Long v. Swanson
Long v. Swanson
Opinion of the Court
Sherwood Long, the appellant, timely filed a claim against the estate of Bert George Swanson, deceased. After review of the report and recommendation filed by a referee after a full hearing, the Macomb County Probate Court disallowed the appellant’s claim by order of August 1, 1979. The appellant then timely filed an appeal of right in the Macomb County Circuit Court. That appeal was subsequently dismissed by the circuit court for lack of jurisdiction. The appel
The circuit court dismissal of the original appeal was apparently grounded on MCL 600.861; MSA 27A.861, which provides, inter alia, that a party to a proceeding in the probate court may appeal as a matter of right to the Court of Appeals from a "final order affecting the rights or interests of any interested person in an estate or trust” and MCL 600.863; MSA 27A.863, which provides in part as follows:
"(1) Except when prohibited by statute, a person aggrieved by an order, sentence, or judgment of the probate court, other than an order appealable under section 861, may appeal from that order, sentence, or judgment to the circuit court in the county in which the order, sentence, or judgment is rendered.”1
These provisions are part of the new chapter 8 added to the Revised Judicature Act by 1978 PA 543, which took effect July 1, 1979, one month before entry of the probate court order in question. Since the order in question clearly was entered in a decedent’s estate, the issue is whether or not the order denying the claim was a "final” order and therefore appealable to this Court rather than the circuit court.
Appellant contends that since the order in question does not dispose of all the claims of all the parties in the probate proceeding and does not contain language denominating it as a final order upon a finding that there is no just reason for delay in entry of a final order, the probate court order in question is not a final order under GCR
Since there is no statutory or rule definition of the term "final” as used in MCL 600.861; MSA 27A.861, the determination of which probate court orders are "final” and which are not for purposes of determining the appellate jurisdiction of this Court will have to be made on a case-by-case basis. Unfortunately, there is no useful Michigan case law precedent. Until the enactment of the Revised Probate Code (MCL 700.1 et seq.; MSA 27.5001 et seq.) by 1978 PA 642 and the addition of chapter 8 to the Revised Judicature Act (MCL 600.101 et seq.; MSA 27A.101 et seq.) by 1978 PA 543 the question of finality of probate court orders was
The reason why case law on the question of finality of circuit court orders is of little assistance in determining the finality of probate court orders was well stated in In re Estate of Cook, 245 So 2d 694, 695 (Fla App, 1971):
"It is apparent upon reflection that probate proceedings differ from ordinary litigation in that the rights of outside parties are from time to time determined and orders entered in the course of administration result in payment, or the necessity for filing suit, whereas the ordinary action involves the same parties throughout and a single appeal from final judgment is appropriate.”
The question of finality, therefore, is one which can be determined only by analysis of the issues decided by a particular probate court order and its precise effect on the rights of the parties involved.
A probate court order entered pursuant to MCL 700.702; MSA 27.5702, disallowing a claim filed in a decedent’s estate, is dispositive of the rights of the claimant leaving the only remaining remedy appellate review. Further, MCL 700.705; MSA 27.5705 allows the assessment of costs against an
The application is denied.
As amended by 1979 PA 69, effective July 25, 1979.
GCR 1963, 11.1:
"Generally. These rules govern the practice in the circuit courts, recorder’s court, court of appeals, and the Supreme Court, in actions of a civil nature whether heretofore cognizable as actions at law or in equity. * * *”
PCR 11.2:
"Scope, Relationship to General Court Rules. These rules govern the practice in the probate courts in all proceedings other than proceedings in the juvenile division of the probate court. * * *”
Although the precise issue of whether MCL 701.45a; MSA 27.3178(45.1) provided an appeal of right from the probate court to the circuit court was not discussed in Reist v Bay Circuit Judge, 396 Mich 326; 241 NW2d 55 (1976), the opinion of Justice Levin, concurred in by two other Justices, refers to the appeal provided by this statute as being an appeal of right (at pp 333 and 350). The opinion of Justice Coleman, concurred in by one other Justice, 396 Mich 352, 353, describes the appeal provided by this statute as one the circuit court may not refuse to hear if timely filed. This description is the essential characteristic of an appeal of right.
Reference
- Full Case Name
- In re SWANSON ESTATE LONG v. SWANSON
- Cited By
- 1 case
- Status
- Published