Durand v. Gage

• Citation: 43 N.W. 583,76 Mich. 624
• Court: Michigan Supreme Court
• Decision Date: 18 October 1889
• Parties: DURAND ET AL. v. GAGE, JUDGE.

43 N.W. 583

76 Mich. 624

DURAND ET AL. v. GAGE, JUDGE.

Supreme Court of Michigan

October 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.

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 prevailed, and his claim was fixed at the sum of $524.11. The case came to this court, and was decided October 12, 1888. It was held here that the whole action of the three commissioners was void. It was claimed upon the argument that the item of the claim upon which Smith prevailed in the probate and circuit courts was already pending in the circuit court of Saginaw county upon the appeal first made, which had not been abandoned. This claim was made by the counsel for the administrator. We held that the disagreement of the commissioners upon this item was a virtual finding against it, and that an appeal would lie thereupon, although we did not undertake to decide upon the validity or standing of the appeal that had been taken, and was then apparently pending. See Smith v. Lloyd's Adm'r, 39 N.W. 756. After the filing of the above-named opinion, and on the 17th day of November, 1888, Smith filed in the circuit court for the county of Saginaw a certified copy of the report of the first commission, and of his application for leave to appeal, and of the order allowing the same, and on the 19th day of the same month served upon the administrator the following notice: "Marshall G. Smith vs. The Estate of William Lloyd, Deceased. You are hereby notified that certified copies of records, reports, files, and papers required to be filed in the circuit court to perfect an appeal from the decision of the first commissioners in this cause have this day been filed in the office of the clerk of the circuit court, and said cause is now ready for trial on appeal from first commissioners. CAMP & BROOKS, Plaintiff's Attorneys. Nov. 19, 1888." November 30, 1888, Durand & Brewer, attorneys for the estate, moved the dismissal of the appeal upon four grounds, to-wit: First, the certified copy of the record of the allowance of disallowance appealed from, and other papers necessary to be filed on such appeal, were not filed the next term of the court after said appeal; second, said appeal had been waived or abandoned by Smith, and said appeal dismissed, on his motion, before the filing of said appeal papers in said circuit court; third, said Smith has been guilty of inexcusable laches in entering his said appeal, and filing said appeal papers, in the circuit court, and has failed to prosecute such appeal as required by law; fourth, the circuit court has acquired no jurisdiction to entertain said appeal. Upon hearing this motion, the circuit judge refused to dismiss the appeal. This court is now asked to issue its writ of mandamus requiring the circuit court of Saginaw county to...