Koss' Estate, In re
| Decision Date | 06 July 1954 |
| Docket Number | No. 14,14 |
| Parties | In re KOSS' ESTATE. KOSS v. KOSS. |
| Court | Michigan Supreme Court |
Norman W. Stern, Detroit, for appellant.
Thomas A. Jacques, Detroit, for appellee.
Rottman, Siegel & Sugar, Detroit, for Paul Koess, Administrator.
Before the Entire Bench, except Butzel, C. J.
In the matter of the estate of Mary B. Koss, deceased, Adolph J. Koss, referred to as appellant herein, appeals from an order of the circuit court for Wayne county denying his motion to dismiss the appeal of Clement J. Koss, appellee, from the probate court for the county of Wayne. Appellant contends that the circuit court was in error in granting appellee's petition to allow or approve of a 'tardy service' of the claim of appeal from the probate court after expiration of the time for such service set by court rule and without a previous extension of time for such service and also in not filing a certified copy of the record in the circuit court within 30 days as provided by statute.
In the probate court for the county of Wayne the claim of appellant against the estate of Mary B. Koss was recommended for partial allowance in the sum of $16,073.63 by a referee whose report was duly filed. On June 6, 1952, after the report and objections were considered, and order was entered by the judge of probate approving the report of the referee and ordering payment of the debts and closing of the estate within one year from that date.
On June 25, 1952, appellee, a son and heir-at-law of decedent, filed a claim of appeal to the circuit court from the allowance of the claim of appellant and on that date an order of the probate judge was entered directing that notice of the appeal be given to Adolph J. Koss by personally serving a copy of the claim of appeal upon him or his attorney of record. The record before us does not disclose the name of the attorney of record in the probate court but no question is raised in that respect. Eight days later a copy of the claim of appeal was placed in the hands of the sheriff of Wayne county for service upon appellant. Service was made by the sheriff on July 29, 1952, after the expiration of the 20-day period provided for service by statute and court rule. On August 8, 1952, appellee filed in the circuit court a petition signed only by his counsel and supported solely by the affidavit of his counsel requesting an order allowing what he termed 'tardy service of claim of appeal.' Such order was entered ex parte on August 18, 1952. The certified record from the probate court was not filed in the circuit court until August 13, 1952.
On August 30, 1952, appellant filed a motion to set aside the order of the circuit court authorizing 'tardy service' of the claim of appeal and, in support of that motion, filed an affidavit which stated that appellant was available for service of the claim of appeal from June 25, 1952, through August 16, 1952, and could have been served had diligent effort been made to do so. On September 19, 1952, appellant filed a motion to dismiss the appeal to the circuit court on the ground that the circuit court lacked jurisdiction, citing in support of his position C.L.1948, § 701.40, Stat.Ann. § 27.3178(40), and C.L.1948, § 701.41, Stat.Ann. § 27.3178(41). The circuit court denied both motions and from such denials, upon leave granted, the appellant has appealed.
Basing his argument upon statutory grounds, appellant asserts that the failure of appellee to serve notice of the claim of appeal upon him within 20 days of the order of June 25, 1952, as required by C.L.1948, § 701.40, Stat.Ann. § 27.3178(40), and the failure to file the certified record in the circuit court within 30 days as required by C.L.1948, § 701.41, Stat.Ann. § 27.3178(41) resulted in a lack of jurisdiction in the circuit court, at least as to the parties, and that the circuit court was, therefore, in error in denying his motion to dismiss. In support of his contention appellant cites In re Wilkie's Estate, 314 Mich. 186, 22 N.W.2d 265, in which this court held that service of the notice of claim of appeal in the manner directed by court order was mandatory and essential to vest jurisdiction over the parties in the circuit court. Appellant also cites Sokup v. Davis' Estate, 206 Mich. 144, 172 N.W. 428, in which this court held that the statutory provision requiring service of notice of appeal within the prescribed time was mandatory and affected the jurisdiction of the circuit court. Appellant also cites Wetzel v. Hogopian, 313 Mich. 524, 21 N.W.2d 839, and Masonite Corp. v. Martin, 314 Mich. 411, 22 N.W.2d 757, concerning Court Rule 76 (1945), to the effect that Court Rule 75, providing for appeals from the probate court for the county of Wayne, does not dispense with the necessity for compliance with statutory provisions in regard to appeals from probate courts in general. Appellee's contentions do not appear as he has not filed a brief in this court.
In 1949, Court Rule 75 was amended and now provides:
'In each judicial circuit with a population of 500,000 and upwards, appeals to the circuit court from any probate court or any probate judge, shall, in all civil cases (except condemnation cases), be exclusively governed by the following sections, unless otherwise provided in this rule, any present or future inconsistent or additional statutory requirements to the contrary notwithstanding'. (Emphasis added.)
The Supreme Court may establish rules of procedure governing appellate practice in the courts of this State. Michigan Constitution of 1908, Art. VII, § 5; C.L.1948, § 691.21, Stat.Ann. § 27.111. The propriety of the circuit court's action in denying appellant's motion to dismiss must be determined under Court Rule 75, as amended, and without express regard to any general statutory provisions controlling appeals from probate courts.
In the 1949 amendment, section 4(a) of Rule 75 was amended to read as follows:
'Within the time limited for taking an appeal, a claim of appeal in the form hereinafter provided shall be filed with the lower court; and upon such filing, the circuit court shall be deemed vested with jurisdiction of the matter appealed from, and all requirements thereafter shall be deemed directory merely, * * *.'
The italicized portion above was added to section 4(a) by the 1949 amendment to Rule 75. Section 4(b) of Rule 75 provides for service of notice of the claim of appeal within 20 days of the order directing the manner of such service. Such requirement is not a directory requirement referred to in section 4na). In view of the Wilkie case, supra, holding that service of the notice of claim of appeal is the means whereby the circuit court attains jurisdiction over the parties to the appeal (although filing claim of appeal vests jurisdiction of the subject matter in the circuit court), it should not now be held that the...
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