice’s judgment after the expiration of five days from the rendition thereof. An order to show cause was granted, a hearing had on petition and answer, and on December 4, 1896, the application was granted.

      Judd Yelland, for relator, contended:
    1. That How. Stat. § 7005, does not give a general discretion to the circuit court to allow an appeal when it would be merely equitable; that such right is only given when a party has been prevented by circumstances beyond his control from taking his appeal within the statutory five days; citing Draper v. Tooker, 16 Mich. 74, that the statute has reference to such circumstances as happen and exist after the rendition of judgment, and before the expiration of the succeeding five days; that the statute is fully discussed and this case disposed of in Combs v. Circuit Judge, 99 Mich. 234.
    2. That there are @®ly two questions raised in this case:
    a — Are errors made by the justice before rendition of judgment sueh “circumstances” as are referred to in ‘the statute.
    b — Could plaintiff wait until his attorney could write to a place in California and receive a reply by mail to ascertain whether or not the facts testified to on the trial were true.
    3. That if a party can go behind the judgment, and assign errors ipade by the justice as a cause for allowing an appeal under the statute, other forms of appeal may as well be abolished; that if the action of the justice in allowing relator to amend his plea by giving notice of novation as a special defense becomes material,' it is suggested that said amendment was allowed, as shown by the affidavit of the justice, by the express consent of the plaintiff; that said averment not being denied by the plaintiff on the hearing before the respondent was admitted.
    [The relator states in his petition that the plaintiff’s attorney consented to such amendment. The respondent in his answer does not admit or deny the truth of this averment, which was supported by the affidavits of the justice of the peace before whom the case was tried, and of the attorney for relator. Editor]
    [In said affidavit said Howlett averred that he was the attorney for the plaintiff, who was a resident of Los Angeles, California; that plaintiff was not present at the trial of the case, nor was any one present to refute the claim of the defendant that there had been a novation as to said note; that upon the rendition of the judgment, deponent wrote to plaintiff at Los Angeles, California, to ascertain the truth’or falsity of said claim; that on July 8,1896, deponent received a letter from plaintiff stating that the claim of a novation was false, and that he desired the case appealed to the circuit court; that at the time deponent received said letter the five days allowed for such appeal had expired; that deponent was as expeditious as possible in getting said information to plaintiff; that it was impossible for deponent to get a communication of the facts aforesaid to plaintiff, and receive an intelligent reply within the five days allowed by the statute for an appeal; Editor.!

      4. That the “circumstances” referred to in the statute are sueh as sickness existing after judgment and before the expiration of five days thereafter; that the affidavits attached to respondent’s return expressly state that plaintiff’s wife placed the note sued upon with his attorney, and ordered it sued; that she talked with said attorney immediately after judgment was rendered; that to attempt to communicate by mail with the plaintiff to ascertain his version of the facts upon which the alleged novation was based was not the most expeditious mode of communication; that the allowance of the appeal will tend to broaden the meaning of the statute, and open the door to appeal by litigants at any time, and will tend to detract from the force of the statute requiring such appeal to be taken within five days after judgment is rendered.

      Louis JS. Hewlett, for respondent, contended:
    1. That at the dose of the opinion in Combs v. Circuit Judge, 99 Mich. 234, there is an annotation of all the cases decided in this Court under How. Stat. § 7005, as amended by Act No. 73, Laws of 1891; that in each of the cases the facts were different, but the eases are all to the effect that if an appellant has been as expeditious as possible, and has been prevented from taking an appeal within the five days, the appellate court should permit the appeal; citing Loree v. Beeves, 2 Mich. 136; Braastaav. Mining Co., 54 Id. 258; Gapwell v. Baxter, 58 Id. 571; Merriman v. Circuit Judge, 96 Id. 603.
    2. That the petition for leave to appeal states that the claimed novation proven on the trial on the part of the defendant was false, and that the plaintiff had a good cause of action upon the note sued upon; that in view of all of the facts,' and considering that it was impossible for the plaintiff, by reason of the distance of his place of residence, to learn the result of his case, and give directions within the five days, and in view of the fact that he claimed to have a good cause of aetion on the note, or rather that there is no legal defense to his aetion thereon, it is submitted that the respondent did not abuse his discretion, nor did he make a wrong application of the statute, as amended, to the facts in this case.
   The facts as established by the petition and answer were:

