Montgomery v. Wayne Circuit Judge

279 N.W. 889 | Mich. | 1938

Mandamus to require the respondent to order security for costs in the matter of the estate of Adam Jodys, deceased.

Adam Jodys died in Wayne county, Michigan. His estate was administered, final account allowed in 1934, and the estate made ready for distribution. Various persons, residents of Lithuania, claiming to be heirs, caused their appearance to be entered therein and depositions were taken to establish their interest in the estate. That case came to this court In reJodys' Estate, 282 Mich. 48. After the case was remanded to the circuit court, petitioner moved for security for costs. The trial court refused to order it. Application for mandamus was made, an order to show cause issued, return filed, and the cause placed at issue.

Petitioner relies upon 3 Comp. Laws 1929, § 14071 (Stat. Ann. § 27.738), which requires nonresident plaintiffs to file security for costs as a condition precedent to the prosecution of suit, providing motion therefor is made within the time specified by statute. This statute has no application to this case. It deals only with suits between litigating parties. The motion for security for costs must be made within 15 days after service of declaration or bill of complaint. In this case, there is no declaration or bill of complaint and no suit brought. The proceeding is a proceeding in rem, for the distribution of the estate to those claiming to be entitled lawfully thereto. Such persons are not plaintiffs and the petitioner is not a defendant. The petitioner is an officer of the probate court whose duty it is to distribute the property to whomsoever shall be entitled thereto; and, if the claimants are entitled to the estate, it is her duty to distribute it to them. Allison v. Smith,16 Mich. 405; People, ex rel. Frazer, v. Wayne Circuit Judge,39 Mich. 198; Stevens v. Hope, 52 Mich. 65; In re Brown's Estate,198 Mich. 544; In re Estate of Meredith, 275 Mich. 278 (104 A.L.R. 348).

"The proceeding to obtain a decree of distribution is not in the nature of a suit between party and party in which one seeks to recover a right withheld by the other; but is analogous in its character to a proceeding in rem, in which a decision between the parties before the court settles the rights of all parties to the property in question." 24 C. J. p. 508.

The trial court was right in refusing to order security for costs. Mandamus denied, with costs.

WIEST, C.J., and BUTZEL, BUSHNELL, SHARPE, CHANDLER, NORTH, and McALLISTER, JJ., concurred.