f151 97 612 660 CLARENCE J. LELAND V. THE TOWNSHIP OF BLAIR. Practice in Supreme Court-Writ of error—. A writ of error will not be dismissed for the failure of the appellant to print and serve the record, as required by Supreme Court Rule No. 59, where neither party has ever noticed the case for hearing. Motion to dismiss a writ of error for want of prosecution. Argued May 31, 1893. Denied May 31, 1893. Plaintiff sued out a writ of error on April 6, 1892, the bill of exceptions having been settled in February previous. The original record was filed in this Court on April 27. 1892, since which time plaintiff has done nothing towards prosecuting his appeal. Defendant moved to dismiss the writ for want of prosecution, basing its application upon Supreme Court Rule No. 59, which provides that the appellant shall serve upon the opposite party a printed copy of the record at least 25 days before the first day of the term for which the cause is or shall be noticed for hearing. Covell & Gilbert, for motion. Pratt & Davis, contra. PER CURIAM. The motion to dismiss the writ in this case under Rule 59, for not printing record, is denied, it appearing that neither party has ever noticed the case for hearing. 97 613 108 130 THE JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY 97 613 154 141 Estates of deceased WAYNE COUNTY. persons-Contingent claim-Disallowance— Mandamus will not lie to compel a probate judge to allow a contingent claim against the estate of a deceased person, the proper remedy being by an appeal from the order of disallowance. Mandamus. Order to show cause denied May 31, 1893. Relator petitioned the probate court of Wayne county for the allowance against the estate of a deceased person of a contingent claim which had become absolute after the expiration of the time limited for creditors to present their claims. On the hearing the respondent refused to allow the claim, and dismissed the petition, and relator applied for mandamus to compel the allowance of the claim. Alfred Russell, for relator. PER CURIAM. An order to show cause is denied, the remedy being by appeal where a contingent claim against an estate is disallowed by the probate court upon a hearing. ALLISON L. HITCHCOCK V. GEORGE S. HOSMER, CIRCUIT JUDGE OF WAYNE COUNTY. •Mandamus-Sufficiency of petition. Mandamus will not lie to vacate an order setting aside a judgment where the petition fails to show that an application has been made to the circuit judge for the relief asked.1 Mandamus. Order to show cause denied May 31, 1893. Relator applied for mandamus to compel respondent to vacate an order setting aside a judgment. For a full statement of facts, see Hitchcock v. Hosmer, 96 Mich. 297. Bowen, Douglas & Whiting, for relator. PER CURIAM. An order to show cause is denied, the record failing to show that application had been made to the respondent to set aside the order complained of. 'An order to show cause was also denied for this reason, May 31, 1893, in Galloway v. Hosmer, Judge, which was an application to compel respondent to vacate an order substituting attorneys in a case pending in the Wayne circuit. In Loree v. Lenawee Circuit Judge, an order to show cause was denied, without prejudice, March 8, 1893, for failure to furnish a brief statement of the case, as required by Supreme Court Rule No. 58; and the Court refused to consider an application for mandamus in People's Mutual Benefit Society v. Frazer, Judge, October 24, 1893, for a similar reason. ELI LORANGER, TOWNSHIP TREASURER, V. CELESTER C. NAVARRE. Mandamus-Jurisdiction of circuit courts. Where, on an application for a mandamus, it appears that the public interests require the immediate disposition of the case, and forbid the delay of awaiting an opportunity to apply to the circuit court under Circuit Court Rule No. 107, which gives circuit courts jurisdiction in certain mandamus proceedings, an order to show cause will be granted.1 Mandamus. Order to show cause granted June 6, 1893. Relator applied for mandamus to compel respondent to turn over to relator the money, books, papers, and effects belonging to the office of township treasurer. Orders to show cause have been denied on the ground that the application should have been made to the circuit court, under the rule cited, where the object sought was to compel a township treasurer to pay an order (Jenney v. Holland, June 6, 1893); a justice of the peace to issue a criminal warrant (Chamberlain v. O'Hara, June 6, 1893); a street railway to use a certain kind of rails (City of Detroit v. Detroit Citizens' Street Railway Co., June 13, 1893); the chairman of a board of supervisors to sign an order (Wickham v. Kelley, October 24, 1893); a county treasurer to pay the salary of the prosecuting attorney (Wickham v. Browne, October 24, 1893); a board of supervisors to allow a bill (Senate of Happy Home Clubs v. Alpena Co. Supervisors, November 21, 1893). An application will be considered, however, if the circuit judge is disqualified (Manly v. Washtenaw Probate Judge, June 28, 1893). See, also, Backus v. Carleton, post, 624, holding that, where a circuit judge illegally refuses to hear an application for mandamus, the proper practice is to apply to the Supreme Court to compel him to do so. On December 13, 1893, the following rule was adopted by the Supreme Court, regulating the practice as to a review of the decisions of the circuit courts in mandamus proceedings: RULE 65. When, in any case, any circuit court shall allow or deny a writ of mandamus, the party feeling himself aggrieved by such decision may make application to one of the Justices of this Court for the allowance of a writ of certiorari, and, if the same shall be allowed, the cause, when returned into this Court, may be noticed for hearing by either party on any motion day thereafter, unless otherwise ordered. E. R. Gilday and C. A. Golden, for relator. PER CURIAM. An order to show cause will be granted, in view of the fact that the public interests require the immediate disposition of the case, and forbid the delay of awaiting an opportunity to apply to the circuit court. ALMERIN M. TINKER V. THE BOARD OF PUBLIC WORKS OF THE CITY OF JACKSON. Municipal corporations-Appointment to office-Member of council voting for himself-Majority. Where the charter of a city requires that all appointments to office shall be made only upon the nomination of the mayor, by and with the concurrence of a majority of the members elect of the common council, mandamus will not lie to compel the recognition of a member of the council as entitled to an office to which he has been appointed on a nomination concurred in by a bare majority of the council, including himself. Mandamus. 1893. Argued June 6, 1893. Denied June 8, Section 4, chap. 3, of the revised charter of the city of Jackson (Act No. 414, Local Acts of 1889), provides that "all appointments to office shall be made only upon the nomination of the mayor, by and with the concurrence of a majority of the members elect of the council." Relator, a member of the council, was nominated by the mayor as a member of the board of public works of the city, under section 1, chap. 25, of the charter. The council was composed of 16 aldermen, nine of whom, including the relator, voted for relator's appointment to said office. The board |