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

Kerrigan v. Saginaw County Drain Commissioner

12 Mich. App. 127 | Mich. Ct. App. | 1968

Concurrence Opinion

Holbrook, P. J.

(concurring). Plaintiff in her appeal to the probate court claimed that she was an owner of a part of the fee and that she had not been served with notice in accord with PA 1956, No 40, § 154, as last amended by PA 1965, No 138 (MCLA § 280.154, Stat Ann 1968 Cum Supp § 11.1154). Defendant claims that plaintiff’s name did not appear upon the last assessment roll. The statute required *129notice to be given by mail only to a “person whose name appears upon the last city or township tax assessment roll as owning land within the special assessment district, at the address shown on snch roll, and if no address appears thereon, then no notice need be mailed to such person.” The plaintiff, in any event, failed to make her application in accordance with CLS 1961, § 280.155 (Stat Ann 1960 Rev § 11-.1155), i.e.-, within Í0 days after the date of review,' August 15,1966. The application was made September 14, 1966. The'probate judge made an ex parte order purportedly pursuant to CLS 1961, § 280.156 (Stat Ann 1960 Rev §11.1156) on September 16, 1966, and thereafter defendant filed a motion to dismiss which was not acted upon. It would appear that the proper method of appeal by plaintiff, in this case, would have been by certiorari as provided in-CLS 1961, § 280.161 (Stat Ann 1960 Rev § 11.1161). This, plaintiff failed to do. '

• I agree that the writ of mandamus requiring defendant to proceed in accord with the probate court’s ex parte order should not have been granted.

Lead Opinion

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.