Kerrigan v. Saginaw County Drain Commissioner , 12 Mich. App. 127 ( 1968 )

Quinn, J.

Defendant appeals from the trial court’s grant of writ of mandamus requiring defendant to comply with an ex parte order of the probate court issued on plaintiff’s appeal from the order and review of apportionments made by defendant in a drain proceeding. The latter appeal was pursuant to CLS 1961, § 280.155 (Stat Ann 1960 Rev § 11-.1155). Defendant moved to dismiss the appeal as untimely, and the probate court has never ruled on that motion. On this record, plaintiff has no clear legal right to the enforcement of the ex parte order of the probate court, nor does defendant have a legal duty to perform it. Janigian v. City of Dearborn (1953), 336 Mich 261. The writ of mandamus should not have been granted.

■ Reversed and plaintiff’s complaint for mandamus is dismissed, with costs to defendant.

McIntyre, J., concurred with Quinn, J.