Price v. Hosmer , 1 Mich. Pr. 84 ( 1896 )

The facts as established by the petition and answer were:

1. That on January 23, 1894, Andrew P. Coulter died intestate, leaving an estate to be administered upon by the probate court of Wayne county.

2. That on,Eebruary 27, 1894, Elizabeth J. Coulter, the widow of the decedent, who was a resident of Dakota, was appointed administratrix of Ms estate; that commissioners on claims were appointed; that relator filed a claim of $1,150.00, or thereabouts, for services claimed to have been rendered the decedent by relator as his house keeper during several years prior to his death; that on November 23, 1894, said commissioners filed their report, in which they disallowed relator’s claim.

[The relator alleged in her petition that, owing to the non-residence of the administratrix, personal service of notice of filing said papers could not be served upon her, and appended to her petition the affidavit of her attorney, in which he reverred that a short time after said papers were filed deponent called the attention of the attorney for the estate verbally 'to such fact, and stated that deponent could, if necessary, file a common count declaration in order that no question might be made regarding the issue in the case, which declaration was afterwards filed. Respondent in his answer averred'a want of personal knowledge as to the facts above set forth, and on information and belief, and as shown by the affidavit' of the attorney for the estate attached to said answer, denied that any notice of the filing of said papers was given by relator or by her attorney. Editor.] [The respondent denied in his answer that said case was regularly noticed for trial, and averred that it was not so noticed for the April, June, or September, 1895, terms of cqurt, nor until the January, 1896, term; and on information and belief, based upon the affidavit of the attorney for the estate appended to said answer, averred that no notice of trial was served upon the attorney for the estate by the relator or her attorney until the notice of trial for the January, 1896, term of court. Editor.]

3. That on January 11, 1895, relator applied to the probate court of Wayne county for an appeal from the decision of the commissioners, and filed the usual bond; that on the same day an order was entered approving said bond, allowing said appeal, and directing that the appellant give notice to said Elizabeth J. Coulter of the filing of said appeal and of the hearing thereof in the circuit court by personal service upon her of said notice.

4. That on March 19, 1895, relator caused to be filed in the office of the clerk of the circuit court copies of the following papers, namely, the commission issued to said commissioners, their report, the application for appeal, the bond on appeal, and the order of the probate court allowing the appeal, all of which were duly certified by the register of probate, and constituted all of the papers filed by relator in said court.

5. That upon the filing of said papers, and on March 19,1895, said appeal was entered up by the clerk of the circuit court upon the record book customarily used for that purpose, and assigned a docket number in the files and records of the court.

6. That the case was on the docket for the January, 1896, term of court; that on the first day of said term the attorney for the estate orally requested the respondent to strike said cause from the docket, and dismiss said appeal; that the attorney for relator not being in court respondent requested the attorney for the estate to prepare a notice embodying his oral application, and serve a copy thereof on the attorney for relator, which said attorney consented to do, with the understanding that he waived no rights by reason of the motion not being entertained by respondent on the opening day of said term of court; that a praecipe for the entry of a motion to dismiss said appeal for the reason that the record was not filed within the statutory 30 days was entered, and notice thereof duly served upon the attorney for the relator:

7. That no evidence that notice of said appeal had been given by relator to the administratrix of said estate, as directed by the probate court, was procured and filed by relator or her attorney in the circuit court, as provided by 3 How. Stat. § 5911.

8. That no attempt to dismiss said appeal was made until 10 months or thereabouts after said papers were filed, nor until the opening of the January, 1896, term of said circuit court.

[Relator in her petition averred that she had a just claim against the estate; that it was not her fault, or because of any laches on her part, that the record was not seasonable filed; that there was practically no delay in • the determining of her appeal, for the reason that, as she was informed and believed, the same could not have been reached sooner than the term when it was dismissed; that she was poor and without any means of support on her part; that she had relied upon her said claim for her support and maintenance, and could not lose it without great distress to herself. Respondent in his answer avers a want of personal knowledge as to the matters last stated. Editor.]

9. That on March 4, 1896, respondent made an order dismissing said appeal.

10. That, as shown by the affidavit of the attorney for the estate attached to respondent’s answer, the administratrix after the dismissal of said appeal proceeded to dose up her trust; that on April 16,1896, she filed her final account; that such proceedings were thereupon had as resulted in the hearing in open court of said account, its allowance!, and the discharge on May 12, 1896, of said administratrix.