Hyatt v. Lane

1 Mich. Pr. 14

• Court: Michigan Supreme Court
• Decided: April 15, 1896
• Status: Published

Opinion

The facts as established by the petition and answer were as follows:

1. That relators are residuary legatees under the will, horn the allowance of which an appeal was taken, April 22,1805

2. That none of the papers required by 3 How. Stat. see. 6782, to be filed in the circuit court were filed until July 9,1895, at which time all of such papers were filed in said court.

3. That on November 25, 1895, no notice of said appeal having been given to the relators they appeared specially by counsel before said circuit court for the sole pru-pose as stated of raising the question of the jurisdiction of said court, and moved the court to dismiss said appeal because of the failure of the appellant to give relators notice thereof;that an order was made requiring such notice to be given, and that in default thereof said appeal to be dismissed.

4. That the appellant applied for mandamus to set aside said order, which writ was denied for reasons setforth in Strang v. Circuit Judge, 65 N. W. Rep. 968.

5. That said notice having been given, relators, on March 9, 189(5, moved the circuit court to dismiss said appeal for the reason that the appellant had failed to file in the circuit court within thirty days after taking Iris appeal, the certified transcript required by 3 How. Stat. sec. 6782, to be filed in said court; that said motion was denied, for the reasons, stated in the answer of the respondent:

a — That the motion came too late, said transcript having been filed before said motion was made:

b — That it was the duty, of the relators when they made their first motion to have given all the reasons upon which they relied for dismissing said appeal, and not doing so, they waived the objection now sought to be raised.

c. — That the question as to the jurisdiction of the circuit court over said appeal is res judicata, such jurisdiction having-been affirmed in Strang v. Circuit Judge 65 N. W. Rep. 968.