Jerome v. Donovan
| Decision Date | 06 May 1898 |
| Court | Michigan Supreme Court |
| Parties | JEROME ET AL. v. DONOVAN, CIRCUIT JUDGE. |
Application by Frank H. Jerome and others for mandamus to J. W. Donovan Wayne circuit judge. Granted.
F. A Baker, for respondent.
It appears that the will of James W. Daley was admitted to probate in the Wayne probate court April 20, 1897. On May 1st following, Thomas C. Fitzpatrick et al. took an appeal from such order, but failed to perfect it by filing in the circuit court within 30 days thereafter a certified copy of the record or proceedings appealed from, as required by section 6782, 2 How. Ann. St., which provides, among other things that "in case the record herein required to be filed in the circuit court shall not be filed in such court within the time herein directed, such appeal shall cease to be of effect, and the order or decree so appealed from shall stand as though such appeal had not been taken." The relator here was named as executor in the will, and, after the will was allowed in probate court, filed his bond as such executor, and letters testamentary were issued to him. He thereupon entered upon the discharge of his trust. On July 19, 1897, he filed in the probate court the certificate of the clerk of the circuit court that the record of the proceedings in the probate court and the appeal therefrom had not been filed in the circuit court. On February 21, 1898, Thomas Fitzpatrick filed in the Wayne circuit court a petition for an allowance of an appeal, under the provisions of section 6784, 2 How. Ann. St., which provides that "if any person aggrieved by any act of the judge of probate shall, from any cause, without any default on his part, have omitted to claim or prosecute his appeal according to law, the circuit court, if it shall appear that justice requires a revision of the case, may on the petition of the aggrieved party and upon such terms as it shall deem reasonable allow an appeal to be taken and prosecuted with the same effect as if it had been done seasonably." The circuit court allowed the appeal, and this application is for a mandamus to compel the respondent to set aside that order and dismiss the appeal.
The only allegation in that petition for the allowance of the appeal as to the merits of the case is as follows: "Your petitioners have been advised by their said attorney, after having made to him a full and fair statement of their case that they have a good defense upon the merits to the application for the allowance of said will, and your petitioners believe such advice to be true." It is shown by the petition that the petitioners relied upon their attorney to see that the appeal was filed in the circuit court within the time allowed by the statute, and that they were in no wise at fault that such papers were not filed. This would be a sufficient excuse, under the rule laid down in Merriman v. Peck, 96 Mich. 608, 55 N.W. 1021, and cases there cited. But the question yet remains whether there was any showing made in the court below that "justice requires a revision of the case." As was said in that case: "Under this section, something more than an excuse for his default is necessary, and that is *** that justice requires a revision of the case." In the present...
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...v. Davidson, supra; Capen v. Skinner, 139 Mass. 190, 29 N. E. 651;Sanborn v. Mitchell, 94 Mich. 519, 536, 54 N. W. 295;Jerome v. Judge, 117 Mich. 19, 75 N. W. 143. The field of discretionary consideration in allowing appeal after absolute right is lost is, as to this branch of the question,......
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...in that state seem to be in harmony with a liberal rule of construction. Merriman v. Peck, 96 Mich. 603, 55 N. W. 1021;Jerome v. Donovan (Mich.) 75 N. W. 143. In this last case it was held that a mere affidavit of merits is an insufficient showing that “justice requires a revision of the ca......
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