Flowers v. Wayne Probate Judge

Moore, J. We have two motions before us which were argued as one and will be considered in the same way. The first of them is certiorari to Hon. John H. Goff, circuit judge, to review his order allowing writ of mandamus directed to judge of probate, defendant herein, requiring him to allow the plaintiff to appeal from his decision on the final account of plaintiff as executor in the matter of the estate of Jane Arm [201] strong, deceased, and to approve the bond filed therein. The other motion is one to dismiss the writ of certiorari as improvidently issued because the defendant had no interest in-the litigation. The facts are not in dispute. A .supplemental final account on October 3, 1918, showing .a balance due said estate of $5,009.59 was filed by Mr. Flowers. On January 3, 1919, defendant rendered his decision finding the sum of $8,827.39 due from the said executor to said estate. January 20, 1919, William Look, attorney for the executor, left with the probate court a written notice and reasons for appeal from the said order of the probate court, and a bond on appeal in the sum of $300, signed by Frederick T. Ranney, as surety. Mr. Ranney did not justify as surety. The bond was submitted in the usual course of business to defendant, as probate judge, for approval, at which time defendant discovered that the surety had not justified, defendant caused said bond, together with the notice and reasons for appeal, to be mailed to the attorney for said executor on the afternoon of the 23d of January. These papers came to Mr. Look on the morning of the 24th day of January, and on the same day the attorney for the executor tendered to defendant, as probate judge, for approval and filing, a proposed bond on appeal in the sum of $300, with Frederick T. Ranney, who had justified as surety, and on said mentioned date defendant refused to approve the said bond. On January 31, 1919, Mr. Flowers, executor, filed a petition in the probate court, seeking an extension of time to make and perfect an appeal from the aforesaid order, and upon the petition coming on to be heard on February 27, 1919, defendant declined to grant an extension of time. On March 6,1919, Mr. Flowers caused a petition to be filed in the circuit coürt for the county of Wayne, praying that a writ of mandamus issue to defendant. Praying among other things as follows: [202] “that a writ of mandamus may issue to the Honorable Edward Command, judge of probate as aforesaid, commanding him to allow and approve of your petitioner’s claim and bond on appeal or that he grant the extension of forty days for taking and perfecting such appeal as provided by section 1, chapter 65 [3 Comp. Laws 1915, § 14145 et seq.~}, entitled ‘Of Appeals From the Probate Court,’ and that such other order may be had in the premises as justice may require.” An answer was filed by the defendant in which the following was stated: “On February 27th, 1919, your petitioner declined to grant an extension of time to file notice and claim of appeal, and bond on appeal and upon the facts and evidence before respondent, respondent shows that he was warranted and legally justified in so doing. Respondent further shows that relator had had a full and fair hearing upon the allowance of his final account, and the determination of the amount due from relator to said estate was just and equitable and in accordance with the facts and evidence in the case, and that relator’s disobedience of the repeated orders of the probate court and relator’s dissipation of the assets of said estate and mismanagement'of said assets fully justified and legally warranted the discretion of respondent in declining to grant an extension of time as prayed by relator; and that it did not appear to respondent that justice required a revision of the aforesaid order of the probate court.” After a hearing the court ordered defendant, among other things, to forthwith allow the said claim and notice of appeal, and also approve of the bond in the sum of $300. Nothing was said in the order about whether the probate judge should have granted an extension of time in which to grant an appeal. In section 1 of chapter 65 of the judicature act (3 Comp. Laws 1915, § 14145), are the provisions relating to the taking of appeals to the circuit court from the probate court, and to the granting of the extension of time by the probate judge for the taking of [203] appeals. The bond referred to in that section is mentioned in detail in section 14152. It would have been a proper thing to do for the probate judge, instead of returning the papers filed as aforesaid to the attorney in the afternoon of the last day for taking an appeal, to have had his register call the attention of the attorney to the defect in the bond and give him an opportunity to correct the defect if he could within the 20 days, but this was not done and we feel bound to say that the appeal was not perfected within the 20 days, the probate judge .not having been requested to, nor having fixed the amount in which such bond should be given (see Sokup v. Davis’ Estate, 206 Mich. 144), and that the order of the circuit judge in that respect is wrong. We also think, upon the showing made, that it was an abuse of discretion on the part of the probate judge to refuse an extension of time in which to make an appeal, and if the circuit judge had so held we should have approved his order, but he did not so hold. The defendant has such an interest in the proceeding as to authorize him to bring certiorari and the motion to dismiss the certiorari proceedings is overruled. We are constrained to hold that the order of the circuit judge for mandamus must be reversed and vacated with costs to the defendant. This ruling is made without prejudice to the right of Mr. Flowers to petition the circuit court for a delayed appeal under the provisions of section 14156, 3 Comp. Laws 1915. Sharpe, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred with Moore, J.