1. That on April 22, 1896, the relator was sued by one Ethan H. Beach in justice’s court upon a promissory note; that the plaintiff declared upon said note; that relator pleaded verbally the general issue, with notice of set off and of recoupment; that at the trial of the case, after the plaintiff had introduced the note in evidence and rested his case, the relator undertook to prove a novation; that said evidence being objected to for want of .a proper notice, the defendant was permitted to amend his plea by giving such notice; that the trial was then proceeded with, and resulted in a verdict and judgment of no cause of aetion.

2. That on August 10, 1896, the motion of the plaintiff for leave to appeal from said judgment to the circuit court for the county of Livingston was argued before the respondent; that said motion was made under How. Stat. § 7005, as amended by Act No. 73, Laws of 1891, and was based upon the affidavit of Louis E. Howlett, a copy of which is attached to relator’s petition.

[The respondent in his answer denied the averment in the petition that plaintiff was not prevented by circumstances not under Ms control from taking said appeal within the statutory five days, but on the contrary gave it as his opinion that the contrary is the fact within the meaning of the statute cited. Editoe.]

That upon the hearing of said motion the relator’s attorney filed his own affidavit in opposition to said motion, in which it was averred, among other things, upon information and belief, that the plaintiff’s attorney was employed in said cause by plaintiff’s wife, who during the time the ease was being carried on resided near the village of Howell, in tho county of Livingston, and was in constant communication with plaintiff’s attorney; that it appearing to the respondent that owing to the plaintiff’s non-residence it was impossible to' communicate to him the result of the trial, and receive an intelligent reply within the five days allowed for appeal, an order was made permitting the appeal set forth in relator’s petition.

3. That a motion made by the plaintiff to vacate said order permitting an appeal was denied by the respondent.


text:
    Frank G. Holmes v. Angelina Goossen.
    Chancery appeal — Dismissal of because CASE NOT MADE AND FILED WITHIN THE STATUTORY FOUR MONTHS.
    Motion by complainant to dismiss the appeal of the defendant because the ease was not made and filed until after the expiration of the four months allowed by Act No. 186, Laws of 1895. Granted December 4,1896.

      Frank C. Holmes, for motion, contended:
    1. That the extension of time for settling a case was taken under Act No. 186, Laws of 1895, which, after providing for the examination of the witnesses in a chancery suit in open court, and for the making and settling of a case, further provides that the court in which the case ■shall have been tried or the judge thereof shall have ppwer, on special motion and proper showing, to grant an extension of the time for making and filing the case provided for in said aet (60 days) for a period not exceeding four months, from and after the date of the entry of such decree or final order; and upon the case so made and filed as herein authorized an appeal may be taken to the Supreme Court by any of the parties to such suit, as in ordinary chancery cases.
    2. That the provision cited was not complied with by the defendant, the case not being filed within the statutory four months.

