Jamison v. Isabella Circuit Judge

Clark, J. Must an executor appealing from the decision and report of commissioners on claims file a bond on appeal in accordance with section 14152, 3 Comp. Laws 1915? The circuit judge answered this in the negative, and declined on motion to dismiss such an appeal taken by an executor without filing the bond. We are asked by mandamus to cause such dismissal. The circuit judge and counsel rely upon the case of Winter v. Winter, 90 Mich. 197, decided in 1892, where it was held that an executor appealing from a decision of commissioners on claims was not required to file a bond. But there is an important difference in the statutes of that day and the present. Then there was a special statute relating to appeals from decisions of the commissioners (2 How. Stat. §§ 5907, 5908), by which a bond on appeal was required of an appealing claimant but not of an appealing executor. At that time other appeals from probate court were provided for by 2 How. Stat. §§ 6779 and 6780 et seq. Sections corresponding to sections 5907, 5908, are [583] found again under the head “of appeals from the decision of commissioners” in the compilation of 1897 as sections 9386 and 9387. And sections similar to 6779 and 6780 appear in the compilation of 1897 as sections 669 and 670. But by chapter 65 of the judicature act of 1915 a uniform procedure respecting appeals from probate court was provided (Cummins and Beecher, Judicature Act, p. 45). The old section (5908, 2 How. Stat., and 9387, 3 Comp. Laws 1897) was dropped and the other sections were substantially re-enacted. Appeals from probate court are now governed by 3 Comp. Laws 1915, § 14145 et seq. The statute is plain. It now provides no exception in favor of an executor in respect to a bond in appealing from the decision of commissioners on claims, as did the statute in force when the opinion in the Winter Case was written. The question first suggested must, be answered affirmatively. See Sokup v. Davis’ Estate, 206 Mich. 144; Newell v. Kalamazoo Circuit Judge, 215 Mich. 153. The writ will issue. Fellows, C. J., and Wiest, Bird, Sharpe, Moore, and Steere, JJ., concurred. The late Justice Stone took no part in this decision.