Stapleton v. Macomb Circuit Judge

Blair, J. The city of Mt. Clemens, incorporated under Act No. 215 of the Public Acts of 1895, instituted proceedings in the probate court under chapter 25 of said act, as amended by Act No. 136 of the Public Acts of 1899, for the widening of Highland avenue in said city. The jury impaneled in the proceedings determined there was a necessity for widening said avenue and for taking relator’s land therefor and awarded relator $275 as compensation for his lands so taken. The verdict of the jury was rendered on the 21st day of June, 1907, and was duly confirmed on the 15th day of July, 1907. Section 15 of said chapter 25 provides that: “Any party aggrieved by the judgment of confirmation hereinbefore mentioned, may, within ten days after the entry thereof, appeal therefrom to the circuit court of the county, by filing with the probate court a claim of appeal,” etc. Section 12 of said chapter 25 provides that: “Any such judgment of confirmation shall be final and conclusive as to all parties not appealing therefrom within the time hereinafter provided.” On the 27th day of August, 1907, relator filed in the circuit court a petition for leave to appeal from said judgment of confirmation, in accordance with the provisions of section 674, 1 Comp. Laws, authorizing the circuit court to allow appeals from the acts of the probate judge where the person aggrieved thereby has omitted to claim an appeal without default on his part. The circuit court denied the petition and such denial is the basis of the application to this court for the writ of mandamus. The claim of relator is stated by counsel in his brief, as follows: “By the amendment of 1899, above referred to, jurisdiction in these cases was given to the probate courts and it is the claim of relator that section 674 of general probate law controls in street opening cases and has same effect as other sections of general probate law.” [212] The application of the general provisions of the laws regulating procedure in the probate courts to special proceedings for the condemnation of land was denied by this court in the case of United States Gypsum Co. v. Kent Circuit Judge, 150 Mich. 668. Writ denied. Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.