      M. 11. Walker, contra, contended:
    1. That the application under Act No. 18(5, Laws of 1895, for an extension of time to settle a ease can bo made after tho 60 days from the date of entering the decree have expired; citing Tilden v. Circuit Judge, 44 Mich. 515; liailway Go. v. Chambers, 89 Id. 7.
    2. That it seems to be the settled practice of this Court to grant an extension of time for the settling of the case, even beyond the statutory period or limit, where a failure to settle it within the time has resulted from causes not within the control of the appellant, sueh as the failure of the stenographer to furnish a copy of the testimony, etc.; eiting Cameron v. Calkins, 43 Mich. 191; Cram v. Wasey, 45 Id. 223; Railway Co. v. Chambers, 89 Id. 7; that in the latter case the Court clearly intimate that the trial court has the power, and that under sueh circumstances it would be its duty, to grant an extension beyond the statutory period; that, however this may be, the judge of the superior court had power, upon, application and showing, to extend the time at least four months from, the date of the decree; that he exercised such power, and granted an extension of four months from May 2(5, 1890, the date of entry of decree.
    [There are other faets and points in the ease bearing upon the alleged failure of the appellant to perfect her appeal by filing the required bond, the one filed being defective, as claimed by the appellee. In the files in the Supreme Court is a letter written by the solicitor for the defendant to Chief Justice Long asking “upon what precise ground the appeal was dismissed, and in what particular respect the proceedings to appeal were deemed to be fatally defective.” The folfowing indorsement appears at the foot of the letter: “Case not made and filed within the four months in accordance with Laws of 1895, p. 348, Act No. 186.” EDITOR.]
    3. That the 40 days in which to file a bond and perfect the appeal does not begin to run until the oase has been settled and filed; citing Gale v. Gould, 40 Mich. 62; Love v. Francis, 63 Id. 189; that the claim and notice of appeal were filed June 30, 1896; that the bond on appeal was filed the same day; that on August 20, 1896, said bond was approved, after due notice of the filing thereof, and of at - plication for .such approval having been given, as appears by complainant’s own affidavit; that all of this was done before the four months for settling and filing the case had expired, to say nothing of tire 40 days additional; that this was a compliance with the proviso in the order granting the extension that “an approved bond be filed on or before 10 days from tire date of said order;” that said order bore date August 12, 1896; that the trial judge approved the appeal bond August 20,1896, which was within the 10 days specified in the order; that on September 15,1896, the trial judge settled and signed the proposed case and testimony; that there were still 40 days in which to have filed a claim of appeal and approved bond, but no further steps were deemed necessary by the solicitor for the appellant, nor was any question raised by complainant or his solicitors until after the 40 days had expired, hence nothing further was done; that said 40 days expired not earlier than October 25, 1896, and soon afterwards this motion was made; that in the meantime the appellant had caused the record to bo printed and the return on the appeal made and filed in the Supreme Court, and is preparing the case for hearing at the January, 1897, term of Court; that there is no pretense that the bondsmen are insufficient, or that the complainant has been in any wise prejudiced by the action of the appellant, or her failure to act.
   The facts as shown by the record and the affidavits filed in support of and in opposition to the motion, so far as pertinent to the point passed upon by the Court, were:

« — That on May 23,1896, a final decree was entered in favor of the complainant.

b — That on August 12, 1896,- the court made an order giving the defendant 120 days from the date of entry of decree to settle a case.

c — That the case was not settled and filed within the time allowed in said order, and was not filed until more.than five months after the entry of the decree.


text:
    Peter Rush v. The Common Council of the City of Letroit.
    Board of estimates — Right of ex-officio MEMBERS TO PAY FOR THEIR SERVICES.
    Relator applied to the Wayne circuit court for mandamus to compel the respondent to audit and allow the compensation of relator as a member of the board of estimates of the city of Detroit, and to direct the city controller to draw his warrant on the city treasurer in favor of relator for the amount thereof, as required by the city charter. An order to show cause was granted, a hearing had on petition and answer, and on September 29, 1896, the application was granted, which decision was on December 4,1896, affirmed on certiorari.

