SOKUP v. DAVIS' ESTATE.

1. COURTS-APPEAL FROM PROBATE TO CIRCUIT COURT-NOTICE, STATUTES-MANDATORY PROVISION-WAIVER.

Where notice of appeal to the circuit court from the probate court was not served on the adverse party within 15 days from the date of the order directing the manner of such service, as required by section 9, chap. 65, of the judicature act (3 Comp. Laws 1915, § 14153), the circuit court was without jurisdiction to hear the case or render a judgment; said section of the statute being mandatory, and there being no claim that service of notice was waived.

2. SAME IMPEACHMENT OF RECORD-PRACTICE.

On such appeal, no certificate of the probate judge or affidavit of any person may be considered as impeaching the record of the probate court; the proper practice requiring an amendment of the return if the facts are not therein stated truly.

3. SAME-APPROVAL OF APPEAL BOND-TIME.

Where the appeal bond was not approved by the probate judge within 20 days after the return of the commissioners on claims, as required by section 3, chap. 65, of the judicature act (3 Comp. Laws 1915, § 14147), and the time was not extended by the probate judge, the circuit court was without jurisdiction to hear the case.

4. SAME JURISDICTION-WAIVER.

Jurisdiction of the circuit court was not waived by defendant by taking part in the trial, where repeated motions were made to dismiss the appeal, and at the trial objection was made to the introduction of any evidence by plaintiff.

Error to Kent; Brown, J. Submitted April 24, 1919. (Docket No. 55.) Decided May 29, 1919. Rehearing denied July 18, 1919.

Frank J. Sokup presented a claim against the estate of Albert L. Davis, deceased, for services rendered. The claim was disallowed by the commissioners, and

plaintiff appealed to the circuit court. Judgment for plaintiff. Defendant brings error. Reversed, and no new trial ordered.

C. Sophus Johnson (Louis T. Herman, of counsel), for appellant.

Charles E. Ward, for appellee.

STONE, J. This case involves questions of practice in an appeal from the disallowance of a claim by commissioners on claims in the probate court. On October 6, 1917, the plaintiff filed his claim for services. against said estate, with the commissioners on claims, which was disallowed. The commissioners' report was dated January 7, 1918. On the same day on filing the report the probate court made an order for the payment of certain claims which had been allowed. On January 24, 1918, the plaintiff filed a notice of appeal with the probate court, and on the same day the record shows an order to have been made by the probate court directing service of notice of the appeal.

That order, after its proper entitling in the court and estate, reads as follows:

"Frank J. Sokup, having filed in said court notice of, and reasons for appeal to the circuit court for said County from the order of said court made on the 7th day of January, 1918, and the said Frank J. Sokup having given a bond on such appeal, which has been duly approved, it is ordered that notice of said appeal be given to Effie N. Davis, executor of said estate, by personal service of a certified copy of this order and of said notice for appeal." Signed by the probate judge.

The statute gave plaintiff 15 days from the date of said order to give notice of appeal to the defendant. The notice of appeal was given to, and served on, defendant on February 9, 1918. The statute also gave

206-Mich.-10.

plaintiff 20 days from January 7, 1918, in which to make application for an appeal to the circuit court. The record shows that the appeal bond was approved on the 24th day of January, 1918. An exemplification of the record, signed by the register of probate and bearing date February 9, 1918, certifies to the correctness of the notice of appeal, the order directing notice of appeal, the bond on appeal, and so forth, to be a correct transcript of the original records. The transcript having been filed in the circuit court, counsel for defendant, on March 6, 1918, entered a motion to dismiss the appeal for the reason that the notice of appeal, with reasons therefor, was not given by said Frank J. Sokup within the time directed by the statute in such case made and provided; and the motion was based upon the files and records in said cause. This motion was denied in the circuit court on March 18, 1918. A certificate was filed by the judge of probate, March 18, 1918, certifying that at the time of the notice of appeal and the appeal bond were filed by Frank J. Sokup in relation to his claim against said estate, no approval of said bond and no order for service was immediately made. He certified that on examining the bond he was uncertain whether the surety was a married woman, and on that account he did not approve said bond immediately; that the attorney for the estate made objection to the bond, and the matter of said approval was delayed several days. He was unable to state more definitely just how many. He further certified that the order for service and approval of the bond was afterwards dated as of the day when application for appeal was made; that said order for service was not made and ready on the day it bears date, neither was said bond approved on said day; and there was therefore no order which could have been served by appellant on the 24th day of

January, 1918, the day of the application for appeal, and for several days thereafter.

The record also shows an affidavit of Carrie H. Emery, sworn to March 13, 1918, in which she states that she is a clerk in the office of Charles E. Ward, attorney for Frank J. Sokup in the case; that said Ward was employed by said Sokup to appeal from the decision of the commissioners on claims; that under his direction she caused to be prepared a claim of appeal and appeal bond, and caused same to be filed in the probate court for the county of Kent on the 24th day of January, 1918; that within three or four days thereafter she called said probate court and talked with a clerk therein, asking when she could get the order for service; that said clerk informed deponent that the said order had not yet been made, for the reason that the judge had not yet approved the appeal bond; that on several occasions thereafter she called the probate court in the same matter, and as often told that said bond had not yet been approved and said order not yet prepared; that some time in the week of February 9, 1918, she again called the said court, talked with the clerk, and again asked about the matter, and was again told that said bond had not been approved or the order prepared; that she then asked the clerk what the reason was, and she was informed that there was some doubt in the mind of the judge about the surety, and that the judge wanted to inquire of the deponent about her; that deponent talked with Judge Higbee over the telephone and informed him that the surety on said bond was an unmarried woman, and gave him such information as he desired in regard to her property; that within two or three days thereafter, and on the 9th day of February, 1918, deponent was informed that said bond been approved and said order of service made, and that the necessary papers were ready for service;

was

had

and thereupon said Ward gave direction that said papers be served immediately, and that service and proof thereof was accordingly made; that deponent had knowledge of the service of said papers and administered the oath to the person who made the service, and had knowledge of the filing thereof in the office of the clerk of the circuit court for the county of Kent; deponent therefore says that said service was made within 15 days after said order of service was made.

Thereupon, on March 20, 1918, defendant's counsel entered a second motion to dismiss the appeal. That motion embraced the same reason which was assigned in the first motion, and also the following:

"That the appeal bond of the said Frank J. Sokup in said matter was not brought to the attention of, and approved by the probate judge for the county of Kent on or before the 27th day of January, 1918, the date of the expiration of the time for appeal in said court; in fact said appeal bond was not approved by said probate judge and filed until several days after the date of the expiration of the time for taking an appeal, as provided by statute, and as more fully shown by the certificate of Clark E. Higbee, judge of probate of said county, hereto attached."

The attached certificate of the judge of probate bears date the 20th day of March, 1918, and, after proper entitling, is as follows:

"I, Clark E. Higbee, judge of the probate court for the county of Kent, do hereby certify that the appeal bond of Frank J. Sokup on his appeal from the decision and report of the commissioners on claims of said estate, was not brought to me for my approval on or before January 27, 1918, but was brought to me for approval, and was approved by me several days after the 27th day of January, 1918."

The second motion to dismiss the appeal was denied by the circuit court on the 29th day of March, 1918. Defendant's counsel then applied to this court for a