This is an appeal, prosecuted as of right, by plaintiff, from an order setting aside a default and judgment.

The record shows that application by plaintiff for leave to appeal was denied by this court. Review, if any, is by mandamus and not by appeal. *Page 643

Counsel invokes the statute, 3 Comp. Laws 1929, § 15491, and Court Rules Nos. 55 and 60 (1931). The statute relates to final judgments, and plaintiff has no judgment, but seeks direction, by this court, to have his judgment reinstated. The mentioned rules, while requiring mandamus to be termed an appeal, do not change the law that it is an original writ, and that it does not issue without application and allowance.

Leave to prosecute an appeal in the nature of mandamus was necessary and was not obtained. We, therefore, sua sponte, dismiss the appeal.

Defendant, not having filed a brief at the time this opinion was written, will not recover costs.

CLARK, C.J., and McDONALD, POTTER, SHARPE, NORTH, FEAD, and BUTZEL, JJ., concurred.