      John J. Speed, for relator, contended:
    1. That the only question at'jssue in this case is as to whether or not the ex-'offieio members of the board of estimates of the city of Detroit are entitled to pay for their services.
    2. That by an act approved March 28, 1873 (2 Local Acts of 1873, p. 265), a board of estimates for the city of Detroit was created; that by the enactment of the charter of 1883, under which the duties of said board were performed by an upper house, known as the board of conneilmen, the act of 1873 became obsolete; that by Act No. 488, Local Acts of 1887, the board of councilmen was abolished and the present board of estimates provided for by re-enactment of the terms of the 1873 act with a slight modification as to what officers should be ex-officio members and as to compensation of its members, who under the act of 1887 were to receive $3 per day for each daily session of said board; that the following extracts from said act are important to consider in this case:
    a — Section 2 of chapter 8, which provides for the creation of said board, and that it shall be constituted as follows: “Two members from each ward, who shall be elected at the same time as aldermen, and five members who shall be elected at the same time as the mayor, and who shall hold their office for a term of two years.”
    , Section 3 of chapter 8, which provides that “all members of said board shall be resident electors of said city, and hold their offices until their successors shall be elected and qualified; that the following- officers of said city shall be ex-officio members of said board, and shall have the right to participate in its deliberations, but shall not have the right to vote, to wit, the president and chairman of the committee on ways and means of the common council, the city controller,” and certain other officials named in the section; that all members of the board shall, before entering upon the discharge of their duties, take and subscribe and file in the office of the city clerk the same oath of office as is prescribed in the charter of said city to be taken by city officers; that the members of said board shall receive as compensation three dollars for each daily session of the board; that said board shall elect one of their members president of said board, who shall preside at its meetings, and who shall hold his office until the next election of members.”
    That the provision as to ex-officio members is inserted in the same section and in connection with the general provision relating to all members of the board; i. e. that “all members” shall be resident electors; that “all members” shall before entering upon the discharge of their duties take the prescribed oath of office; that “ the members of said board” shall receive as compensation three dollars for each daily session of the board; that the board shall elect one of “their members” president, etc; that by these general provisions tire ex-officio members must be resident electors, whatever might be the regulation of the particular act or acts providing for such officers; that all members are required to take the oath of office as members of the board; that the president might be an ex-officio member as welL as one elected, and there is no exception as to the members who are entitled to compensation; that as all members of the board; give the same time and the same labor and in a measure, shai e the same responsibility why should there bo a discrimination as to pay?

      Charles Floivers and Charles J>. Joshjn, for respondent.
   The facts as established by the answer were:

a — That in the years 1890, 1891, and 1892 the relator was controller of the city of Detroit.

b — That by the charter of the city of Detroit the city controller may be a member of the board of estimates.

c — That relator attended and participated in the deliberations of the board of estimates at their meetings held in the years 1890, 1891, and 1892; ten daily sessions being held in each of the years 1890 and 1891, and nine daily sessions in 1892.

«¡ — That relator presented a petition to the respondent asking payment fpr the sum of $87, which petition was denied.


text:
    Mansfield Shelley v. William W. Chapin, Judge of the Recorder's Court of the City of Detroit.
    Jurors — Disqualification of by reason OF SERVICE IN COURTS OF ^RECORD OF Wayne county within three years— In what courts must service have BEEN RENDERED.
    Relator applied for mandamus to compel the respondent to vacate an order made November 16, 1896, discharging relator from service as a juror in respondent’s court, on the ground of his disqualification to so serve by reason of having served as a member of the panel ■of traverse jurors in the United States oircuit court for the Eastern District of Michigan during the months of March And April, 1896. An order to show cause was granted, a hearing had on petition ^nd answer, and on December 18, 1896, the application was denied.

