140 Mich. 115 | Mich. | 1905
Jacob G. Roberts died in October, 1900, at the age of 88 years, leaving, him surviving, two sons, the relator, H. Brant Roberts, and Carroll Roberts. The latter was at that time an inmate of the insane asylum at Kalamazoo. He left an estate, consisting of lands and money, of the value of several thousand dollars. After the father’s death, relator offered a paper purporting to be the last will of his father to the probate court, and it was allowed. No contest was made there. The alleged will gave nearly all of the éstate to relator. Charles Bidwell was appointed guardian for Carroll Roberts, and took an appeal to the circuit court. Two trials were had, the last one resulting in a disallowance of the will. The case was removed to this court, and was reversed in March, 1904. [Roberts v. Bidwell, 136 Mich. 191.] In December,
Counsel for relator moved the court that the case be dismissed for the following reasons:
1. Because said will contest, or the right to contest the will of said Jacob Roberts, deceased, does not survive.
2. Because said contestant had not diligently prosecuted his appeal.
3. Because said contestant has failed to obey the order of the Supreme Court adjudging costs against him.
4. Because said estate ought to be speedily settled.
The trial judge overruled the motion, and the writ of mandamus is asked to review his action.
The motion is, in effect, a motion to dismiss for want of jurisdiction. The trial judge, in overruling the matter, held he had jurisdiction. Under these circumstances the order of the court cannot be reviewed by mandamus. Stevens v. Harris, 99 Mich. 233; Michigan Mut. Fire-Ins. Co. v. Wayne Circuit Judge, 112 Mich. 270; Steel v. Clinton Circuit Judge, 133 Mich. 698.
The application for mandamus is denied.