2 Mich. 337 | Mich. | 1852
The questions arising in this case were reserved for our opinion by the Judge of 'the Circuit Court of the County of Ingham.
The transcript in this case shows that a claim, founded on a judgment rendered in the Supreme Court of the State of New York, in favor of one John Dickinson and John F. Whitney, against Calvin P. Eaton, was presented for allowance, to the commissioner's on the estate of Eaton, and by them rejected. In order that the judgment of the commissioners might be reviewed by the Circuit Court, an appeal was taken, which it is contended by the appellees,was irregular, for several reasons. It is fust objected that no bond, such as the law requires, was given by the appellant. The revised statutes, section 20, page 293, provide that “ any executor, administrator or creditor, may appeal from the decision of the commissioners, to the Circuit Court for the same county, if application for such appeal shall be made in writing, filed in the Probate Office within sixty days after the returning of the report of the commissioners.” In case of an appeal by a claimant, against the estate, the 21st section provides that “he shall within the time aforesaid, and before such appeal shall be allowed, give a bond to the adverse party, with sufficient surety, tb be approved of by the Judge of Probate,
The authority to allow an appeal, it is very clear, depends upon the giving of a bond by the claimant, with sureties to be approved by the Judge of Probate. If the bond is not given, that authority is not called into exercise, and the order allowing the appeal is nugatory. It is equally clear that the application for the appeal must be made in writing, by the creditor whose claim may have been disallowed. The application thus made, lays the foundation for the future action of the Judge of Probate, in respect to the allowance or disallowance of the appeal. The bond, it is to be observed, is filed in the Probate Office, and is not required to be certified to the Circuit Court, by the 24th section. The only knowledge we possess in relation to the bond, is contained in an affidavit of Alfred Hall, one of the administrators off Eaton. This affidavit was filed in support of the motion to quash the appeal, and purports to set out a true copy of the bond filed by the appellant, with the Judge of Probate. This bond appears to have been executed by “Leander Chapman, as principal, and Edwin S. Lathrop, as surety,” and.is without date. It recites that “Whereas the said Leander Chapman has this day made application in writing, for an appeal' from the decision and report of Peter Low, Henry Hürd, and Abram Wilcox, commissioners on the estate of said deceased, filed in the Probate Office of the County of Ingham, on the day of October, 1849:” “How, therefore,” &c., &c. There is -not the slightest evidence,, either in the bond or its recitals, connecting Dickinson with any-proceeding had before the commissioners, or showing that he was a creditor of the estate, or that the claim in which he was a party, or interested, had been passed upon by the commissioners. On the contrary, the recitals in the bond, show that Chapman was- the appellant, and that.
If the appeal in the case before us is ineffectual, I know of no reasons why the Circuit Court may not determine the question of jurisdiction submitted to it. That tribunal is not called upon to review an erroneous determination of the Court of Probate, in the exercise of its judicial functions, but to declare, when the facts are properly presented, whether they were sufficient to justify any proceeding by the Judge of Probate, under the provisions of law relating to appeals from commissioners of insolvent estates, to the Circuit Court. If the determination of the Judge of Probate was nugatory, then no appeal, in point of law, was ever taken, and the Circuit Court has no jurisdiction of the cause. The most appropriate course to be pursued, to avail himself of the objection insisted upon by the appellee, was to procure a certified copy of the bond, inasmuch as the original is by law directed to be lodged in the Probate Office. In the case before us, what purports to be a true copy of the bond, appears by the affidavit of the administrator. As no objection was made to the manner in which the bond was brought to the notice of the Court, and especially as the error, if any existed, could have been corrected by the appellant, by procuring a certified copy from
A case in point is to be found in 16 Pick., 203, (Leach vs. Drake.) The Supreme Court of Massachusetts held in that ease, that as the bond in effect had not been given and filed in the probate office by the appellant,” but was executed by Lathrop and Torrey, and who did not appear to be the attorneys of the appellant-, and as the bond did not profess to bind him but themselves, dismissed the appeal.
It is unnecessary to notice the other grounds relied upon in argument, as a failure to give the bond is fatal to the proceedings.
It must be certified to the Circuit Court of the county of Ingham, as the opinion of this Court, that the motion to dismiss the appeal should be granted.