      George F. Bobison, for relator, contended:
    1. That there was no disqualification -of persons to serve as jurors in this State on account of previous service until by Act No. 129, Laws of 1867, it was enacted •“that no person shall be qualified to or become'one of a panel of jurors in any Circuit court or court of record in Wayne county who, within one year prior- thereto, has been or acted as a member of a panel of jurors summoned on the original panel or added thereto as talesman in the same -court;” that by Act No. 48, Laws of 1869 (How. Stat. § 7582) this act was amended so as to except from its operation justices ■of the peace of Wayne county; that in the ■same year (How. Stat. § 7584) it was made “a good cause of challenge to any juror in any court of record in this State, in addition to the other causes of challenge allowed by law, that such person has served as a juror upon the regular panel, or as talesman in such court, at any time within one year previous to such challenge,” thus extending the disqualification to all the courts of the State; that by Act No. 204, Laws of 1893, section 5, the act relative to Wayne county was further amended so as to extend the time for disqualification to three years in the language of the 1895 act hereinafter quoted, and by providing in addition to “that no person shall be qualified,” etc., “that no person shaH be returned or shall be qualified,” etc.
    That the law as it now stands (Act No. 5, Laws of 1895, sec. 5) is as follows:
    “No person shall be returned or shall be qualified to be or become one of a panel of petit or grand jurors in any court of record in Wayne county who, within three years prior thereto, has been oraeted as a member of a panel of petit or grand jurors, whether summoned on the original panel or added thereto as talesmen, in a court of record, except as otherwise provided in section 21, and it shall be the duty of each of said courts on the return day of the venire to inquire of the jurors •summoned if any of them have served as jurors during the preceding three years, And to excuse from service any jurors who have so served.”
    That in Wayne county the courts of record having juries are the circuit cpurt and recorder’s court of the city of Detroit, whose terms are respectively three and two months in duration; that a professional juror might, under the provisions of the law as it existed prior to 1893, obtain five months service each year upon a jury in Wayne county; that by the act of 1893 the time of disqualification was extended to three years, and instead of being limited to the “same court” it was made to extend to “a court of record,” meaning either the circuit or recorder’s court; that the amendment of 1893 was directed to the jury commission of Wayne county, as it provided “that no person shall be returned,” etc, which words were wanting in the previous acts.
    2. That the provisions of the existing act were not intended to apply to courts over which the State has no jurisdiction; that jurors in the United States court are selected by the clerk and a commissioner to be appointed by the judge to the number of 300, as far as practicable in the same manner as jurors are selected in the highest state courts, respectively; citing U. S. Revised Statutes, 800; that they are selected from the district at large, which, in all cases, covers a large extent of territory, and such a thing as “professional jurors” in the U. S. courts is unknown; that if it had been intended that this disqualification should extend to those persons who had served as jurors in the U. S. courts, the provision prohibiting the jury commissioners of Wayne county from returning as jurors all persons who had served as j urors during the preceding 3 years, would be inoperative for the reason that it is impossible for such commissioners to know who have served as jurors in the U. S. courts, the record in their office being confined to those persons drawn and who served as jurors in the courts of record of Wayne county.
   The facts as established by the petition and answer were:

a — That the name of relator was duly returned by the board of jury commissioners for Wayne county in a list of persons to serve as petit jurors in the recorder’s court of the city of Detroit for the year beginning on the fourth Monday of May, 1896.

b — That relator’s name was duly drawn from the jury box, and he was summoned to serve as a petit juror in said recorder’s court for the November, 1896, term thereof; that in obedience to said summons he appeared in said court on November 16» 1896; that on being orally examined by respondent as to his qualifications to serve as a juror, he was found to possess all the qualifications of jurors in said court» but in answer to the question of respondent whether or not relator had within three years prior thereto been or acted as a member of a panel of petit or grand jurors, relator stated that during the months of March and April, 1896, he had served as a member of the panel of traverse jurors in the United States circuit court for the Eastern District of Michigan; that thereupon said respondent excused relator from sendee as such juror on the ground that his service in the federal court disqualified him under the statute from serving as juror in respondent’s court.


text:
    Gertrude B. Vaughan v. Charles H. Wisner, Circuit Judge of Genesee County.
    Divorce — Publishing in non-resident dependant — Service op order for DEFENDANT’S APPEARANCE.
    Relator applied for mandamus to compel the respondent to hear her case, and if in his judgment the proofs taken therein entitled her to a decree of divorce to grant such decree, the sole reason given by the respondent for refusing to hear said case being that the order of publication made and entered therein had not been served on the defendant within the State of Michigan as, in his opinion, was required by Act No. 202, Laws of 1895. An order to show cause was waived, there being no dispute as to the facts, and on December 19, 1896, a writ of mandamus was granted.

