Durand v. Circuit Judge , 76 McGrath 624 ( 1889 )

To compel the dismissal of an appeal from the Probate Court.

Denied October 18, 1889.

A claim had been disallowed by commissioners on claims. Claimant, after the allowance of an appeal, but before filing the proper papers in the Circuit Court, secured the appointment of -a third commissioner under Act No. 109, Laws of 1883, and the commission so constituted allowed the claim. On appeal by the administrator this action was held void and after filing the proper transcript claimant sought to proceed upon his appeal. The administrator moved to. dismiss.

Held, that the writ is not one of right, and the court is not •disposed to use it on technical grounds to deprive a suitor of his ■day in court, and that prior to the passage of Act No. 175, Laws of 1887, the Circuit Court had power to entertain an appeal, although the transcript was not filed within the time limited by How. Stat., Sec. 5911.