Palmer v. Peck ( 1892 )

Per Curiam.

The relator, one of the heirs at law of Eebecca Palmer, petitioned the probate judge to cite Annis Campbell to appear before the court, and submit to an examination touching effects of the estate in her hands, under sections 5876, 5877, How. Stat. The parties appealed in probate court, and Mrs. Campbell offered to answer in writing any written interrogatories propounded, but the judge made an order requiring her to submit to an oral examination. From this order an appeal was taken to the circuit court. The relator moved to dismiss the appeal, on the ground that the order made was not appealable. This motion was denied, and the present application is for mandamus to compel the circuit judge to dismiss the appeal.

We hold that the order is not appealable. It could not have been intended that such proceedings in aid of administration could be arrested by appeal. See Walker v. Hull, 35 Mich. 488; Moore v. Moore, 48 Id. 271; Goss v. Stone, 63 Id. 319.

But we are all of opinion that the order made by the probate judge was unauthorized. The statute provides, in terms, that the interrogatories and answers shall be in writing (section 5877); and we cannot, without doing violence to the language, hold that the act of reducing the testimony to writing, as the examination proceeds, meets the requirements of the statute. See Martin v. Clapp, 99 Mass. 470. As we hold the order not appeal-able, we grant the writ; but, as the relator was not entitled to proceed under this order, the only effect will be to repossess the probate court of the matter.

No costs will be allowed on this order.