      Durand & Carton, for relators, contended:
    1. That under Act No. 202, Laws of 1895, amendatory of How. Stat. § 6231, which provides, among other things, that no decree of divorce shall be granted in any casé “unless the defendant shall have been personally served with process in this State, or with copy of the order of publication in said cause, or has voluntarily appeared in such action or proceeding,” the court has the power to hear a divorce case and grant a decree therein, provided, first, that the defendant shall have been personally served with {process-in this State, or second, if the defendant shall have been personally served with a. copy of the order of publication in the cause, whether served in this State or elsewhere, or third, if the defendant has voluntarily appeared in such action or proceeding; that it has always been the policy of the State to enforce proceedings-against absent or non-resident- defendants by publication, and the object of the legislation in the act referred to was simply to prevent divorces from being obtained unless the defendant was notified of the pendency of the proceeding either by the service of the process upon him, if to be found in the State, or by serving a copy of the order of publication upon him if he were outside of the State; that the object of the legislation is to prevent fraudulent divorces secretly obtained and without the knowledge of the defendant; that this object was fully accomplished when a copy of the order of publication was personally served on the defendant in Seattle, where he was then living.
    2. That should the contention of the respondent be held to be correct, it would be impossible to get a divorce from any defendant who chose to absent himself from this State so that he could not be served with process or a copy of the order of publication; that, in fact, such a construction would render any publication in divorce cases useless, because if it were necessary that the copy of the order should be served on defendant in this State, it would not be necessary to have the order, as it would be easier and more to-the point to serve process on him as the complainant is entitled to do in any ease if the defendant is in the State.
   The facts as established by the petition and admitted by the answer were:

a — That on January 10, 1896, relator filed in the circuit court for Genesee county, in chancery, a bill for divorce; that at the time the bill was filed the defendant resided in the eity of Seattle in the state of Washington; that on the day the bill was filed an order for the appearance of the defendant, based, upon an affidavit of his non-residence, was issued; that said order was duly published as required by law; that on March 24, 1896, proof of such publication Was filed in the ease; that on June 20, 1896, the bill was taken as confessed, and a reference ordered to a circuit court commissioner of Genesee county to take the proofs; that on the same day said proofs were taken, and reported to the court, and were on the same day supplemented by proofs taken in open court.

b — That on October 12, 1896, a true copy of said order of publication, together with an offer to set aside said orders pro confesso and of reference, were personally served upon the defendant at said city of Seattle; that within a few days after such service relator received a letter from an attorney at law at Seattle, who claimed to be attorney for said defendant, in which he stated that the defendant would not appear in the cause; that relator’s solicitors waited until December 14, 1896, in order to give said defendant an opportunity to appear, and he not having appeared nor filed a plea, answer, or demurrer to said bill, said cause was brought on for hearing before said court; that respondent, who was the presiding judge of said court, refused to hear said case for the sole reason that said order of publication was not served on said defendant within the State of Michigan.


text:
    Minnie C. Hardy v. William R. Kendrick, Circuit Judge of Saginaw County.
    Mandamus — Power of circuit court TO ISSUE TO PROBATE JUDGE.
    Relator, as one of the heirs of John Hardy, deceased, applied for mandamus to compel the respondent to hear and decide upon the merits her application to the circuit court of Saginaw county for mandamus to compel the probate judge of said county to issue a citation for the examination of one John Heenan as to his knowledge of any assets belonging to the estate of said decedent not administered upon. An order to show cause was granted, a hearing had on petition and answer, and on December 4, 1896, the respondent was ordered to proceed to hear said application and decide the same upon the merits.

