Durand v. Gage

• Decision Date: 18 October 1889
• Parties: DURAND ET AL. v. GAGE, JUDGE.
• Court: Michigan Supreme Court

76 Mich. 624
43 N.W. 583

DURAND ET AL.
v.
GAGE, JUDGE.

Supreme Court of Michigan.

Oct. 18, 1889.

Petition for writ by Lorenzo T. Durand, administrator, and William H. Lloyd, sole heir, of the estate of William Lloyd, deceased, to compel the circuit judge of Saginaw county to grant relators' motion to dismiss an appeal from the decision of commissioners of probate.

[43 N.W. 583]

Durand & Brewer, for relators.

Camp & Brooks, for respondent.

MORSE, J.

Application for mandamus. December 25, 1885, William Lloyd died intestate. January 23, 1886, Lorenzo T. Durand was appointed his administrator. On the same day William R. Kendrick and Isaac Delano were appointed commissioners on claims against the estate, and afterwards qualified. Marshall G. Smith filed a claim against Lloyd's estate, consisting of three items. August 25, 1886, the commissioners reported, rejecting two of the items, and disagreeing upon the other; Delano finding against the whole claim. October 5, 1886, Smith petitioned the probate court for Saginaw county for the appointment of a third commissioner to act with Kendrick and Delano, for a revival of the commission, and a rehearing of Smith's claim. The petition was granted, without notice to the administrator, and Archibald Brown appointed such commissioner. These commissioners again met in December, 1886, and the administrator appeared before them, and objected to their jurisdiction for two reasons: First, because of the want of notice to him of the application for and appointment of the third commissioner; second, because of the steps taken by Smith to appeal from the report of the two commissioners. It appears that on the 23d day of October, 1886, and within the time allowed by statute, Smith had filed his application for appeal in the probate court, and filed his bond on appeal. An order was made by said court allowing the appeal, and the required notice was duly served upon the administrator. The administrator claimed that an appeal had been taken, and the claimant answered that certified copies of the report of the commissioners, and the order allowing the appeal, had not yet been filed in the circuit court, and that therefore jurisdiction of the claim was still in the probate court, and the commissioners were authorized in law to act upon it. A majority of the commissioners decided to hear the case, and in May, 1887, allowed Smith's claim at the sum of $533.20. The administrator thereupon appealed to the circuit court. March 8, 1888, this appeal was tried in the circuit. Smith...