Craig v. Wayne Circuit Judge

Kuhn, J. (after stating the facts). Objection is made at this time that improper service was had on Blodgett, and that the service provided for by the court below was unauthorized. This question is raised for the first time by the executors in this court, and we do not see how they are really concerned whether the service upon Blodgett was properly had or not, as it can in no wise affect their rights. So far as the relators are concerned, the proceeding had was purely incidental. We cannot see any merit in tl^e contention of the relators that the order made is an encroachment on the jurisdiction of the probate court. The order made does not interfere with any of the duties which the executors owe the estate or the probate court, nor does it interfere with any step which might be taken by the probate court in the administration of the estate of which the relators are executors. They are simply restrained from turning over whatever share Ralph C. Blodgett might have in the estate until the further order of the court. The chancery court has taken jurisdiction in alimony matters where estates were involved. See Creyts v. Creyts, 143 Mich. 375, 377 (106 N. W. 1111, 114 Am. St. Rep. 656); Pingree v. Pingree, 170 Mich. 36 (135 N. W. 923). Blodgett [109] himself did not appear to contest the proceedings, and does not attempt to excuse his misconduct in refusing to comply with the court’s decree, nor his refusal to support his children. We have said that mandamus is a discretionary writ, and should not issue when it would work an injustice. See Fletcher & Sons v. Circuit Judge, 136 Mich. 511 (99 N. W. 748), and cases therein cited. We are of the opinion that the issuance of the writ in this case would work an injustice, and that it should therefore be denied, with costs to the respondent. Stone, C. J., and Moore, Steere, Brooke, and Person, JJ., concurred with Kuhn, J. Ostrander, J. I think the writ should issue for the reason that the chancery court is without jurisdiction to issue the injunction. Bird, J., concurred with Ostrander, J.