      Barnes & Hace and Robert Holland, for relator, contended:
    1. That section 8, art. 6, of the Constitution, was amended in 1893 so as to extend the jurisdiction of the circuit courts to issue writs of habeas corpus, ■ mandamus, injunction, quo warranto, certiorari, and other writs necessary to carry into effect their orders, judgments, and decrees, and give them general control over inferior courts and tribunals within their respective jurisdiction to all such other cases and matters as the Supreme Court should by rule prescribe; that after the adoption of said amendment Circuit Court Rule No. 107 was adopted, which reads as follows:
    “Circuit courts shall have jurisdiction within their respective counties in all mandamus proceedings involving the' action of any officer or board of any county, township, city, or school district oi- of the common council of any city or village, and the action of any private corporation or officer or board thereof. Said circuit courts shall also have jurisdiction to issue writs of certiorari in all eases where they may now be issued by the Supreme Court to probate courts, circuit court commissioners, and justices of the peace or any corporate body or officer thereof. Writs of certiorari and orders to show cause in cases of mandamus shall be made returnable and service' thereof made within such time as the-circuit courts shall upon each application direct.”
    [Rule No. 47 of the Michigan Revised; Rules of Practice readopts Circuit Court Rule No. 107, and further provides that, orders to show cause in mandamus proceedings may be made by the court, or in vacation by the judge thereof; that all material allegations of the petition for mandamus not specifically answered may be taken as admitted to be true as alleged, and that all mandamus proceedings shall stand for- hearing upon the return day of the writ without notice of trial or hearing, unless the court for cause shown shall order a postponement of such hearing. Editoe.]
    That Supreme Court Rule No. 65 (Rule No. 12, Revised Rules of Practice) provides for a review by the Supreme Court on certiorari of the decision of the circuit court allowing or denying a writ of mandamus.

      2. That Circuit Court Rule No. 107 expressly confers upon the circuit court the power to issue a writ of mandamus in proceedings involving the action of any officer or board of any county; that this Court did not mean to decide in Doumielle v. Manistee Co., 40Mieh. 585, that the judge of probate was not an officer of the county, but simply that, being a judicial officer, his duties concerned the State at large and not merely the locality, and as such he should not be subjected to the legislative control of any body inferior to the State Legislature; that he is an officer is plain from the definition of that term in Throop v. Lamgdon, 40 Mich. 678, where it was said that an office is a special trust or charge created by competent authority;” that the judge of-probate is an officer of the •county, for he is repeatedly referred to in those terms in the statutes themselves; that in the statutes referring to the compensation of judges of probate occur the expressions “Judge of probate of the several counties” and “Judges of probate •of their respective counties;” that this ■Court in Rule No. 107 used the language in the s'ame sense as did the Legislature; ■citing How. Stat. § 9012-9014.
    That in Hitchcock v. Judge of Probate, 99 Mich. 128, this Court assumed original jurisdiction of a proceeding to mandamus the judge of probate upon the express ground that the circuit judge was disqualified, having been of counsel in the •cause, from which it may be reasonably inferred that in the case at bar this Court would have sent relator back to the circuit court of Saginaw county had she applied here in the first instance; that in Baeon v. Judge of Probate, 100 Mich. 183, this Court without objection assumed jurisdiction by certiorari to the circuit court to review its order denying a writ of mandamus to the probate court; that the question of the jurisdiction of the circuit court was not distinctly raised, hut it would seem probable that if this Court had considered that the circuit court had no jurisdiction in the matter they would have declined to pass upon the merits of the question passed upon by the circuit judge.
    3. That the respondent erred in assuming that he had no jurisdiction outside of said section of the Constitution as amended, and Circuit Court rule No. 107 before cited; that it was held in People v. Circuit Judge, 18 Mich. 247, that “where a mandamus issues to direct the action of a legal tribunal, proceeding in the course of justice, it is an exercise ■of supervisory judicial control, and is in the nature of appellate action;” that it was held in McBride v. Common Council, 32 Mich. 360, that it was only intended by the section of the Constitution cited (before its amendment) to confer upon the circuit courts the power to issue the enumerated writs when “necessary to carry into effect their orders,' judgments, and decrees, and to give them a general control over inferior courts and tribunals within their respective jurisdictions.”
    That probate courts are inferior courts subject to the reyiew of the circuit court; citing Bailroad Co. v. Probate Judge, 63 Mich. 676, 680; that this doctrine has never been questioned; that it follows that prior to the adoption of Circuit Court Rule No. 107, circuit courts had jurisdiction to issue writs of mandamus to judges of prebate in the exercise of their supervision and control over inferior courts; that this jurisdiction was based upon the same constitutional provision as the jurisdiction to issue a common law writ of certiorari in the exercise of their supervision and control, which was sustained in Thompson v. School District, 25 Mich. 483.

