Bristol v. Kalamazoo Coll. (In re Parker's Estate)

• Decision Date: 21 June 1934
• Docket Number: Motion No. 314.
• Citation: 268 Mich. 79,255 N.W. 318
• Parties: In re PARKER'S ESTATE. BRISTOL v. KALAMAZOO COLLEGE et al.
• Court: Michigan Supreme Court

268 Mich. 79

255 N.W. 318

In re PARKER'S ESTATE.BRISTOL

v.KALAMAZOO COLLEGE et al.

Motion No. 314.

Supreme Court of Michigan.

June 21, 1934.

Appeal from Circuit Court, Kalamazoo County; G. Arthur Rathbun, Judge.

Proceedings in the matter of the estate of Rachel Arvilla Parker, deceased, by Glenard H. Bristol for the probate of decedent's will, contested by Kalamazoo College and another. From an order of the Circuit Court denying a motion to dismiss an appeal from the probate court order admitting the will to probate, proponent appeals.

Appeal dismissed, and case remanded.

Argued before the Entire Bench.Adams, Van Horn & Bloem, of Kalamazoo, for appellant.

Jackson, Fitzgerald & Dalm, of Kalamazoo, for appellees.

NELSON SHARPE, Chief Justice.

The last will and testament of Rachel Arvilla Parker, executed on October 10, 1930, was admitted to probate by the probate court of the county of Kalamazoo on December 1, 1931. A contest had been filed by parties claiming under a former will. An appeal was taken to the circuit court pursuant to the provisions of the statute (3 Comp. Laws 1929, § 15958), and not in conformity with court rule No. 57 (Revision of 1931) then in force. A motion to dismiss was denied, from which the executor, by leave of the court, has taken this appeal.

Rule No. 57, entitled ‘Time for Perfecting Appeal,’ is plain and explicit. Section 1 reads:

‘The period of time after the entry of the order, determination, decision, action, judgment, decree or other matter for review, within which the appeal shall be perfected, is as follow:--

‘(a) In appeals to the supreme court and in appeals from probate courts, within 20 days'-and appeals from the probate court to the circuit court must be taken in conformity therewith.

The docket entries in the circuit court disclose that the motion to dismiss the appeal was filed on February 20, 1932; that on April 10, 1933, an order was entered dismissing the cause for ‘want of progress'; that on August 3, 1933, a motion was made to reinstate it and granted on the following day; that on September 11, 1933, an order was entered ‘Transferring case to Jury Calendar upon Stipulation of Counsel made in open Court’; and that thereafter several stipulations of counsel were filed therein.

A special appearance for the purpose of moving to dismiss is not a submission to the general jurisdiction of the court. Weber v. Wayne Circuit Judge, 217 Mich. 561, 187 N. W. 528. But stipulations thereafter entered into, upon which the court acts in the exercise of its jurisdiction, will be treated as a general appearance. Lapham v. Tarabusi, 247 Mich. 380, 225 N. W. 483. Unless the trial court had jurisdiction of the cause of action and of the parties, he could not place the case on the jury docket, as he did by stipulation of counsel. Without in any way qualifying the effect to be given to the provision for appeal from probate court contained in rule No. 57, we agree with the trial court in its holding that for this reason the motion to dismiss should be denied.

The motion was also based upon the claim that the Kalamazoo College and the Bronson Methodist Hospital did not have sufficient interests in the estate of the deceased to entitle them to make the contest. The petition for probate was filed on February 2, 1931. On March 10, 1931, the First National Bank & Trust Company, of Kalamazoo, filed in said court what purported to be a copy of a last will and...