Schmid v. Wayne Circuit Judge ( 1941 )

Plaintiff herein seeks our writ of mandamus directing the circuit court for the county of Wayne to vacate an order allowing a special appeal.

October 10, 1940, Charles Kieler filed a petition in the probate court for the county of Wayne for determination of the heirs of Frederick N. Kieler, deceased, averring that he was a nephew and an heir at law. December 4, 1940, the probate court adjudged Lula Schmid to be the daughter and sole heir of the deceased. December 26, 1940, Norman J. Kieler, also a nephew of the deceased, took an appeal as of right to the circuit court. Upon motion, that appeal was dismissed because not taken within 20 days after entry of the order on December 4, 1940, as required by Act No. 288, chap. 1, § 36, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 16289-1 [36], Stat. Ann. 1940 Cum. Supp. § 27.3178 [36]). Thereupon Norman J. Kieler petitioned the circuit court to grant a special appeal and, February 4th, the court allowed such an appeal upon filing a $200 appeal bond.

Plaintiff herein claims that the petition for special leave to appeal did not set forth facts sufficient to excuse the applicant from fault in having failed to claim a timely appeal or facts from which "the court could judicially determine 'that justice requires a revision of the case,' " as is required by chap. 1, § 43, of the above-mentioned act of 1939 (Comp. Laws Supp. 1940, § 16289-1 [43], Stat. Ann. 1940 Cum. Supp. § 27.3178 [43]).

The application for leave to appeal was supported by affidavits of the attorneys who filed the petition in behalf of the nephews for determination of the heirs and took part on that hearing in the probate court. The attorneys were directed to take an appeal if the decision in the probate court was adverse. The attorneys, under misapprehension that the probate court order was entered on December 6th, instead of the 4th, took the appeal which was dismissed. The attorneys acted in good faith under a misapprehension as to the date of the entry of the order. Under such circumstances petitioner for leave to appeal was not chargeable with culpable neglect in so relying upon his attorneys to take the appeal as instructed.Capwell v. Baxter, 58 Mich. 571; Merriman v. Jackson CircuitJudge, 96 Mich. 603; Jerome v. Wayne Circuit Judge, 117 Mich. 19; Frank v. Union Trust Co., 239 Mich. 646; Carras v. BungalowSandwich Shoppe Co., 257 Mich. 467. The statute, however, requires not only the mentioned showing but a finding by the court, if the appeal is allowed, "that justice requires a revision of the case." There was no showing by affidavit or otherwise under which the court could make the essential finding "that justice requires a revision of the case."

The statement of petitioner in the application for leave to appeal that "he has a good and meritorious claim and that the ends of justice require that he be allowed to appeal to the circuit court for the county of Wayne from said order so that his interest and interests of the other heirs at law be well protected, * * * and that the interests of justice require that he be now allowed to take such an appeal to the circuit court, county of Wayne," was but an assertion wholly without stated facts from which the court might reach such a conclusion.

The following statement in the affidavit of his attorney that "deponent further says that he is of the opinion that said petitioners have a good and meritorious claim against such estate and the petitioners not being at fault and the fault being with this deponent justice requires that the prayer of said petition for special leave to appeal be granted," carried no showing of facts and falls squarely within the holding of insufficiency stated in Jerome v. Wayne Circuit Judge, supra.

The record does not disclose what issues of fact or law were involved in the probate court hearing or any reason why, if Lula Schmid is the daughter of the deceased, the nephews have any claim of right to be adjudged heirs at law.

For this reason the writ requiring the circuit court to set aside the order allowing the special appeal is granted, with costs to Lula Schmid.

SHARPE, C.J. and CHANDLER and BUTZEL, JJ., concurred with WIEST, J.