      Humphrey <& Grant, for respondent, contended:
    1. That the probate court is not an inferior court or tribunal within the meaning of section 8, art. 6, of the Constitution, so that the action of the judge of probate in matters pertaining to his court can be controlled by the writ of mandamus issued out of the circuit court.
    2. That the circuit courts have no power to issue writs of mcmdamus generally; citing McBride v. Grand Bapids, 32 Mich. 360; that the only jurisdiction tobe exercised over probate courts by circuit courts is by means of statutory appeal; citing Holbrook v. Cook, 5 Mich. 225; that under this view of the character and standing of probate courts, it is clear that prior to the amendment of section 8, art. 6, of the Constitution, circuit courts had no power to control the action of judges of probate by writs of mandamus; that this has been universally recognized in practice; that many cases can be found in the reports where the writ of mandamus has been issued from the Supreme Court to judges of probate court, but none where an attempt has been made to procure the writ from a circuit court.
    3. That under Circuit Court Rule No. 107, a circuit court cannot issue a writ of mandamus against the judge of probate court unless it can be maintained that the judge of probate is an officer of the county, the contrary of which was held in Doumelle v. Supervisors, 40 Mich. 585; that from the wording of the rule itself it is apparent that the Supreme Court did not intend to confer upon circuit courts the power to issue writs of mandamus in cases like the one at bar; that in that portion of the rule relating to writs of certiorari, it is expressly provided that the circuit court may issue such writs to probate courts, while in the portion of the rule relating to mandamus proceedings no mention is made of probate courts or judge, and the jurisdiction in such proceedings is expressly limited to other definitely named officers.
    4. That in the case of HiteJieocTc v. Probate Judge, 99 Mich. 128, cited by relator’s counsel, a petition was presented to the Supreme Court for mandamus to compel the respondent to vacate an order of the probate eourt; that in answer to the contention of counsel for the respondent that the application should have been made to the circuit court the Court said that “it appeared that the circuit judge was, before taking his seat upon the bench, one of the attorneys in the matter, and that the case was properly in that court;” that it may be claimed that it is to be inferred from this language that if the circuit judge had not been disqualified, the application should have been made to the circuit court; that this, however, is merely an inference; that it does not appear from the case that the question now raised was called to the attention of the court; that if the language used will bear such an inference it was used inadvertently and without considering the fact that there is no provision either in the Constitution, the statute or rules of court for circuit courts to issue writs of mandamus to the judge of probate courts.
   The facts as established by the petition and answer were:

a — That on February 27, 1895, 'one John Hardy died at the city of Saginaw intestate; that administration of his estate was had in the probate court for Saginaw county.

I — That subsequently relator, as one of the heirs of said decedent, caused a citation to be issued from said probate court to one John Heenan for the purpose of examining him, before said probate eourt, as to certain property belonging, as alleged, to said estate and which had not been administered upon; that on the return day of said citation said John Heenan appeared before said probate court, and objected to being sworn and to answering such interrogatories as might be put to him touching his knowledge of the assets of said estate for the reason that an order hadbeen entered closing said estate, whereby the probate court had no longer jurisdiction in the premises nor authority to take any steps or proceedings concerning said estate or to require said Heenan to answer such interrogatories, which objection was sustained by the judge of probate, and he refused to permit relator to examine said Heenan as to said property.

c — That relator thereupon applied to the circuit eourt of Saginaw county for mandamus to compel said judge of probate to issue a second citation requiring said Heenan to appear before him and answer under oath such interrogatories as might be put to him concerning his knowledge of said property; that an order to show cause was issued, and upon a hearing had upon petition and answer respondent denied relator’s application for the sole reason that the circuit courts have no jurisdiction to issue writs of mandamus to the probate courts and the judges thereof.