Lloyd v. Circuit Judge

1 McGrath 349, 56 McGrath 236

• Court: Michigan Supreme Court
• Decided: April 9, 1885
• Status: Published

Opinion

To vacate an order made, pending the trial of an appeal from an order of the Probate Court disallowing a will, discharging the jury and affirming the disallowance of the will by the Probate Court, on the expressed ground that the act under which the proceedings were taken was unconstitutional.

Granted April 9, 1885.

Relator presented his will for probate and allowance during his lifetime, under Act No. 25, of the Laws of 1883.

Held, that as the order of the Circuit Court is a final order affirming the action of the probate judge, upon which, if the proceeding is judicial, a writ of error would lie to this court, such is the proper remedy; that mandamus is a proper process for setting a court in motion, but not for reviewing and setting aside its affirmative and judicial action when another suitable and judicial remedy exists, but as the- parties have been fully heard and the reasons for declining to dispose of the case on the merits at this time would be only technical, the matter of form will be overlooked; that Act No. 25 of the Laws of 1883 is inoperative, but that the order entered by the Circuit Court was improper and extra-judicial; that an order denying the probate of the will should not be affirmed without a hearing had on the merits, and that the proceedings should have been quashed or dismissed.